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House of Lords

Wednesday, 11 December 2013.

3 pm

Prayers—read by the Lord Bishop of Truro.

Northern Ireland: Royal Residence

Question

3.07 pm

Asked by Lord Lexden

To ask Her Majesty’s Government what arrangements are being made to establish a permanent Royal Residence in Northern Ireland.

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, in Northern Ireland Hillsborough Castle is the official residence of Her Majesty the Queen and has been the sovereign’s residence since 1922. The castle is also the residence of the Secretary of State and of the Minister for Northern Ireland. Current proposals are to pass the operation of Hillsborough Castle to Historic Royal Palaces and significantly to increase public access. However, full royal and ceremonial use will continue unchanged.

Lord Lexden (Con): My Lords, I thank the Minister for telling the House about the important decision to place Hillsborough in the guardianship of the Historic Royal Palaces trust. Does not the existence of a permanent royal residence both symbolise and underline the enduring commitment of the Royal Family to all sections of the community in this part of our country—a commitment perhaps best expressed by the late Queen Elizabeth the Queen Mother, who once told my noble friend Lord Molyneaux that each night she included in her prayers, “God Bless Ulster”? Does my noble friend also agree that it is most fitting that the decision should come in the year that His Royal Highness the Prince of Wales celebrated his 65th birthday, for the cross-community work of his many charitable organisations contributes significantly to progress in Northern Ireland today?

Baroness Randerson: My Lords, I agree with the noble Lord that the Royal Family is to be commended for its loyalty and for the work that it has done with Northern Ireland. We all remember the significance almost two years ago of the Queen’s handshake. The existence of Hillsborough Castle as a royal residence is guaranteed under the new arrangements, and full facilities for royal access will be there. It will be easy for members of the Royal Family to use the castle when they wish for their royal duties in Northern Ireland.

Lord Alderdice (LD): My Lords, does my noble friend accept that, given the extraordinary—indeed, transformational—effect of Her Majesty’s visit to the Republic of Ireland, and the fact that Hillsborough Castle is not only a royal residence but a place of enormous political significance on the island of Ireland because of the signing of the Anglo-Irish agreement and the importance of other negotiations, there is a

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real possibility of tourist potential not just from within Northern Ireland and the rest of the United Kingdom, but that many people south of the border will be keen to come to Hillsborough Castle for its associations with Her Majesty and the Royal Family, as well as the important political associations that it also has?

Baroness Randerson: My Lords, the intention is that the new arrangements will make it easier to attract both domestic and foreign tourists to visit Hillsborough Castle. It is important to remember that as well as being a beautiful castle—a beautiful building with beautiful grounds—it has tremendous historic significance. It is important to remember that royal tourism alone is estimated to be worth £500 million a year to the United Kingdom. Therefore, it is important that we open up the castle as much as possible—and considerably more than has been possible in the past.

Lord Empey (UUP): My Lords, in welcoming the Minister’s reply, I will ask her two questions. Firstly, Hillsborough Castle is owned by the Northern Ireland Office. When is it anticipated that it will be transferred to the Historic Royal Palaces trust, and will any additional trustees, including a trustee from Northern Ireland, be added to the trust board?

Baroness Randerson: There will be no change to the ownership of Hillsborough Castle. An agreement will be signed with Historic Royal Palaces. It is anticipated, following negotiations, that it will be signed next April, but there will be a transition period of two to three years before the full handover to the new arrangements is complete. On the question of trustees, a Northern Ireland group already exists in relation to Hillsborough Castle. It is intended that this should be refreshed and set up anew under the new arrangements. It will have a strong representation from Northern Ireland, as well as trustees appointed by Her Majesty the Queen.

Lord Hamilton of Epsom (Con): Does my noble friend accept that if Scotland votes for independence, the future of Balmoral must be called into question? Would that situation not make it even more important that there is a royal residence in Northern Ireland?

Baroness Randerson: My Lords, along with many of your Lordships, I am concentrating on supporting the Better Together campaign. I am not making plans, and neither are my noble friends, for any future situation in Balmoral.

Lord Bew (CB): My Lords, does the Minister accept that the fact that she is able to make this announcement today reverses the great historic error of the 19th century in not having a royal residence in Ireland, and that it can only be done because of the stability brought to Northern Ireland’s constitutional status as a result of the Good Friday agreement of 1998?

Baroness Randerson: Hillsborough has been in its current situation since about 1922, I believe, but the noble Lord makes a very good point. It is the stability of the political situation that has made it possible for

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the Northern Ireland Office to consider new arrangements for the management of Hillsborough Castle, and to ensure at the same time that security levels are maintained. That will be possible under the new arrangements because of the security and political situation.

Lord Dannatt (CB): My Lords, I declare an interest as a trustee of Historic Royal Palaces. Will the Minister confirm that there has been very widespread consultation both within Northern Ireland and in Ireland itself, and that the experience of Historic Royal Palaces in running five additional palaces in the United Kingdom gives the charity great experience? I hope that the Minister will also agree that we can have every confidence that this will be a successful and prominent move for the future that will make the castle more available to all people, both tourists and local residents.

Baroness Randerson: I am delighted to confirm that the Northern Ireland Office sought a secure and prosperous future for Hillsborough, and one that would enable it to be opened up to the public. Historic Royal Palaces was the obvious choice, because as an organisation it does not depend on public money and it has a very well established position through the five palaces it already runs. Indeed, it is the case that the Royal Family has already signed an agreement with Historic Royal Palaces about the future use of Hillsborough Castle.

Schools Careers Service: Apprenticeships

Question

3.15 pm

Asked by Baroness Bakewell

To ask Her Majesty’s Government what steps they are taking to ensure that career services in schools make pupils fully aware of apprenticeship opportunities open to them.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, schools are legally required to secure independent careers guidance for 12 to 18 year-olds, and that includes information on all education and training options, including apprenticeships. We will publish revised statutory guidance to help schools deliver better support to pupils, including about apprenticeships. Young people are most likely to be influenced by hearing directly from employers and apprentices. We will be strengthening the importance of partnerships between schools and businesses via the National Careers Service. Ofsted is ensuring that careers guidance and pupil destinations will be given greater priority in inspections.

Baroness Bakewell (Lab): My Lords, I thank the noble Lord for that Answer, but given that the House of Commons Business, Innovation and Skills Committee report of 2012-13 found that,

“awareness and resources in schools and colleges remains lacking”,

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expressed disappointment with the National Apprenticeship Service and recommended that the NAS should be given statutory responsibility for raising awareness of apprenticeships, can he explain how far these recommendations have been carried out?

Lord Nash: The National Apprenticeship Service funds the Education and Employers Taskforce, which is a programme to deliver knowledge about apprenticeships to schools. We also had 70 advisers from the National Careers Service and Jobcentre Plus stationed at the Skills Show in November. The National Careers Service and the National Apprenticeship Service ran a jobs bus road show, and we are pursuing a number of other measures in this area.

Baroness O'Cathain (Con): My Lords, is my noble friend aware of the huge amount of work going on in the area of apprenticeships? Sub-Committee B of the European Union Committee is taking evidence on youth unemployment at the moment, and the great finding is that many large companies are actively getting involved in apprenticeships for the first time in many years. We have heard about some outstanding examples of this, and when our report comes out I think that he might be surprised.

Lord Nash: I am grateful for my noble friend’s comment. Our priority is to expand apprenticeships, particularly where they deliver the greatest benefits to young people, are of high quality, last longer and are more rigorous. Of course, since this Government came into power, we have delivered 1.5 million new apprenticeships.

Lord Young of Norwood Green (Lab): My Lords, is the noble Lord aware that, when I speak to young people in a wide variety of secondary schools as part of the House of Lords outreach scheme, there is little or no knowledge of 16-to-18 apprenticeships, and that schools are focused on sixth form recruitment? What action are the Government taking to ensure that all secondary schools offer impartial guidance, have links with local businesses, and invite young apprentices to speak to pupils?

Lord Nash: I agree entirely with the noble Lord that links between schools and businesses are key. Schools can no longer feel that they need just to teach; they have to open their doors to businesses, and businesses have to engage with them. In my travels around the country, I have not found any difficulty with businesses wanting to engage with schools; it is usually a question of putting in place the structures. The organisation Business in the Community has a marvellous programme called Business Class which is providing careers advice, mentoring and workplace experience to 300 groups of schools. There is the Glass Academy in Sheffield and a number of other such models. However, we need to widen these efforts, and I know that the Social Mobility and Child Poverty Commission made some excellent recommendations in this area a couple of months ago.

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Baroness Howe of Idlicote (CB): My Lords, will the Minister confirm the steps that I am sure the Government must be taking to ensure that as many girls as boys are aware of these apprenticeship schemes, particularly in engineering, where there are certainly very many more young boys than young girls taking up these apprenticeships at the moment?

Lord Nash: I entirely agree with the noble Baroness. It is very important that we get a higher participation rate of girls in STEM subjects. We are funding the Stimulating Physics Network and the Further Maths Support Programme to increase the take-up of A-level physics. The STEM Ambassadors programme gives careers advice on more technical qualifications and apprenticeships. However, as my colleague Liz Truss said recently, it is excellent teaching and a culture of equal aspirations for all that will help engage more girls, so all we are doing to improve the quality of teaching helps in this regard.

Lord Addington (LD): My Lords, can my noble friend assure me that a teacher or careers adviser will be able to advise a dyslexic pupil in a one-to-one interview that he or she can now access, or will soon be able to access, the apprenticeship system, as the barriers to dyslexics getting through the functional skills test in English and maths will be removed?

Lord Nash: My noble friend speaks with great passion and personal experience on this subject; I have heard him do so many times, and we have already met on this subject. The Government are aware of the technical issues with assisted technology in the English and maths assessments. We are meeting the British Dyslexia Association, Ofqual and the Dyslexia Trust to try to ensure that we send a very clear message to all involved, providers and examiners, that there is the ability to use screen readers, in the case of dyslexia, as well as other assistive technology. I think that my noble friend knows that he has my personal commitment —if he does not know, I give it to him now—that we will do as much as we can to sort this out.

Baroness Wall of New Barnet (Lab): My Lords, in response to my noble friend’s earlier question, the Minister said that it was really down to employers to do more work. Is he aware that employers try very hard to be in touch with schools, but that there is an issue around head teachers, in particular, encouraging that? As my noble friend Lord Young said, rather than aiming primarily for academic qualifications, this country needs very good apprentices; we need women apprentices, as the noble Baroness, Lady Howe, said, but we also need people to get engaged with apprenticeships and be encouraged to do so. That is not evident.

Lord Nash: I am sorry to hear the noble Baroness make that comment. I think that it is a two-way street. We need schools willingly to engage with all walks of business for all apprenticeships, but I still hear shocking stories about schools being reluctant to send their pupils on them and heads being too focused inwardly. They cannot give their children a good education

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unless they give them a direct line of sight. I have been so impressed talking to young people about how the experience of going to the workplace and meeting people in work has raised their aspirations. From this they have managed to reverse-engineer backwards what they need to do to achieve this themselves.

Payday Loans

Question

3.23 pm

Asked by Lord Selsdon

To ask Her Majesty’s Government what steps they are taking to regulate the issue of payday loans to those without a regular income.

Lord Newby (LD): My Lords, the Government have made it clear that payday lenders should make loans only to those who can afford to pay them back. From April 2014, the Financial Conduct Authority will require lenders to undertake thorough affordability assessments to ensure that borrowers are able to make sustainable repayments. No later than January 2015, the FCA will cap the cost of payday loans so that borrowers in financial difficulty do not face spiralling debt.

Lord Selsdon (Con): My Lords, I am most grateful to the Minister for his reply, but he has not actually given me the answer I needed because my skills at mathematical calculations are not great at the moment. If my noble friend wanted, for example, to take out a payday loan for £1,000 to cover him over the Recess, what would the rate of interest and repayment be over a matter of a few weeks?

Lord Newby: Almost certainly too high, my Lords.

Lord Mitchell (Lab): My Lords, in 2008, 12 million people viewed advertisements for payday lending companies. Last year, the total was 7.5 billion. Do the Government feel that the time has come for us to ban advertising for payday lending on television, particularly when it is directed at children?

Lord Newby: My Lords, the Advertising Standards Authority has been looking at a rising number of complaints about payday loan advertising on television. It has the power to ban misleading ads and already has done so in respect of ads placed, for example, by Cash Lady and FirstPayDayLoanUK. From April next year, the FCA will have the power to ban misleading financial promotions. It will be able to look at advertising and the whole way in which payday loans are promoted under that new power.

Lord Martin of Springburn (CB): My Lords, there is deep concern in the social and community-based housing movement because the payday loan operators get access to people’s personal accounts to take the direct debit. The danger is that when people receive a rollover loan, in many cases the payday loan company has taken all the money out of that account and left

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the housing association with a tenant who is in deep arrears. Sometimes they are forced to take out eviction notices, which they are very reluctant to do. Can this be looked into?

Lord Newby: My Lords, this matter has been looked into. The Financial Conduct Authority, which takes responsibility in this area from next April, has already proposed limiting continuous payment authorities to two payments and reducing rollovers to two. It has the power to constrain them further than that if that is still seen to be an issue. That is one of the things that the FCA will look at as part if its assessment of the total cap of the cost of payday loans, which it is currently considering.

Lord Razzall (LD): My Lords, I will follow the previous two speakers but extend the question a little more widely. What steps do the Government propose to take to ensure that payday loan operators cannot simply move their headquarters overseas and operate outside the restrictions that are going to be brought in?

Lord Newby: My Lords, under the e-commerce directive, which was introduced during the lifetime of the last Government, payday loan operators are able to relocate. However, a majority of EU member states already have some kind of cap on the cost of payday loans, even if not necessarily as comprehensive a cap as we have, and there is an ongoing debate in those member states that do not yet have a cap about implementing one. There are already a majority of EU member states to which it would almost certainly be uneconomic or pointless for payday loan lenders to switch their bases of operation.

Lord Kinnock (Lab): My Lords, when the lenders invariably advertise the ease of access to money and, even more crucially, the ease of repayment, can their adverts ever be anything but misleading?

Lord Newby: My Lords, a lot of effort is being undertaken by the FCA to make sure that the adverts are not misleading. We debated this at Third Reading of the banking reform Bill. The key thing is that people should know what the repayments are, not just in terms of the interest rate—people are very often not desperately familiar with that—but in terms of being absolutely clear about what they have to repay and when. The point that possibly lies behind the noble Lord’s question is whether there should be payday loans at all. As long as payday loans are legal, people have to make some sort of assessment about whether they are going to be in a position to repay them. What the Government and the FCA are committed to doing is to make the costs as clear as possible and limit the potential downside of less than prompt repayment.

The Lord Bishop of Truro: My Lords, what consideration, if any, has been given to introducing a real-time database of payday loans in order to ensure that the proposed FCA rules can be properly monitored and enforced and, in particular, to avoid the problem—a special one at this time of year—of people being able to take out multiple loans from different companies at the same time?

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Lord Newby: My Lords, a real-time database is one of the things that the FCA will be looking at. In some of the countries and US states where they have effective caps on the cost of payday loans, such systems have been seen to work efficiently and be very effective.

Lord Davies of Stamford (Lab): My Lords, we heard a moment ago about the danger of lenders from other EU countries undercutting any legislation or regulation that we introduce in this country. Has the noble Lord considered discussing with the European Commission the possibility of legislating on an EU-wide basis for the single market as a whole?

Lord Newby: My Lords, this is a rapidly moving area. If you go back five years, it was not an issue. We are discussing with other member states the operation of the consumer credit directive, for example, and the way in which the market is evolving. As the FCA moves towards putting in place a cap of the total cost of payday loans, we will see exactly how the system is working in the majority of those member states that already have a cap and whether there is any real advantage in moving to a Europe-wide system, or whether the series of national caps is proving effective.

China: Exports

Question

3.30 pm

Asked by Lord Wei

To ask Her Majesty’s Government what assessment they have made of the prospects of increasing United Kingdom exports to China following the trade missions led by the Prime Minister and the Chancellor of the Exchequer.

The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con): My Lords, last week I was delighted to help the Prime Minister lead the largest ever UK business delegation to China. Our bilateral trade and investment relationship with China is improving. Exports to China have almost doubled since 2009 and more Chinese investment has come into the UK in the past 18 months than in the past 30 years combined. However, there is more to be done, especially in focusing on areas where the UK has particular strengths and where these match China’s emerging demands. Many of these strengths—healthcare, education, the creative industries and agri-tech, to name but a few—were showcased last week. Several agreements in these sectors were signed during the visit and these will open further opportunities for UK exporters.

Lord Wei (Con): I thank my noble friend the Minister for his response. I look forward to the future growth in exports that will result from these significant and much needed visits, and congratulate him on the role that he played in the most recent one. We know that inward investment from countries overseas such as China and India can help build our capacity for exporting, with Jaguar Land Rover, Aquascutum and many other companies showing the way. However, our current

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measures of success do not necessarily capture the interactions between such investment and exporting. What are the Government doing to encourage, measure and link investment and exporting activities from countries such as China to grow total trade?

Lord Livingston of Parkhead: I thank my noble friend Lord Wei for that point and his efforts in promoting UK-Chinese trade. He is right to raise a number of areas, including export from the UK, imports from China and our relationship as regards investment. During the trip, I was delighted that we announced programmes that will help UK investment in China and Chinese investment in the UK, particularly in the area of the supply chain. We have found that, in a number of areas, to be important in improving our overall trade performance.

Baroness McIntosh of Hudnall (Lab): My Lords, the noble Lord mentioned the creative industries. He will be aware that the delegation of which he was part included members from the cultural sector, including Sir Peter Bazalgette, chair of Arts Council England, Nick Starr, executive director of the National Theatre, and Joey the Horse, the puppet star of the National Theatre’s production of “War Horse”. Does he agree that the cultural sector in this country, particularly the performing arts, is widely respected the world over for the skills and products that it can export? Does he also agree that this is a good reason for the Government to continue to give the cultural sector the maximum possible support?

Lord Livingston of Parkhead: I thank the noble Baroness for her comments and absolutely agree that this was one of the highlights of the trip, particularly Joey the Horse, who got a standing ovation at the gala lunch that we held. Joey was the star of the trip, after the Prime Minister of course. It was not just in culture that our DNA was represented, but in the Premier League as well. This not only has export potential in its own right but is an expression of British soft power and its opportunities. We will certainly make sure that we include the creative industries as part of our overall export effort, and I thank the noble Baroness for her comments about our support of the cultural sector.

Lord Clement-Jones (LD): My Lords, I warmly welcome my noble friend to his new role, and the success of the Prime Minister’s visit to China. I declare an interest as a partner of a law firm. Why did the Prime Minister not find room in his huge delegation for any representative of the UK legal services sector? The sector contributes some £3 billion to our professional services exports; it provides crucial commercial and dispute-resolution services and support for British businesses around the world; and, not least, will help them to take advantage of the new Shanghai free trade zone. I realise that not everybody wants to be accompanied by a lawyer on their travels.

Noble Lords: Hear, hear!

Lord Clement-Jones: However, seriously, how does this square with the continuing support that is being given by the MoJ and UKTI to boost the growth of the legal services sector internationally?

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Lord Livingston of Parkhead: My noble friend is correct that the legal services sector is one of the most important sectors for the UK. He may not be comforted by the fact that we took some accountants on the trip. The law firms were represented, particularly in discussions on the Shanghai free trade zone, in which the UK is going to provide excellent support. The UK legal sector is a great strength, not just as an export in its own right but as a reason for FDI into the UK, because it shows that the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward.

Lord Davies of Coity (Lab): My Lords, we know that nothing happens in China except by the leave of the Communist Party, which controls the whole of China. We know what the British delegation wants from China. Can the Minister tell the House what the Chinese want?

Lord Livingston of Parkhead: The Chinese refer to us as partners for growth. Particularly since the third plenum, the Chinese see a real opportunity to partner the UK in key areas, as China expands its cities and needs to make its environment greener—there are a lot of environmental issues in China. UK products are loved in China. The cultural sector was mentioned earlier. Yes, we can mention whisky. We have even been selling tea to China, which is remarkable. Going forward, the UK’s products and services are ideal for what China needs as a result of the change in its economy. We look forward to continuing to increase our exports to China, because we have a lot of ground to make up.

Lord Howe of Aberavon (Con): No doubt my noble friend is aware that during the past year, the China Investment Corporation—a sovereign wealth fund—has taken a 9% stake in Thames Water and a 10% stake in Heathrow. This year, another Chinese corporation, Advanced Business Park, has said that it will undertake a £1 billion redevelopment of the Royal Albert Dock. Is it not clear that we are looking not at a single arrangement but at a joint, substantial, two-way partnership between the two countries?

Lord Livingston of Parkhead: I thank my noble and learned friend for that comment. We are certainly seeing substantial investment from China into the UK—and, indeed, vice versa. We visited a city where Diageo has made a large acquisition. WPP is a very strong firm in China. It certainly is a partnership. China, as one of the most powerful nations in the world, having a stake in the success and growth of the UK economy is certainly no bad thing either.

National Insurance Contributions Bill

First Reading

3.38 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

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Energy Bill

Commons Reason

3.39 pm

Motion A

Moved by Baroness Verma

That this House do not insist on its Amendment 105, to which the Commons have disagreed for their Reason 105A.

105: Page 125, line 3, at end insert—

“(iii) substantial pollution abatement equipment dealing with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.”

Commons Disagreement and Reason

The Commons disagree to Lords Amendment No 105 for the following reason—

105A

Because it is inappropriate for the fitting of pollution abatement equipment to cause the emissions limit duty to apply to existing generating stations.

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con): My Lords, we return to discuss the emissions performance standard and whether it should be possible to apply it to existing coal plant in wider circumstances than the Bill currently envisages. The Government set out in earlier debates, both in this House and in the other place, why we believe Amendment 105 is unnecessary. It has become clear over the course of the debates that there is an almost unanimous consensus on the need substantially to decarbonise our electricity generation by 2030. There is a similar consensus that there will be little or no role for unabated coal generation in that future.

In this Bill, the Government have brought forward a suite of measures that they believe will deliver the outcomes that we all wish to see. The Bill will do so without risk to our security of supply and at the lowest possible cost to the consumer. The Government believe that they already have the right balance of measures to deliver a secure, low-carbon electricity system at the lowest cost.

Amendment 105, proposed by my noble friend Lord Teverson, would allow application of the emissions performance standard to any coal-fired power station that fits the pollution clean-up equipment needed to meet the requirements of the industrial emissions directive. To date, only one station, Ratcliffe-on-Soar, is fitting the equipment needed to comply with the directive and there is no evidence that a large number of others are seeking to do the same. However, this amendment could result in all but one of the 12 coal-fired power stations expected to be operational after 2015 being subject to limited hours or forced closure under the directive. There is a risk that this, in turn, could lead to a scenario where more stations close earlier than might otherwise be the case. Were this to happen, it would require more gas generation to be built earlier than we currently project and, crucially, result in increased cost to consumers.

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As my right honourable friend the Minister set out in the other place, we already face a significant investment challenge that will require an estimated 16 gigawatts of new gas plant to be built over the decade from 2015 to 2024 and around 45 gigawatts in total of all forms of generating capacity in this period. My department has therefore looked at a scenario where all our coal-fired power stations close by 2025, which is one possible risk of this amendment. The results of this analysis show that, as a result, in the 2020s average household electricity bills would be around 3% to 4% higher, average non-domestic bills would be around 4% to 6% higher and average energy-intensive industry bills would be around 5% to 7% higher.

The Government are taking a balanced and precautionary approach that seeks to protect consumers and ensure our security of supply. Our emissions performance standard is ambitious—the first in Europe—but it is right that ambition should be balanced with measures for a sensible transition. Ultimately we must ensure that we transition to a low-carbon economy in a way that provides certainty for investors, secure energy and is deliverable at the lowest possible cost to consumers.

Amendment 105B proposed by the Motion of the noble Lord, Lord Oxburgh, would bring all existing fossil fuel plants within the EPS regime from 2025, thereby requiring them to operate within the annual emissions limit set by the EPS. In common with fossil fuel plants that are consented after the EPS comes into force and to which it will apply, the power to suspend the EPS contained under Clause 48 could be used to allow those existing plants to operate over and above their limit should it be necessary to avert a threat to security of supply. I am grateful for the spirit in which the noble Lord proposes this amendment but, ultimately, what is at stake with both these amendments is an assessment of risk. I ask noble Lords to consider carefully whether they can be confident that the amendments will not give rise to risks that, were they to materialise, would be difficult and costly to address. The Government do not have that confidence. The question that noble Lords need to ask themselves is: do they have the confidence to take that risk?

It is through the measures in the Bill that we will reform the UK electricity market and attract the capital investment needed to decarbonise our electricity sector at the lowest cost to the consumer. The Government have listened carefully during the passage of the Bill through this House and the other place and have accepted measures that have improved it greatly, but the amendments would add an unacceptable risk. This House insisting on an amendment today will delay the Bill and will serve only to undermine investor confidence. I therefore urge noble Lords to consider both the direct and the wider implications of insisting on their amendments, given those impacts, and that a significant majority opposed this amendment in the elected Chamber. The Government do not believe that the amendments would provide greater certainty without, at the same time, creating risks to our security of supply and of increased costs to the consumer. On the contrary, causing delay to this vital legislation will only create uncertainty and risk delaying investment in our energy sector when it is needed most. I beg to move.

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3.45 pm

Motion A1

Moved by Lord Teverson

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 105.”.

Lord Teverson (LD): My Lords, I am very aware of my noble friend's remarks. I am also aware of the various matters around this issue. I believe that it is important that we still try to reach a compromise of some sort. Therefore, I wish to reserve my remarks and withdraw my amendment in support of the noble Lord, Lord Oxburgh, in trying to reach a compromise. I therefore beg leave to withdraw my amendment.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A2

Moved by Lord Oxburgh

As an amendment to Motion A, at end insert “, and do propose Amendment 105B in lieu”

105B: Page 46, line 31, at end insert—

“( ) No fossil fuel plant shall operate after the year 2025 if its emissions are not less than the statutory rate, unless it has been exempted under the provisions of section 48 (suspension etc of emission limit in exceptional circumstances).”

Lord Oxburgh (CB): My Lords, I do not think that I have any relevant interests to declare, but I draw attention to the published record.

We have heard why the Minister feels that we should not persist with the amendment of the noble Lord, Lord Teverson, which was passed by this House with a substantial majority. Noble Lords may also have read the Minister of State’s speech in the other place. Having read the arguments, I concluded that there was little between the Government and those supporting the amendment. For that reason, I am today offering a differently worded amendment that to many of us seems both to meet the spirit of the amendment of the noble Lord, Lord Teverson, and to satisfy government concerns.

I am doing that in my capacity as unofficial chairman of this House’s unofficial cross-party Energy Bill group, which first carried out the unofficial pre-legislative scrutiny of the Bill at the request of the then Energy Minister in our House, the noble Lord, Lord Marland. The group has held widely advertised regular meetings with the Minister and officials during the passage of the Bill, and I take this opportunity to place on record our gratitude.

I also thank the Minister for yesterday convening another meeting of the group and for securing the attendance of the Minister of State for Energy. We heard what he had to say, and he heard what we had to say. We offered him the amendment that is before you today, but his officials advised him not to accept it. I think that to pretty much all those present the reasons offered for not accepting it were pretty thin.

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The fundamental purpose of the present amendment —and, indeed, the original Teverson amendment—is to make clear that a role for unabated coal in the national energy mix is not foreseen beyond 2025. Indeed, that is the Government’s position. In the other place, the Minister indicated that he expected the overall contribution of coal to our electricity generation in 2025 to be about 3%. In the unlikely event that external events made it look as though unabated coal would be needed longer, the Bill already contains provisions to deal with that unlikely eventuality.

Noble Lords may ask why we are bothering with this now. It is simply to provide an additional crumb of confidence to those who are contemplating investing in new, gas-fired power generation. It is a bad time for investment in energy utilities and it would be helpful to have a clear indication that gas will be our main means of fossil-fuel generation from the 2020s onwards. It is probably unnecessary to point out that this amendment could have no real effect on energy prices in the foreseeable future. This is mostly because the amendment would have no effect on generation until well into the next decade and partly because power price is largely determined by the swing producer, which is gas. At present, coal is cheap and is making an increased contribution to our power generation. However, you will have noticed that this does not translate into lower electricity prices but rather into better margins for coal-fired power stations.

The Government have said it is urgent that this Bill should become law. We agree, and a simple way of ensuring this is to accept this constructive and simple amendment. I beg to move.

Baroness Worthington (Lab): My Lords, if there is no one else who wishes to speak now, I will.

Here we all are, almost at the end of the process of electricity market reform in the Energy Bill. We have spent many months debating these interventions in the electricity market and felled a fair few trees printing all the documents. However, despite all this effort, the Bill is still deficient in a number of important respects. It fails to bring about true competition in generation, handing yet more power and money to incumbents via the capacity mechanism, and it fails to make clear that the objective of all this intervention is to decarbonise our electricity. The net effect of these deficiencies is that the process of decarbonisation, which the Bill seeks to introduce, is more expensive than it need be.

The original Amendment 105 and the new compromise amendment tabled by the noble Lord, Lord Oxburgh, seek to achieve the same thing: providing a back-stop for existing government policy that seeks to make unabated coal a diminishing part of the energy mix by preventing lock-in to high-emissions plant in the 2020s. This plant can be upgraded to comply with tighter air quality standards. The more coal we burn, the more effort we have to undertake, using more expensive options, to meet the same emissions reduction targets.

The Government’s chosen policy to constrain coal investment is the carbon floor price, but this is a deeply unpopular and very expensive policy. It lacks credibility as it is a financial Bill measure that can be easily done away with. It therefore creates a huge amount of political risk for investors.

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The emissions performance standard underwrites that policy, reducing risk. The EPS is a tried and tested policy and it has the benefit of providing absolute clarity to the market about what is required. It is already used in California and Canada and in both cases the limit on emissions applies to old coal plant, not just new. In Canada the clarity of that regulation has brought forward investment in the world’s first commercial-scale CCS plant, which will open next year. In the UK we have not followed this but have opted instead to try to tax coal off the system—an option that is not delivering at the moment. Unfortunately, there is a great risk that this course of action will continue to fail and operators of coal will decide to sweat their assets for longer, using the large up-front payments they will now receive from the capacity market.

The original amendment required the old coal stations seeking life extensions to operate for only 40% of the time, under the EPS limit, guaranteeing that they would be available for the peak but not allowing them to baseload. In rejecting the amendment, the Government argued in the other place that this change might dissuade some plant from upgrading at all and therefore reduce the amount of plant available for peaking.

The noble Lord, Lord Oxburgh, has listened to these concerns and now tabled an amendment which offers a different approach. His amendment would require the limit on emissions equivalent to 40% of capacity to apply only in 2025, 12 years from now. Operators of upgraded plant would therefore be able to use their three-year capacity payments to offset the costs of upgrading and continue to sweat their assets for another five years at full capacity, which would then be available for 40% of the time thereafter. This seems like a good deal. By 2025, all but one of the six plants that this amendment would apply to will be more than 55 years old, having emitted together over 1 billion tonnes of CO2 over their lifetimes, so 2025 is well past their closure date.

This amendment is a compromise but one which still has the benefit of clarity for everyone: clarity for the coal plant; clarity for gas investors; and clarity for the environment. To leave things as they stand is to allow a known unknown to persist needlessly. With no decarbonisation targets to guide government policy—

Lord Forsyth of Drumlean (Con): The noble Baroness is probably drawing her remarks to a close but before she does so, can she explain to me how what she is saying in supporting this amendment is consistent with the leader of the Opposition’s declared policy to hold down energy prices and with maintaining security of supply?

Baroness Worthington: It is absolutely consistent because what we have said is that we will seek out the least costly forms of carbon abatement. There is no cheaper way of reducing carbon dioxide than using existing gas stations in place of existing coal stations. That is how the UK decarbonised its economy in the 1990s and that is how we should be doing it again now. However, there is sufficient doubt about that, because of the price of coal relative to the price of gas. It is absolutely consistent to say that we want to keep prices low by supporting this amendment.

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One of the things that the Government are currently struggling with is that, at the root of this, there is not sufficient clarity in the backing of these decarbonisation objectives. It would obviously be very easy to solve the energy trilemma by simply lopping off one of the legs. If you simply say, “All we need to do is keep the lights on at least cost”, there is no problem; you would stick with the coal. It seems that this Government are not actually committed to decarbonisation as they have lopped off one of the legs and are seeking a return to coal at just the time when, internationally, we are pressing everybody else to move away from unabated coal.

This is a sensible and moderate amendment, and it gives clarity to everyone. It reduces investor risk, particularly for those people operating gas stations and seeking to invest in new gas stations. I hope that noble Lords on all sides of this House will find that they can support this amendment and I hope that the Minister will ultimately support it, too.

Viscount Hanworth (Lab): My Lords, we have been told that the Energy Bill has two purposes. The first purpose is to secure the much needed investment in new plant for generating electricity. The second is to decarbonise our electricity supply. Amendment 105, which has been rejected by the Government, was closely aligned with these two purposes. Its effect was to ensure that if there were major upgrades to coal-fired power stations, such as to enable them to meet the European emission requirements in respect of sulphates, nitrates and heavy metal contaminations, they should also be constrained to meet the emissions performance standards in respect of carbon dioxide that are imposed by the Bill. The subsequent amendment tabled by the noble Lord, Lord Oxburgh, reinstates this requirement but includes a let-out clause that would allow the Government to alleviate the requirement, if necessary. Presumably, this would be appropriate in a case where the lack of capacity was so pressing as to imply a real danger of the lights going out.

The Minister, Michael Fallon, argued in the Commons that to include such amendments would add to the risks faced by investors. The logic of his position escapes most of us, who believe that the original Amendment 105, or its replacement by the amendment of the noble Lord, Lord Oxburgh, would clarify the intentions of the Bill in a way that would actually encourage investment. Why does that Minister insist on the rejection of these amendments? Is it that he wishes there to be a loophole in the legislation that would allow dirty, coal-fired power stations to remain in operation, notwithstanding the ostensible purpose of the Bill? There are certainly grounds for such a suspicion. However, the Minister has asserted on several occasions that he doubts, even with the allowances the Bill affords, whether any of the old coal-fired power stations have a future.

Perhaps we should believe in his good intentions and allow ourselves to look elsewhere for the reasons for his intransigence. The reasons are not hard to find. The Minister has a need to conciliate a faction in his party that is firmly opposed to all measures aimed at staunching the emissions of carbon dioxide. They point to the cases of Germany and the Netherlands,

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which are in the act of commissioning unabated coal-fired power stations. They demand to know why Britain should be imposing constraints upon itself when others are failing to do so.

4 pm

I believe that the Minister’s stance has the sole purpose of allowing this faction to believe that the intentions of the Energy Bill can be eventually subverted. If he does not himself intend this outcome—and we must be generous enough to believe this—then he must be intent on bamboozling some of the members of his own party whose objectives differ from his own. This is not the sort of consideration that should influence the legislation. The legislation will be greatly clarified by the inclusion of these amendments, which would make its intentions unequivocal. On this basis I would urge your Lordships to support the amendment of the noble Lord, Lord Oxburgh.

Lord Jenkin of Roding (Con): My Lords, I will be brief about this. I understand the argument put forward by the noble Lord, Lord Oxburgh, and I accept that he is trying to reach a compromise. This Bill started with the support of all parties in Parliament. I was a little disappointed to hear the noble Baroness’s complaints that the Bill does not meet many of the requirements that she would wish to see in it, but on the whole her party has supported the Bill. Indeed, it has gone further and recognised that the Bill’s passage is deeply important to the future of our energy industries here.

My noble friend Lord Lawson described it as the worst Bill he had ever seen, took part in the first day of Committee and we have not heard from him since. The fact is that everybody else who has taken part in the passage of the Bill has recognised that the new machinery, which sets up the electricity market reform as an essential part of our generation and consumption measures, is crucial for foreign investment—for all investment, but particularly when we have some of the larger foreign companies willing to invest in this country. Nothing upsets them more than if they see that there is uncertainty in Parliament over the Bill.

Picking up one point made by my noble friend Lady Verma, we have offered the other House a chance to consider the amendment that was carried in this House. It was firmly rejected by a much larger majority there than passed it here. That is the purpose of this House. We have done it. It would be extremely damaging to the general intentions of this Bill if, yet again, we were to send it back to the other place. It would send the wrong message.

I understand the points, made by the noble Viscount, that there may be some marginal advantages. I have had representations from the gas industry about this. The overwhelming reason, however, that we should reject the amendment of the noble Lord, Lord Oxburgh, is that the Bill needs to be passed. It should be passed without any further delay. For that reason, I intend to vote very firmly against his amendment.

Lord Turner of Ecchinswell (CB): My Lords, I speak in favour of the amendment. I find it difficult to understand, for anybody who concentrates not on

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tactical issues such as the speed of passing of the legislation but simply on the wording, what their opposition in principle could be. The simple fact of the case is that Parliament several years ago passed an Act of Parliament by huge majorities, committing us to the very significant decarbonisation of our economy: an 80% reduction in CO2 emissions by 2050. It is the clear conclusion of all analysis, including that of the Committee on Climate Change that I used to chair, that there is no believable path to that emissions reduction by 2050 which does not involve the very significant—almost total—decarbonisation of electricity in particular by around 2030.

Clearly that is completely incompatible with a role for coal other than as providing a small number of hours a year of peaking capacity into the mid or late 2020s. This amendment would simply ensure that that possibility would clearly be excluded—with, however, a get-out under Section 48 if that at all endangered an adequacy of supply. It simply seeks to ensure that we will not have unabated coal in significant quantities in the late 2020s, and it does so 12 years ahead, in order to influence the decisions on investment that are required for security of supply.

I fail to see what the disadvantages of the amendment are. It would give greater clarity over our plans for coal and over the opportunities for gas, and I therefore support the noble Lord, Lord Oxburgh, in his amendment.

Lord Forsyth of Drumlean: My Lords, I am prompted to rise because of the rather unwarranted attack that the noble Viscount made on Ministers. None of us takes responsibility for security of supply in the future. The late Baroness Thatcher used to say that the only thing that was certain in politics was uncertainty. None of us knows what the future holds or what the likely position will be in 12 years’ time. This amendment would remove the flexibility that a future Government would have in order to keep the lights on. It is really quite wrong of the noble Viscount to present this as some kind of political matter that is exercising Back-Benchers in the other place, as he did, with Ministers responding to that rather than to their responsibility to ensure that we have security of supply. I notice that when I asked the noble Baroness on the opposition Front Bench about security of supply, she did not deal with the issue.

At the end of Question Time, we had a Question about China. We are now importing vast quantities of carbon from China because of the expansion of coal-fired power stations there, and exporting jobs that would otherwise have been here. To present this as some kind of neutral political argument—

Baroness Worthington: My Lords—

Lord Forsyth of Drumlean: I shall give way in a second, if I may. I bow to the considerable experience of the noble Lord, Lord Turner, in this matter, but there was a thing called the financial crisis, which he is also very familiar with, which followed and which has big implications for jobs and prosperity in future. Ministers are entirely right to take account of that.

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Baroness Worthington: I thank the noble Lord for giving way. I referenced security of supply in indicating that this would create greater certainty for gas investment, not least by changing the merit order so that gas operated for more of the time. The noble Lord’s interruption made me lose my place at the time, but I was going to go on to mention that I learnt yesterday that one of our biggest renewable projects, the biomass conversion at Eggborough, is now in jeopardy because Ministers in this Government have changed the early CFD feed-in rules in this Bill, which we have yet even to sign into law. The rules have been changed midway through so that the Eggborough project, which currently accounts for 4% of our supply and gives us firm renewables that mean that we can back off from wind, is now in deep jeopardy and is expected to have to close as a result of this Government changing their mind.

Lord Forsyth of Drumlean: The noble Baroness makes my point for me: there is no certainty in the future.

Baroness Worthington: Under this Government.

Lord Forsyth of Drumlean: Under this Government, under future Governments—whatever. All that the Government are arguing in this regard is, “Don’t close off options that may, in the event of the unforeseen happening, occur”. The noble Baroness, who presumably has concluded that she is never going to be in government again, has no interest in that, but those of us who believe that our parties will be in government would like to see our Ministers keep their options open. I hope that the House will reject this amendment.

Baroness Worthington: Does the noble Lord accept, though, that because demand for electricity is currently flat, keeping options open squeezes out investment in new options?

Lord Forsyth of Drumlean: Before I sit down, I say to the noble Baroness that I would be more persuaded by her if she and her party were to be more open-minded about the prospects for fracking, for example, in her advocating the future generation of electricity by gas. As always, though, the noble Baroness wants it both ways, and I hope very much that the House will support my noble friend and reject this amendment.

Lord Teverson: My Lords, I will comment on the amendment of the noble Lord, Lord Oxburgh. I agree and sympathise with my noble friend Lord Jenkin’s point that the Bill needs to proceed and that we must get it on to the statute book. The only reason I have pursued this is that, as the noble Lord, Lord Turner, suggested, the issue of the continued generation of electricity by coal is fundamental to the policies of both this and the previous Government, and therefore needs to be clarified. These two amendments are attempts to increase as far as possible certainty for investors and clarify the way forward. As the noble Lord, Lord Forsyth, said, that is not completely possible, but at least we can start to close down the risks and probabilities, which is one of the main purposes of the Bill. That is why the amendment has been pursued. I have been happy—although reluctant—not to pursue my own amendment but to try to reach a compromise.

11 Dec 2013 : Column 792

Pricing is not a problem here. Would coal being removed from electricity generation lead to the threat of price increases? In the past few years, when coal has come on, we have not seen prices fall; in fact, the more coal has come on the system, the more they have gone up. That is the correlation; I would not say it is directly causal, but that is the history of how this has worked.

On security of supply, the vast majority of that coal comes from Russia and Colombia, with a little bit from the United States as well. The security of supply arguments do not, therefore, all run in one direction. On the question of how the coal generating industry is treated under any of these amendments, it will be free to operate at peak times for a long time. That, along with contributing into the capacity market, will be greatly to the financial benefit of the power station operators.

That is why these amendments are important. I know that this is not important to everybody, but it is estimated that our carbon emissions went up by 4.5% last year, at a time when we were hoping to bring them down. That was because of the increase in coal generation of electricity, according to the Department of Energy and Climate Change.

This is a good Bill. I congratulate my noble friend the Minister on all that she has succeeded in doing during the passage of the Bill. This is the only contentious Lords amendment, and I seriously regret that the Government have not been able to find a compromise or to help us through this important, core issue.

Lord Dixon-Smith (Con): My Lords, I had not expected to intervene in this debate, but the previous two speeches have forced me to my feet. I remind the House that these amendments, and this part of the Bill, are talking about 2025. There is only one significant carbon target which must be met, which applies in 2050. The rest of it is interim planning. If we are being silly here, of which I am quite capable, and sticking to an interim target, we are taking a very short-term view.

4.15 pm

Lord Turner of Ecchinswell (CB): My Lords, I simply point out that the interim targets in the form of the actual budgets are legally binding commitments of the Government under the Climate Change Act. Once the budgets are set—three budgets in advance—they are not merely planning guidelines but are part of the Government’s legally binding commitments.

Lord Dixon-Smith: I am used to the Chancellor of the Exchequer making annual Budgets and I have been involved in politics indirectly and directly for a very long time. If the Chancellor of the Exchequer is forced to, shall we say, amend interim budgets, it seems to me that sticking our feet in the ground over an energy budget is not exactly wise.

Baroness Verma: My Lords, I am grateful to all noble Lords for their contribution to the debate. I hope that in my opening remarks I made it clear that the Government recognise the intention behind this amendment. Of course we share that intention, but I believe that the differences between us are very narrow, even though they are very important.

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It boils down to an assessment of risk. All sides in this debate can agree that we neither expect nor desire large amounts of unabated coal to be operating in the 2020s, but, as my noble friends Lord Forsyth and Lord Jenkin of Roding have rightly pointed out, we cannot be sure today exactly what will be required in those years. The Government’s position is that we should take a precautionary approach, given the serious potential for security of supply implications and the impact on consumer bills if we get it wrong. We should send a clear signal that unabated coal has only a limited future in helping us to transition to a lower carbon economy by creating an EPS that applies to any new coal plant. I appreciate the attempt of the noble Lord, Lord Oxburgh, to find an alternative, but no responsible Government could or should take risks that potentially put energy security in danger.

The noble Baroness, Lady Worthington, raised a point on the capacity market; our view is that capacity payments are likely to have only a marginal impact on the overall economics of coal plant and more important drivers on occasions where upgrading will relate to the overall state of an operator’s plant, an operator’s view of the market and the value that they place on retaining coal as a hedge. Even were they able to do so, this could mean that coal plants stay open longer, but they would operate at low-load factors and hence have low carbon emissions, given the evolution of the energy market with more low-carbon generation and carbon pricing. The noble Baroness could not give complete assurance that energy security would not be at risk. She could not say that prices would stay the same—her own party’s policy does not say that.

It is time that we looked at the elephant in the Chamber—the investors. After months of uncertainty, investors are looking at us in dismay. The most important thing we need to do is to provide certainty for investors by securing Royal Assent. The Confederation of British Industry has said that the Energy Bill has undergone significant scrutiny within Parliament as well as by industry and other stakeholders and it has the broad support of industry and investors in its current shape. It is important to the success of EMR that the Energy Bill receives Royal Assent in 2013, allowing investors to make those well needed decisions about investment.

Baroness Worthington: I thank the noble Baroness for giving way. Will she comment on my questions about Eggborough, as that is the very first test of whether this Bill is actually going to deliver? It was part of DECC’s announcement on projects that are going forward under the FID enabling scheme but I hear that next week they will receive a letter saying that they are not eligible for the first tranche because of a new system that the Government have introduced of rationing out the CFD contracts.

Baroness Verma: My Lords, the noble Baroness is of course aware that negotiations that are commercially sensitive cannot be discussed; I will not go further than that because these are sensitive issues and it would not be right of me to discuss individual plants, particularly on issues of commerciality.

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Baroness Worthington: I will just say that the Secretary of State was at Drax unveiling a new project that is being enabled under the CFDs. If it is that confidential, why was he there?

Baroness Verma: My Lords, I shall continue by trying to conclude quickly. The Bill has undergone thorough scrutiny and the Government have listened very carefully to all the concerns raised during its passage through this House. I am grateful to my noble friend Lord Teverson for his warm words. We have responded to a great many of the issues raised by colleagues from all sides of the House on, for example, domestic tariffs and access to markets, and we have introduced new topics—for example, carbon monoxide and smoke alarms.

We must acknowledge that the other place has accepted 112 amendments and, moreover, has welcomed them. It has recognised the expertise that this House has brought to the scrutiny of the Bill and the real improvements to it that this House has made. However, the other place has decided with a considerable majority that it does not agree with this amendment. The elected Chamber saw an unprecedented majority for the Bill as it completed its passage through the other place. Today, we can decide that the Bill proceeds to the statute book—a Bill that is essential for protecting consumers and for ensuring security of supply and decarbonisation of our economy. Nothing will send a firmer signal to investors than that this House will do nothing that prevents the Bill receiving Royal Assent.

Lord Oxburgh: My Lords, so much for my attempts to find an uncontroversial middle way of bringing all sides together. The temperature of this debate has been a little higher than I would have expected and, indeed, than I would have hoped. I agree with a great deal that the Minister has said on both security of supply and the Bill’s importance for investors. However, the fact is that the amendment increases, rather than reduces, both those things. If Members with a keen sense of smell have detected a faint aroma in the Chamber, it is the aroma of red herrings.

The Minister spoke of concerns about certainty for investors if my amendment is agreed, and the noble Lord, Lord Forsyth, said the same thing. He is quite right: we do not really know what is going to happen in 10 years’ time, but the Bill contains a measure that allows the Government to disregard these constraints if severe circumstances mean that it is necessary to do so. Therefore, that question of security of supply does not really exist.

As far as looking at certainty for investors is concerned, in the near term the necessity is for investment in gas-fired power stations. Everyone agrees with that. This amendment would improve, not reduce, certainty for investors in the time that we can look forward to. I do not know anyone who does not think that we need new gas-fired power stations, and the amendment would help investment in that regard.

The noble Lord, Lord Jenkin, rightly said that we have to get on with it. I am going to press this matter to a vote. I do not think that it need delay the passage of the Bill for more than a few days. As far as investors

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are concerned, getting the right Bill before Christmas, which the Government can certainly do if they are so minded, will be the main thing. The fact that that happens a day or two later is neither here nor there, and there will be a much more certain basis for investing in new gas.

4.24 pm

Division on Motion A2

Contents 215; Not-Contents 262.

Motion A2 (as an amendment to Motion A) disagreed.

Division No.  1

CONTENTS

Adams of Craigielea, B.

Ahmed, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Best, L.

Bhattacharyya, L.

Boothroyd, B.

Borrie, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Butler-Sloss, B.

Cameron of Dillington, L.

Campbell-Savours, L.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Coussins, B.

Crawley, B.

Davidson of Glen Clova, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Donaghy, B.

Drayson, L.

Dubs, L.

Eames, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Ford, B.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasgow, E.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hattersley, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hilton of Eggardon, B.

Hollick, L.

Hope of Craighead, L.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones of Moulsecoomb, B.

Jones, L.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Krebs, L.

11 Dec 2013 : Column 796

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Lipsey, L.

Lister of Burtersett, B.

Lloyd of Berwick, L.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Martin of Springburn, L.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Montgomery of Alamein, V.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Murphy, B.

Neuberger, B.

Noon, L.

Nye, B.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Oxburgh, L. [Teller]

Palmer, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patel, L. [Teller]

Pitkeathley, B.

Plant of Highfield, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Renton of Mount Harry, L.

Richard, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Smith of Leigh, L.

Snape, L.

Soley, L.

Stern, B.

Sugar, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Teverson, L.

Thornton, B.

Tonge, B.

Touhig, L.

Trees, L.

Triesman, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Turner of Ecchinswell, L.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitty, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Wilson of Tillyorn, L.

Winston, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Worthington, B.

Wright of Richmond, L.

Young of Hornsey, B.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bamford, L.

Barker, B.

Bates, L.

Bell, L.

Benjamin, B.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Burnett, L.

Buscombe, B.

Caithness, E.

Carrington of Fulham, L.

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Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chester, Bp.

Chidgey, L.

Clement-Jones, L.

Cobbold, L.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craig of Radley, L.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deech, B.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Donoughue, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Feldman of Elstree, L.

Fellowes, L.

Fink, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glenarthur, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Greenway, L.

Grender, B.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Hooper, B.

Horam, L.

Howard of Rising, L.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

James of Holland Park, B.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

Kilclooney, L.

Kirkham, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

Macdonald of River Glaven, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mancroft, L.

Manzoor, B.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marlesford, L.

Mawson, L.

Mayhew of Twysden, L.

Miller of Hendon, B.

Montagu of Beaulieu, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo of Southwark, L.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Rana, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

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Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Rotherwick, L.

Rowe-Beddoe, L.

St John of Bletso, L.

Sanderson of Bowden, L.

Sassoon, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharp of Guildford, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Slim, V.

Smith of Clifton, L.

Soulsby of Swaffham Prior, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stewartby, L.

Stoddart of Swindon, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Sutherland of Houndwood, L.

Suttie, B.

Swinfen, L.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Trumpington, B.

Tugendhat, L.

Turnbull, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verjee, L.

Verma, B.

Vinson, L.

Wakeham, L.

Wallace of Tankerness, L.

Walmsley, B.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Williams of Trafford, B.

Willis of Knaresborough, L.

Young of Graffham, L.

Younger of Leckie, V.

Motion A agreed.

Anti-social Behaviour, Crime and Policing Bill

Committee (7th Day)

4.40 pm

Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.

Schedule 7: Powers to seize invalid passports etc

Amendment 56YG

Moved by Baroness Hamwee

56YG: Schedule 7, page 169, line 38, leave out paragraph (b)

Baroness Hamwee (LD): My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.

Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,

“to carry out on the constable’s behalf a search under this paragraph”.

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That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.

My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.

Lord Ahmad of Wimbledon (Con): I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.

Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.

Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.

However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a

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fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.

It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.

Baroness Hamwee: My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.

As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.

Lord Ahmad of Wimbledon: I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.

Baroness Hamwee: Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.

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Amendment 56YG withdrawn.

Amendment 56YH not moved.

Schedule 7 agreed.

Clause 132 agreed.

Amendment 56YJ

Moved by Baroness Hamwee

56YJ: After Clause 132, insert the following new Clause—

“Report by Secretary of State

The Secretary of State shall, no later than three months after the coming into force of section 132, report to Parliament his or her recommendations—

(a) for the introduction of safeguards in respect of legally privileged material, excluded material and special procedures material in respect of a person detained under Schedule 7 or 8 to the Terrorism Act 2000, and

(b) for the introduction of a statutory bar to the introduction in a criminal trial of admissions made by a person detained under Schedule 7 or 8 to the Terrorism Act 2000.”

Baroness Hamwee: My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.

My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.

I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:

“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.

There are comments about,

“More tactful or less intimidating examinations”.

The report says of the community engagement events which the Government undertook that,

“The conduct of examinations was raised repeatedly”.

The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,

“there should be no power to detain and question for more than 1 hour”,

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on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.

The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,

“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,

was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.

I was also interested to see the advice to examining officers following the recent case about,

“the right to consult a solicitor in private, in person and at any time during the period of detention”.

I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.

Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.

My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.

Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.

Baroness Kennedy of The Shaws (Lab): My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.

Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to

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co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.

Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.

5 pm

Black and minority ethnic groups make up the majority of those subject to the stops—some 56%—even though they account for approximately 14% of the national population. Asians accounted for 27% of Schedule 7 stops but are only 7.5% of the national population. Blacks accounted for 8% of stops but they are only 3.3% of the population. People from mixed backgrounds accounted for 3% of stops but are only 2.2% of the population. People from other ethnic groups, including Chinese and other, accounted for 18% of stops, although they are only 1% of the population.

The targeting of black and minority ethnic groups continues to be even more marked when we consider the most intensive Schedule 7 stops. It appears that shorter stops are made, basically, of white people. The people who are detained for any length of time almost invariably are from ethnic minority groups. Of those stops that lasted for more than an hour, 36% were of Asians, 14% were of blacks, 3% were of people from mixed backgrounds and 24% were of people from other backgrounds. Fewer than 12% of stops that lasted more than an hour were of white people. Therefore, when a police officer says, as the noble Baroness, Lady Hamwee, mentioned, that this is interfering with the fostering of good relations, we can understand why.

Politicians in this House and in the other place have raised concerns, as have civic groups and the Equality and Human Rights Commission. Indeed, the United Nations Human Rights Committee has expressed grave concerns over the use of counterterrorism measures in this country and was particularly concerned over what it judged to be religious and ethnic profiling in the use of these powers. It should concern us as a House that this is the perception.

David Anderson QC—the terrorism watchdog if you like—said:

“I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind”.

He is basically saying that when the police make stops that go on to lead to further investigation it is invariably because there has been a reasonable suspicion. Yet,

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reasonable suspicion is not what is required. The police can stop people without any reasonable suspicion at all. Despite this, official statistics on the use of this power illustrate that it has not been used in an intelligence-led approach and that people from ethnic minority backgrounds are more likely to be subjected to the more extreme aspects of the power, particularly people from Asian backgrounds. That is the basis on which I bring these amendments to this legislation.

I know, as the noble Baroness, Lady Hamwee, said, that a number of groups are calling for a reduction of the maximum period of detention to one hour. However, I am not taking it down as low as that. In my amendments I am suggesting that going down to six hours, as the Government have promoted in this Bill, is an advance and to be welcomed, but it should be much lower than that. I am suggesting that we should take the moderate course and reduce it to three hours, at which point the person should either be released or arrested. It is worth noting that 97.2% of examinations take less than an hour, so if we give the police, or those who are involved in exercising these powers, the additional couple of hours that I suggest in my amendments, we will give the authorities as much practical power as they need.

I turn to the issue of the power to take non-intimate biometric data, including DNA and fingerprints. I suggest that that should be repealed in the light of the huge concern about its impact. The Government have already said that they will repeal intimate samples being taken, but I am asking that that be extended to non-intimate samples.

Most of the community, legal, academic and equality groups are calling for a much greater awareness among officers of the way in which special powers should be used and that there should be better training. Advice and assistance should be provided to people who miss their flights, and so on. The kernel of the amendments is that the minimum threshold of suspicion should be reasonable suspicion. It should be on that basis that any individual is stopped. Otherwise, it is impossible to have any independent scrutiny of the exercise of those intrusive powers. We cannot test the use of the powers if someone says, “It was my sense of smell. It was my policeman’s nose that told me that I should stop this person”. That is not good enough.

The independent reviewer suggested that there might be some test of subjective suspicion, but that cannot be a test that could be scrutinised in any acceptable or sensible way. The PACE code, which governs other stop powers, should be extended to cover stop and searches conducted under Schedule 7, and Schedule 7 stops should be monitored under the same framework as all the stop and search powers that we currently have, and data should be shared with community and monitoring groups.

That is the basis on which I have put forward my amendments, and I look forward to hearing the Minister’s response to those recommendations to the House.

Lord Avebury (LD): My name is attached to the amendments in this group in the name of my noble friend Lord Lester, who, as my noble friend Lady Hamwee has already said, is unfortunately indisposed and unable to be present for this debate.

11 Dec 2013 : Column 805

Let me say at once that I agree with all the amendments proposed by the noble Baroness, Lady Kennedy, as well as those in our name. She made a convincing argument, particularly on the ineffectiveness of the legislation. In spite of the vast number of stops and searches that have taken place, we have not had a single conviction. This is not a device for catching terrorists or even being able to question them—the noble Baroness added that none of them had even been charged. This matter has caused enormous concern to the Joint Committee on Human Rights and to the Equality and Human Rights Commission, with which we have an opportunity to discuss the amendments. It is as worried as we are that Schedule 7 to the Terrorism Act could violate human rights and equality laws and cause immense damage to community relations because of its widespread negative impact, particularly on our Muslim population. The EHRC made submissions to the Home Office consultation on Schedule 7 powers, and again, in 2013, it made a further submission to the Joint Committee on Human Rights in relation to its scrutiny of the Bill. It seems to me that the EHRC has been ignored.

We recognise the importance of stop and search powers as a tool for crime detection and prevention, and we acknowledge that Schedule 7 forms part of the UK’s counterterrorism strategy, which is aimed at protecting people in ports and airports and on the chief modes of transport which have been targeted by terrorists in the past. It could also prevent terrorists from entering UK territory.

However, we believe—with others—that the legal form and practical exercise of these powers should comply with equality and human rights legislation. The powers have to be used appropriately, proportionately and in a non-discriminatory manner. In its report, The Impact of Counter-terrorismMeasures on Muslim Communities, the EHRC notedthat Schedule 7 is eroding Muslim trust and confidence in policing and called for greater transparency and accountability around its use. Following the consultation already mentioned, Clause 132 and Schedule 8 to the Bill propose certain changes to the provisions in Schedule 7 to the Terrorism Act 2000 for stopping, examining and detaining people at ports. However, I agree with the EHRC that to do this without the need for reasonable suspicion or other limitations is far too broad, lacks efficient safeguards, and could be a breach of the requirement that such an interference should be prescribed by, and in accordance with, the law pursuant to Articles 5 and 8 of the European Convention on Human Rights.

This point has also been made by the Joint Committee on Human Rights and several of the amendments in this group are based on its recommendations. This is especially the case when an individual is questioned about his political and religious beliefs and activities, as well as those of others in his community and family. The Islamic Human Rights Commission says it has received dozens of complaints of inappropriate questioning, such as officers asking Muslims whether they pray, whether they would be willing to spy on their communities and which party they voted for at the last election. The commission concludes that,

“Schedule 7 has done more to alienate people than address the issue of national security.”

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I will give two examples from my own experience. First, a British Shia imam, returning to the UK through Heathrow terminal 1, was detained, interrogated at length and had his fingerprints and DNA taken. I was told the samples would be retained indefinitely, for comparison with samples taken at the scene of terrorist offences. I wrote to Jacqui Smith, then Secretary of State for the Home Office, on 5 December 2008, asking for the samples to be destroyed, in the light of the case of S and Marper at the European Court of Human Rights. I finally got the samples destroyed and the imam’s name expunged from the database on 25 January 2010 after 13 months of correspondence and telephone calls with Ministers and their offices and various branches of the police, including SO15, or Counter Terrorism Command.

In a second case, which is still ongoing, a friend of mine, who is a Bahraini national, has been stopped several times at Heathrow and King’s Cross and his complaint was taken over by the IPCC, which issued proceedings against the Metropolitan Police on 10 October 2013 because it would not investigate the basis for the stops. It was expected that some months could elapse before the case was heard in the High Court, and I would be grateful if my noble friend could give me an update on that. As I said to the security Minister, James Brokenshire, it is clearly unacceptable that our police should be harassing and intimidating Bahraini refugees here, including British citizens, when they are entitled to protection from the regime that persecuted them. Instead, it is clear that our police are acting as agents of the al-Khalifa oppressors. It is odious that peaceful opponents of any state which violates human rights should continue to be persecuted after they seek asylum here. It is not simply an operational matter for the police, but one that touches on our obligations under the refugee convention. As I also said to Mr Brokenshire, I do not believe the police would have acted in this disgraceful way unless they had been told from on high that this is how they were expected to behave.

More widely, the EHRC’s statistical analysis of examinations and detentions under Schedule 7 suggests that disproportionately high numbers of black and Asian passengers are being stopped and the disproportion increases further with over-the-hour examinations and still further with detentions. The code of practice on Schedule 7 prohibits reliance on ethnicity as the sole reason for examining a person, so the EHRC suggests that an investigation be undertaken to see whether that is the practice. However, statistics alone cannot prove that a power is being used in a discriminatory manner; a more comprehensive study is needed to see whether the conduct of the police under Schedule 7 breaches the Equality Act. I hope that my noble friend will say that in light of the experience, such an inquiry will be undertaken.

5.15 pm

To look at the amendments for a few minutes, Amendment 57 would ensure that Schedule 7 powers cannot be used inappropriately where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the statutory purpose of the power, which is solely for the examining officer to determine whether the person appears to be,

“concerned in the commission, preparation or instigation of acts of terrorism”.

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Amendment 57 provides that there is adequate ongoing monitoring and analysis of the use of the power, and that no individual can be forced to answer questions under the threat of criminal sanction unless they are arrested as a suspected terrorist who is or has been “concerned in ... terrorism”.

We are advised that statements made by individuals during Schedule 7 stops cannot lawfully be relied upon in control order or terrorism prevention and investigation measures proceedings, nor in asset-freezing proceedings, because that is not the statutory purpose of Schedule 7. That needs to be made clear. This amendment adds safeguards by ensuring that Schedule 7 powers should not be used where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the scope of the statutory purpose of Schedule 7.

Amendments 57A, 61A and 61B, in the name of my noble friend Lord Lester, concern the accessing, searching, examining, copying and retention of data on personal electronic devices. The JCHR said in paragraph 122 of its fourth report that these powers in Schedule 7 were,

“so wide as not to be ‘in accordance with the law’”.

It welcomed the express reference to necessity and proportionality in the working draft of the revised code of practice but does not consider that the code is sufficient to circumscribe the width of the powers. The Joint Committee said that the powers should only be exercisable on reasonable suspicion; these amendments give effect to its recommendations.

Amendment 58 provides that the power to detain and question for more than an hour can be exercised only if the examining officer has by that point formed a reasonable suspicion that the person being questioned is or has been “concerned in … terrorism”. This is another of the amendments recommended by the JCHR. I hope that your Lordships would agree with the distinction that it draws between, on the one hand, the powers which can be exercised without reasonable suspicion—such as the power to stop, question and request documentation, and physically search persons and property—and, on the other, the more intrusive powers such as detention, strip-searching, searching contents of personal electronic devices, the taking of biometric samples and the seizure and retention of property, including personal information on electronic devices, which should be exercisable only if the examining officer reasonably suspects that the person is or has been “concerned in … terrorism”. This amendment gives effect to the JCHR proposal for a reasonable suspicion requirement before the more intrusive powers under Schedule 7 are exercisable, and to its suggestion that the threshold for these powers should be the point at which the person being examined is formally detained, after one hour of questioning.

As to Amendments 59, 60 and 61, paragraph 2 of Schedule 8 removes the current nine-hour maximum time for questioning under Schedule 7. Paragraph 2(3) proposes new paragraph 6A that provides that a person may be questioned for up to one hour under paragraphs 2 and 3 of Schedule 7. If the examining officer wants to question the person for more than one hour, then the person will have to be detained under new paragraph 6 of Schedule 7, which triggers the safeguards contained

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in Schedule 8 to the Terrorism Act 2000. As the noble Baroness, Lady Kennedy, pointed out, between 1 January 2009 and 31 March 2012, only 3% of examinations continued for more than one hour, and only one in 2,000 examinations lasted more than six hours. It is therefore correctly proposed in these amendments that the maximum length of detention under Schedule 7 should be reduced from six to three hours. That is appropriate.

On Amendment 62, paragraph 4 of Schedule 8 inserts new paragraph 11A in Schedule 7 to the 2000 Act enabling examining officers to copy anything which is given to them or is found during a search and to keep a copy of such material for as long as it is necessary for the purpose of determining whether the person is or has been “concerned in … terrorism”.

This is a very wide power, which could lead to sensitive personal data being retained for indefinite periods of time. Even with a reasonable suspicion that the information retained may prove that the person is “concerned in... terrorism”, this power has the clear potential to infringe the Article 8 rights of persons examined under Schedule 7, because of its highly intrusive and open-ended nature. In addition, even if further safeguards were implemented, such as limits on the length of time the data could be retained or prohibitions on sharing the data, there is still the potential for breaches of Article 8 to occur, resulting from the retention of the data. Therefore Amendment 62 correctly proposes that this provision should be removed entirely from the Bill.

I will not go through the remaining amendments because time is short, but your Lordships may wish to note the recent Administrative Court decision in the case of Elosta v The Commissioner of Police for the Metropolis, in which it was held that it is unlawful to restrict a person who has been detained at a port or airport under Schedule 7 to the Terrorism Act to being entitled to have legal advice from a solicitor on the telephone only prior to a police interview, rather than having the right to have a solicitor present in person during the questioning where the detainee has specifically asked for that greater form of protection. I am pleased to see that Amendment 63 would give effect to that provision.

Finally, Amendment 64 would prohibit the collection of non-intimate DNA samples without consent from people who have not been arrested or charged. Taking and retaining samples from a person who has not been arrested or charged, and who is not the subject of reasonable suspicion, has serious privacy implications and should not be allowed.

I hope that all these amendments will be acceptable to the Government.

Baroness Kennedy of The Shaws: My Lords, before the Minister rises, perhaps I may indicate, as I did not specifically mention it, that I, too, am urging that the threshold of reasonable suspicion should be the standard before downloading, retaining and copying material on electronic devices of any kind. Even if the Government do not accept the amendment on stopping—that there should be reasonable suspicion at that point—at the very least we should move on to reasonable suspicion before we start taking people’s devices and entering into private material and retaining it.

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Lord Faulks (Con): I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 of the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture, and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.

We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.

This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.

Baroness Smith of Basildon (Lab): My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.

We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.

I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to

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hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.

On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.

Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.

Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.

On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.

We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule

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and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.

This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.

5.30 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I thank the noble Baroness, Lady Smith, for the way in which she has contributed to the debate. All noble Lords have recognised the seriousness of this issue. I understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly sensitive area. My noble friends Lady Hamwee and Lord Avebury, the noble Baroness, Lady Kennedy, and my noble friend Lord Lester—I am sure we all wish him a speedy recovery in his absence—have all raised a number of issues through their amendments.

As has been pointed out, the independent reviewer of terrorism legislation, David Anderson QC, has recently made some recommendations for further reforms to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable friend Damian Green reported, are being considered by Ministers. We are grateful to the independent reviewer of terrorism legislation for his report.

I have to say that, as Mr Anderson has also observed, there is a limit to how far these matters can be considered before the conclusion of the judicial review proceedings in the case of David Miranda. That being the position, while I welcome the opportunity to air these important issues in debate now, I propose only to set out the Government’s preliminary view of the amendments before us today. Subject to the timing of a judgment in the Miranda case, I hope to give a more definitive view before the Bill moves on to Report—I will make sure that noble Lords are aware as soon as we are in that position.

As the noble Baroness, Lady Smith, invited me to do, I begin by touching on Amendments 56YJ and 56YK, which deal with some complex issues. The first of these is around safeguards for legally privileged and related material and the use of admissions in criminal proceedings. It is right that the Government are considering these matters and they are doing so now. There is no need for the Bill to require that consideration in future.

I would like to be clear that the current compulsion under Schedule 7 to the 2000 Act to answer questions means that admissions made in an examination would not normally be considered admissible in criminal proceedings. Both the High Court and the independent reviewer of terrorism legislation have suggested that a statutory bar be introduced to this effect, and this is something that we are examining carefully.

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It is right that the independent reviewer of terrorism legislation makes recommendations, but amendments 56YK and 100A seek to tie the hands of the Secretary of State by, in effect, requiring her to implement the recommendations of the independent reviewer. It is for the Government and Parliament to decide what legislative changes should flow from the independent reviewer’s recommendations. Given the importance of these issues, any such legislative proposals should be subject to full parliamentary scrutiny—as with the provisions in this Bill—rather than implemented through secondary legislation, as my noble friend has suggested in amendments 56YK and 100A.

Amendments 57 and 58 deal with fundamental principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these powers can be used. The legislation is already clear: they are for the purpose of determining whether a person appears to be someone who has been concerned in the commission, preparation or instigation of acts of terrorism.

The noble Baroness, Lady Kennedy, has expressed concern that the powers may be used in a discriminatory way. Accordingly, Amendment 57 also includes requirements on collecting data. Requiring examining officers to collect data on all protected characteristics from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It would also prolong the majority of examinations, of which 63% are completed within 15 minutes. There is a question as to how useful such data would be.

Direct comparison with the UK population is not really relevant here. A significant proportion of those who travel through ports are not UK residents. The use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain routes are given greater focus. Consequently, some ethnic groups may be more likely to be examined, but not because the powers are being used inappropriately. As the independent reviewer of terrorism legislation reported in his recent annual report:

“If the power is being properly exercised ... one would expect—

that those examined, in terms of breakdown, would

“correlate not to the ethnic breakdown of the travelling population, but rather to the ethnic breakdown of the

terrorist

population”.

He went on:

“Police are however entitled and indeed required to exercise their Schedule 7 power in a manner aligned to the terrorist threat. As in previous years, I have seen no evidence, either at ports or from the statistics, that Schedule 7 powers are exercised in a racially discriminatory manner”

That said, we are working with the police and the Equality and Human Rights Commission to find a balance between increasing transparency without increasing the bureaucratic burden. I would also like to reassure the noble Baroness that the statutory code of practice for examining officers makes clear that someone cannot be examined based solely on their ethnicity or their religion.

The final element of Amendment 57 would remove the compulsion on individuals examined at ports and airports to provide information. This would fundamentally undermine the whole purpose of the legislation. Schedule 7 examinations have led to individuals being convicted

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for terrorist-related offences and have produced information which has contributed to long and complex intelligence-based counterterrorist investigations and the disruption of terrorist activity. If someone could simply refuse to answer questions, the utility of the provision would be fundamentally brought into question.

Amendment 58 seeks to introduce a reasonable suspicion test to be met before an examining officer may detain a person under Schedule 7. Again, this would undermine the capability of the police to identify individuals who are involved in terrorism as they passed through our ports and borders. Examinations are not simply about the police talking to people who they know or already suspect are involved in terrorism. They are also about talking to people travelling to and from places where terrorist activity is taking place or emerging to determine whether those individuals appear to be involved in terrorism, whether that is because they are or have been involved, are going to become involved or are at risk of becoming involved either knowingly or unknowingly.

For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been able to explain that the Joint Committee on Human Rights has supported this position. However, the independent reviewer of terrorism legislation has recently recommended that detention be permitted and continue on periodic review only when an officer is satisfied that there are grounds for suspecting that the person appears to be a person concerned with terrorism. We are reflecting on this recommendation ahead of Report.

Amendments 59, 60 and 61 would further reduce the maximum period of detention. The police need time to carry out checks and questioning. The person may have a lot to say, detailed or complex questioning may be required, inconsistencies in the person’s account or documentation may need to be understood, or time may be needed to allow the person to consult privately with a legal adviser or to allow for interpretation. We are already reducing the maximum period by a third but there is a balance to be struck, and for that reason I do not believe that it should be reduced further.

Amendments 57A, 61A, 61B and 62 seek to restrict examining officers’ powers in respect of the property of people who are examined. The power to search for and examine property, including on personal electronic devices, is an essential part of the Schedule 7 powers. As the independent reviewer of terrorism legislation has observed,

“it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable”.

New paragraph 11A of Schedule 7 to the 2000 Act, by clarifying the law, meets a requirement of the European Convention on Human Rights that interference with convention rights be in accordance with law that is adequately accessible and foreseeable. Amendment 62 would take away that clarification.

On Amendment 62A, noble Lords will understand that ports, airports and international rail terminals are quite different from police stations, and, as such, recording facilities are not always going to be available. If recording were mandatory, more individuals would

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be liable to being transported from the port to a police station where facilities are available, extending the duration of the examination. The questioning of any person detained for examination under Schedule 7 at a police station already falls under a code of practice for the video recording of interviews.

Amendments 63, 64 and 64ZA relate to areas where we are already introducing reforms through the Bill. While the Bill ensures that all persons detained under these powers will have a right to consult a lawyer and to have someone informed of their detention, Amendment 63 would extend those rights to everyone examined. As I have explained, some 63% of examinations last less than 15 minutes. More than 96% are concluded within an hour. Extending statutory rights to all those being examined, even briefly, would create an unnecessary burden and could well lead to longer examinations than are necessary. I would also like to remind noble Lords that the Bill already ensures that anyone examined for more than an hour must be formally detained, so there is no question of prolonged examination without these rights applying.

5.45 pm

Amendment 64 relates to biometrics. Biometrics play an important part in establishing the identity of those travelling through the ports and in assisting the determination of those involved in terrorism. Samples are taken from less than 1% of people examined under Schedule 7. However, a small but significant number of samples have provided links to counterterrorism investigations and identified individuals using alias details. It is therefore important to retain this power. However, perhaps I can reassure my noble friend Lord Avebury that DNA and biometric material obtained under a Schedule 7 examination must be destroyed in line with the Protection of Freedoms Act 2012. If the person has not been convicted of an offence, the sample cannot be retained indefinitely. We recognise the impact that taking a sample could have on a person’s privacy and we are taking steps to limit it. I would remind the noble Baroness that the Bill will repeal the current provision in Schedule 7 to obtain intimate samples.

Finally, Amendment 64ZA would build on one of the key changes we are making in the Bill: we are introducing a statutory review of detention. We recognise the importance of clear review periods as part of the new provisions. Our intention is to address this in the code of practice for the examining officer, and this is clearly set out in the draft code we have published. However, in the light of the debate today, the Government will reflect further on whether these periods should be set out in the statute itself.

This debate has been well worth while. It has given me an opportunity to explain how the Government are responding to the independent reviewer’s report and how the Bill is moving this issue forward. I hope that I have been able to give noble Lords some reassurance on the issues raised. As I said at the start of my remarks, we continue to consider these issues in the light of the recommendations in David Anderson’s recent evidence to the Home Affairs Select Committee. That evidence was submitted only on 20 November and noble Lords would expect us to take a little time to

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consider our response given the sensitivity and complexity of the issues. However, above all, we are awaiting the outcome of the judicial review in the David Miranda case. We want to reflect carefully on the points made in the debate today because they have been valuable.

On that basis, I hope that my noble friend will withdraw her amendment and that the noble Baroness, Lady Kennedy, will not press her amendments in the knowledge that we will come back to this issue at Report with clarification of the Government’s position in the light of the report and the judicial review.

Baroness Kennedy of The Shaws: My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.

Baroness Hamwee: My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.

A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.

Amendment 56YJ withdrawn.

Amendment 56YK not moved.

Schedule 8: Port and border controls

Amendments 57 to 64ZA not moved.

Schedule 8 agreed.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) (Lab): We come to Amendment 64A. I call the noble Lord, Lord Taylor of Holbeach. I am sorry; I call the noble Lord, Lord Ahmad of Wimbledon.

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Amendment 64A

Moved by Lord Ahmad of Wimbledon

64A: After Schedule 8, insert the following new Schedule—

SchedulePowers of community support officersIntroduction

1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers) is amended as follows.

Additional powers to issue fixed penalty notices

2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” there is substituted “listed in sub-paragraph (2B)”.

(2) In sub-paragraph (2) of that paragraph, after paragraph (ca) there is inserted—

“(cb) the power of an authorised officer of a borough council to give a notice under section 15 of the London Local Authorities Act 2004 in respect of an offence under section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 (unlicensed street trading);”.

(3) After sub-paragraph (2A) of that paragraph there is inserted—

“(2B) The offences referred to in sub-paragraph (2)(b) are—

(a) an offence under section 72 of the Highway Act 1835 (riding on a footway) committed by cycling;

(b) an offence under section 5(1) or 8(1) of the Road Traffic Regulation Act 1984 involving a contravention of a prohibition or restriction that relates to—

(i) stopping, waiting or parking at or near a school entrance,

(ii) one-way traffic on a road, or

(iii) lanes or routes for use only by cycles, only by buses or only by cycles and buses;

(c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle);

(d) an offence under section 35 of that Act (failing to comply with traffic directions) committed by the rider of a cycle;

(e) an offence under section 36 of that Act (failing to comply with traffic signs) committed by the rider of a cycle who fails to comply with the indication given by a red traffic light;

(f) an offence under section 42 of that Act of contravening or failing to comply with a construction or use requirement about—

(i) lighting equipment or reflectors for cycles,

(ii) the use on a road of a motor vehicle in a way that causes excessive noise,

(iii) stopping the action of a stationary vehicle’s machinery,

(iv) the use of a vehicle’s horn on a road while the vehicle is stationary or on a restricted road at night, or

(v) opening a vehicle’s door on a road so as to injure or endanger a person;

(g) an offence under section 163 of that Act (failing to stop vehicle or cycle when required to do so by constable or traffic officer).

(4) After sub-paragraph (4) of that paragraph there is inserted—

“(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that Act).”

Powers to issue fixed penalty notices: consultation with local authorities

3 In paragraph 1, after sub-paragraph (2B) (inserted by paragraph 2(3) above) there is inserted—

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“(2C) Before a chief officer of police makes a designation applying this paragraph to any person and specifying or describing an offence listed in sub-paragraph (2B)(b)(i), the officer shall consult every local authority any part of whose area lies within the officer’s police area.

(2D) In paragraph (2C) “local authority” means—

(a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and

(b) in relation to Wales, a county council or a county borough council.”

General power of seizure

4 After paragraph 2A there is inserted—

“General power of seizure

2B Where a designation applies this paragraph to any person—

(a) that person shall, when lawfully on any premises in the relevant police area, have the same powers as a constable under section 19 of the 1984 Act (general powers of seizure) to seize things;

(b) that person shall also have the powers of a constable to impose a requirement by virtue of subsection (4) of that section in relation to information accessible from such premises;

(c) subsection (6) of that section (protection for legally privileged material from seizure) shall have effect in relation to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure of anything by a constable;

(d) section 21(1) and (2) of that Act (provision of record of seizure) shall have effect in relation to the seizure of anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the references to a constable and to an officer included references to that person; and

(e) sections 21(3) to (8) and 22 of that Act (access, copying and retention) shall have effect in relation to anything seized by that person in exercise of that power or taken away by him following the imposition of a requirement by virtue of sub-paragraph (b)—

(i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by section 19(2) or (3) of that Act or taken away by a constable following the imposition of a requirement by virtue of section 19(4) of that Act; and

(ii) as if the references to a constable in subsections (3), (4) and (5) of section 21 included references to a person to whom this paragraph applies.”

Powers with regard to charity collectors

5 After paragraph 3A there is inserted—

“Power to require name and address etc: charity collectors

3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a constable—

(a) under section 6 of the House to House Collections Act 1939 to require a person to give his name and address and to sign his name; and

(b) under regulations under section 4 of that Act to require a person to produce his certificate of authority.”

Power to stop cycles

6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.”

Lord Ahmad of Wimbledon: One of the memorable parts of the Bill’s passage has been my attempts to be my noble friend Lord Taylor—which I have succeeded in doing on a number of occasions now.

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We have made significant reforms to policing to enable the police to respond to the individual concerns of their communities and to give local communities direct access to engage with and challenge their local force. Community-focused policing is key to improving satisfaction rates and public perceptions of police legitimacy, as well as to reducing the fear of crime and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method of policing. Taking time to engage and really get to know their communities, the problems they face and their priorities is central to building these strong links and helps to shape an effective police response.

When the Bill was considered in the other place, my honourable friend Steve Barclay, the Member for North East Cambridgeshire, highlighted inconsistencies in police community support officers’ powers. We have already taken steps to remedy the specific issue he raised by adding Clause 135 to the Bill, but we want to go further to support the important role that PCSOs play. We want to ensure that they have the necessary tools to keep the public safe and tackle the issues that really matter to the communities they serve. We believe that 18 new discretionary powers introduced by these amendments will do just that. These provisions will give chief constables greater discretion and flexibility in how they deploy police community support officers to tackle low-level crime and anti-social behaviour.

I turn first to new cycle powers. Failing to comply with road regulations can expose both cyclists and their fellow road users to danger, including pedestrians, as we sometimes see. That is why we want to do more to ensure that road safety regulations are well understood and adhered to. In addition to giving police community support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will give them power to issue a fixed penalty notice for cycling through a red light, failing to comply with a traffic direction and carrying a passenger on a cycle. We believe that giving police community support officers a more comprehensive package of cycle-related powers will put them in a better position to drive improvements in cycle safety.

I turn to new traffic powers. We are introducing a new package of measures to give police community support officers additional powers to issue fixed penalty notices. These include for failing to stop for a police constable, driving the wrong way down a one-way street, sounding a horn at night, sounding a horn when stationary, not stopping the engine when stationary, causing unnecessary noise, contravening a bus lane and opening a door so as to cause injury or danger. Paddy Tipping, the police and crime commissioner for Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that they should be given the power to issue notices for more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to provide a means to pick on drivers or cyclists, or to raise revenue. Our focus is improving safety for all road users and to do that we must ensure that road regulations are respected and enforced.

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A third area we are covering is parking outside schools. The power to tackle dangerous parking outside schools is an issue that has been raised in previous debates and it is something we wish to address. We know that patrolling outside schools is a core function for many PCSOs and this makes them well placed to use their engagement and problem-solving skills to educate drivers about the risks of dangerous parking. However, we recognise that, on occasions, stronger action is needed and to address this issue we are giving them the power to issue fixed penalty notices to individuals who park in restricted areas outside schools. Local authorities currently play a core role in parking enforcement and we know that a collaborative approach to tackle these types of offences is essential. We believe that chief constables should consider the role a local authority plays before making any decision to designate this power and we have therefore imposed a duty to consult within this provision.

Illegal street vendors and house-to-house collectors is another area of concern. In addition to the measures I have outlined, the amendments aim to support the role PCSOs play in promoting crime prevention and tackling anti-social behaviour issues. Illegal street vendors and bogus house-to-house collectors can cause a nuisance to communities and have a detrimental impact on those working legitimately. Tackling this type of behaviour is important. We recognise that illegal street vendors may be more common within highly populated cities and that is why we are giving PCSOs in London the power to issue a fixed penalty notice to illegal street vendors. This is in line with existing local authority powers. Giving PCSOs the power to confirm the identity of house-to-house collectors will support their role in providing community reassurance and tackling nuisance behaviour.

Finally, we will be aligning the powers of PCSOs to seize and retain material during premises searches with those of police officers. PCSOs already play an important role in supporting police officers to execute search warrants but their authority to seize material is limited. Granting PCSOs this power will free up police time by enabling PCSOs to operate more independently of police officers when carrying out this function.

We know that the public value the presence of PCSOs within the community and we have been clear that engagement is at the heart of their role. This should continue to be their core function. We believe that a distinction between the role of a constable and a PCSO should remain and that is why we have taken time to fully consider the implications of conferring the powers contained within this proposal. We are confident that they will enhance, not dilute the community engagement role of PCSOs and I commend the amendments to the Committee. I beg to move.

6 pm