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House of Lords

Wednesday, 5 November 2014.

3 pm

Prayers—read by the Lord Bishop of Norwich.

Work Capability Assessment


3.07 pm

Asked by Lord McAvoy

To ask Her Majesty’s Government how many people were awaiting a Work Capability Assessment on the latest date for which figures are available.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): As of 30 September 2014, there were around 580,000 cases awaiting work capability assessments at Atos Healthcare, down from 616,000 at the end of August. These figures do not include cases where the claimant has yet to return the claimant questionnaire.

Lord McAvoy (Lab): My Lords, will the Minister confirm the number of disabled people who are waiting for their first work capability assessment? The figures show that the suffering of hundreds of thousands of disabled people is being increased on a daily basis by a Government who are failing in their duty of care. The Minister is quite keen to say how he is clearing up this mess. Does he not also owe an apology to the people affected?

Lord Freud: The service that we provided is not where we want it to be—we have been clear about that. We are pulling down the backlog; it is down by 20% since February. We announced in March that Atos would be leaving the contract, and we were able to announce last week that Maximus Health and Human Services is taking it up from that date.

Lord German (LD): My Lords, we now have a new supplier of these work capability assessments. Most of the staff are being transferred using the transfer of undertakings. May I and the House be reassured that the transfer of undertakings will not include a transfer of working practices? In particular, perhaps my noble friend can tell us whether he agrees with the recommendation from the Government’s own assessor of this policy, Dr Litchfield, that less emphasis should be placed on the number of points attained in the test and that the calculation should be used,

“simply to determine whether the threshold for benefit has been reached”.

Surely that is a much fairer way of doing these assessments. Does the Minister agree?

Lord Freud: We are not changing the actual assessments, but we are improving the quality of those assessments; expanding the number of medical professionals, particularly in mental health; understanding how fluctuating conditions work, and so on.

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Lord Alton of Liverpool (CB): My Lords, in his reply to the noble Lord, Lord McAvoy, the Minister said that the new contract between Maximus and the DWP had now been signed. In view of the phenomenal sums of public money which are involved in this, can the Minister tell us when that contract will be placed in the public domain, whether it will be possible properly to scrutinise it and whether it will be possible for the public to see the operating systems and all the other issues involved, in contrast to way in which the Atos Healthcare contract was administered?

Lord Freud: Details of the new contract will be published on Contracts Finder by the end of November.

Baroness Uddin (Non-Afl): My Lords, only recently, almost half of work capability assessment appeals were successful. New leaked papers tell us that even where eligibility is conceded and faulty work capability assessment decisions are reversed, employment and support allowance is providing less support to disabled people. Can the Minister rule out an announcement of new cuts to ESA in this Parliament?

Lord Freud: If the noble Baroness is referring to a newspaper story about 50p, I can assure her that that is not government policy.

Earl Attlee (Con): My Lords, what progress is being made in getting more disabled people working, which is so important for their self-esteem?

Lord Freud: We have seen 116,000 disabled people return to the workforce this year. That is a 4% increase and is faster than the 2.6% rate of increase which is the average.

The Lord Bishop of St Albans: My Lords, great concern has been expressed by some people about how work capability assessments are being carried out and whether those undertaking them have the right skills and expertise. Indeed, in one anecdotal case, the health professional who undertook a complex mental health assessment was a physiotherapist. If that is the case, surely it cannot be right. What are Her Majesty’s Government doing to ensure that those undertaking the assessments have the right skills and experience to be able to do them properly?

Lord Freud: The important thing about doing these assessments is that someone assesses correctly in terms of capability of performing functions and capability of working; that is, what people are able to do. As I said earlier, we have more specialist professional support going into the system to make sure that those assessments are done accurately.

The Countess of Mar (CB): My Lords, is there any foundation to the report in the Independent last week that some 6,000 people with diseases such as Parkinson’s, multiple sclerosis and severe CFS/ME have been put into the work-related activity group? If that is the case,

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how many of those people have been got into work? What is the point of putting them in the WRAG if they are not going to get better?

Lord Freud: Clearly, I am not able to respond on specific people going into specific places. The whole point of the assessments is to focus on functional capability or needs at the point of assessment.

Baroness Hollis of Heigham (Lab): My Lords, 40% of people appeal against their assessment, some of them terminally ill. The DWP has added an extra stage to the appeals process, mandatory reconsideration by the department, but—and this is key—there is no time limit for staff to meet. Tiny numbers of appeals are being processed; the rest are being seriously delayed by six months or more. What is the Minister doing to speed up those appeals?

Lord Freud: The noble Baroness is quite right that the rate of appeals has fallen very steeply, by 92% in the latest quarter compared with a year earlier. It is too early to tell the definitive reasons for that. It may well be due to many of the changes that have gone through—75 recommendations have gone through—or to mandatory reconsideration so that we look at it early. However, when you look at the backlog of mandatory reconsiderations, you see that the pure numbers do not seem to be a huge influencing factor in this fall in appeals.

Baroness Manzoor (LD): My Lords, looking at the number of people who will be moved across under TUPE, can the Minister say what percentage of new staff will be introduced to ensure that we have a faster and more effective service?

Lord Freud: All the providers within Atos were retested in 2013, so those will transfer. Maximus will bounce up the numbers—the precise numbers are not available yet—to do this particular contract.

Ticket Touting


3.15 pm

Asked by Lord Moynihan

To ask Her Majesty’s Government what assessment they have made of the level of criminal activity related to ticket touting in the United Kingdom.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con): My Lords, ticket touting is a criminal offence when tickets are sold for a designated football match. This is set out in the Criminal Justice and Public Order Act 1994. Arrests for ticket touting are recorded per season. There were 104 such arrests during the 2013-2014 season. Prosecutions are recorded annually, and there were 40 prosecutions in 2013. Your Lordships will be glad to know that 35 of those prosecuted were found guilty and sentenced.

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Lord Moynihan (Con): Will my noble friend confirm the figures from the DCMS following the Olympic Games that there were around 1,000 known professional groups involved in ticket crime? Does she also accept last year’s National Fraud Authority report, which estimated that 2.3 million people fall victim each year to online ticket fraud, resulting in losses of £1.5 billion? Will the Government consider, as a matter of some urgency, providing greater protection for theatre and concert-goers and sports fans?

Baroness Neville-Rolfe: My Lords, the Olympics and Paralympics were a fantastic achievement. It took an enormous enforcement effort to police the resale of tickets at that event, which we cannot do for every event. Since my appointment, I have taken a great deal of interest in this issue. I have had meetings with event organisers, including the Rugby Football Union, the England and Wales Cricket Board and UK Music, with online marketplaces and with consumer groups, to hear how the market is working. At present, we have broadly the right balance between consumer protection, with a number of regulations and allowing the market to operate, but I am considering new evidence as it becomes available.

Lord Clement-Jones (LD): My Lords, my noble friend mentioned the Olympics. Will she take the opportunity of commending the report from Operation Podium of the Metropolitan Police, which so valuably made a number of recommendations about ticket fraud and abuse? Does she agree with its conclusion that self-regulation is unlikely to be successful, given the current lack of transparency, and unscrupulous practices by some? Is the Consumer Rights Bill not the ideal vehicle for reform in this area?

Baroness Neville-Rolfe: My Lords, Parliament has debated this issue for more than 10 hours on the Consumer Rights Bill alone, and we have legislated and produced guidance. New regulations came into force this year in June, which ensure that consumers get the information they need. We have included specific guidance on how the regulations apply to tickets. In terms of the police, consumers are protected by the Fraud Act. Action Fraud is now the single national reporting centre for fraud, and since 1 April, responsibility for that has moved to the City of London Police. They are making good progress.

Lord Hughes of Woodside (Lab): My Lords, does the Minister accept the figures given by the noble Lord, Lord Moynihan?

Baroness Neville-Rolfe: My Lords, my noble friend Lord Moynihan brings a great deal of expertise to our discussions. It has been very helpful during the discussions on the Consumer Rights Bill to have his knowledge of this subject. There is an issue, but there are also things being done by the Government to tackle what is wrong and make sure that this is a good market for consumers, and that fraud is not allowed to flourish.

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Lord Mawhinney (Con): My Lords, if I understood my noble friend’s original Answer correctly, she told your Lordships that about one-third of those who were arrested for ticket touting at football matches were found guilty. Is that a percentage that my noble friend finds satisfactory?

Baroness Neville-Rolfe: My Lords, I should be careful about moving on to the turf of the criminal justice services. What I will say is that this was a narrow question about ticket touting, which is regulated under the Criminal Justice and Public Order Act, which was specifically set up to help with the terrible problems in football. I think that everyone feels that it has had some success. Clearly, our discussions have been wider, covering what we are doing for the consumers on the general question of ticket touting and how we can make sure that this is a good market, where people can buy tickets and be sure that they are not getting defrauded, while also ensuring that the consumer gets a good deal and can attend sport, the theatre and pop concerts. That is what we all want.

Lord Stevenson of Balmacara (Lab): My Lords, Operation Podium argues, and the Government need to accept, that ticket fraud is usually,

“committed by organised criminal networks … creating legitimate-looking websites, taking payment for event tickets and then failing to supply them.”

That is the fact, but what is perhaps not realised as often is that many people who suffer from that ticket fraud then discover they are also subject to a scam which means that their credit card details are used again and again, so they are doubly hit. What sort of balance does the Minister find in that?

Baroness Neville-Rolfe: The noble Lord is right to express concerns but I think the House needs to understand that we have brought in new regulations as recently as June, and we have been working with the online marketplaces so that consumers are protected. The four main resale sites now go way beyond what they used to do. They are refunding or replacing unusable tickets and working with the RFU and all the other sporting bodies to make sure that things are okay. I saw the RFU yesterday and was very impressed by the action it is taking for the 2015 Rugby World Cup in using anti-forgery designs and a ballot system. We have to make progress in the real world, where consumers want to get tickets and attend games and concerts.

Lord Foulkes of Cumnock (Lab): My Lords, will the Minister confirm that the statistics she gave in her original Answer were for England and Wales? What discussions is she having with her counterparts in Scotland—which thankfully is still part of the United Kingdom—about co-operation and exchanging experience?

Baroness Neville-Rolfe: My Lords, I have so far not had discussions with Scotland on the Bill but I am very willing to engage and to do so. I thank the noble Lord for raising that excellent point.

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Baroness Heyhoe Flint (Con): My Lords, perhaps I could ask my noble friend the Minister about secondary selling—that is the posh term for ticket touting, in case people were wondering. Touting nowadays is not carried out on street corners with somebody waving a wodge of tickets in front of you. It is a £1 billion global business. Does the Minister not agree that with this online business, which is taking money out of the game of sport itself, the Government should ensure that the voluntary guidance is being followed?

My noble friend asked for further information. Today, on one of the well known online ticket agency sites, there are 400 tickets listed for the Ashes cricket test match in Cardiff next July. Among those 400, there is not one with any ticket detail. People within the governing bodies of sport and entertainment are looking for a kitemark of assurance that, in future, all ticket purchases will be transparent and responsible.

Baroness Neville-Rolfe: My noble friend shares my passion for this subject and for cricket. We are certainly looking at those sorts of details in the discussions that we have been having.

Unmanned Aerial Vehicles


3.24 pm

Asked by Lord Lee of Trafford

To ask Her Majesty’s Government what plans they have to encourage the development by British companies of unmanned aerial vehicles for civil and commercial purposes.

Lord Lee of Trafford (LD): I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a shareholding in Concurrent Technologies plc, 6% of whose turnover goes into electronics for unmanned vehicles.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con): We are focusing investment on regulation and technology that will put the UK supply chain in a good position to be successful in the global market for unmanned aircraft. For example, through Innovate UK, we are investing £10.3 million in developing technology and supporting UK business to research the safe integration of these aircraft into our airspace.

Lord Lee of Trafford: My Lords, the burgeoning technology of UAVs has a vast range of global applications in archaeology, agriculture, communications, exploration, firefighting, surveillance of pipelines and piracy, and indeed in many forms of delivery systems. It may even be possible to develop a delivery system for Focus leaflets, which I should have thought would be very much appreciated by these Benches. Paul Cremin, the head of aviation safety at the Department for Transport, said recently:

“I hear of a new one—

civilian application—

“almost every day”.

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He said that it will lead to a revolution in the way we shop, observe and are observed. Is my noble friend satisfied that UK plc—the Government and the private sector—is sufficiently focused on the huge commercial opportunities for UAV systems, an area where we seem to be well behind the Israelis and the Americans?

Baroness Neville-Rolfe: My Lords, all that we are doing will help the UK to be at the forefront of this emerging sector and I very much like the examples that my noble friend has given. We are already investing £1 billion, matched by industry, in the Aerospace Technology Institute. Its latest £25 million competition is open to projects from a range of civil aerospace technologies, including the unmanned aircraft sector.

Lord Clark of Windermere (Lab): My Lords, do the Minister and the Government fully accept that there is much use for unmanned vehicles in policing? Will she discuss with the various police authorities the possibility of them working together to provide some cover to give constant monitoring of sensitive sites in the fight against terrorism and in other issues such as emergencies? There is a tremendous opportunity for using drones. I trust that the Government are pursuing this and will encourage the police to work together on it.

Baroness Neville-Rolfe: My Lords, I very much agree with the noble Lord that there is great potential in this area. For example, police searches for missing people can be helped enormously by this sort of technology. We are working with the police, the defence sector and with industry to take forward this important technology.

Lord Glenarthur (Con): My Lords, I welcome the opportunities that are afforded by unmanned aerial vehicles and acknowledge that my noble friend referred to the regulatory regimes that are going to be necessary to ensure that this can be managed safely. Will she bear in mind that both United Kingdom and European airspace is crowded, both at the lower and the higher levels, and it will require very careful design and enforcement not only by the European Aviation Safety Agency but also by our own Civil Aviation Authority to ensure that these vehicles are safely used and monitored.

Baroness Neville-Rolfe: My Lords, yes. I take great comfort from the fact that unmanned aircraft are closely regulated by the Civil Aviation Authority and are treated in the same manner as equivalent manned aircraft. As with all other aircraft, they need to be safe to be flown and flown safely—an important principle. We recognise, of course, that more needs to be done to make the rules clear, particularly for small, unmanned aircraft, and to help address this the CAA is launching a publicity campaign, “You Have Control, Be Safe, Be Legal”.

Lord Davies of Oldham (Lab): My Lords, the House will be delighted by the progress that is being made by the industry, but the question of regulation goes far beyond just airspace. There is a question about privacy,

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the safety of the individual and the extent to which drones, which can be purchased at present for quite small sums of money—under £1,000—have wonderful technology for activities that many of us might find completely reprehensible.

Baroness Neville-Rolfe: My Lords, I agree that operators of unmanned aircraft must comply with privacy laws, which have significant penalties. Of course, in the wrong hands, these things can be damaging. We are working continuously, as is the CAA, to assess threats and make sure that we do not have the problems described. Obviously, government policy on some of this cannot be divulged, but privacy and taking great care in relation to terrorists and so on are very much on the mind of those developing this important technology.

Baroness O'Neill of Bengarve (CB): Does the Minister agree that if privacy as well as security is to be maintained it is essential that any unmanned aircraft or drone has an identifier so that people can know whose drone it is and have a comeback?

Baroness Neville-Rolfe: My Lords, all of these unmanned aircraft are subject to the air navigation order and appropriate rules are in place.

Mediterranean: Refugees and Migrants


3.31 pm

Asked by Lord Roberts of Llandudno

To ask Her Majesty’s Government what plans they have to restore migrant search and rescue facilities in the Mediterranean.

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, the UK has had no involvement in Mare Nostrum, the Italian search and rescue operation in the Mediterranean. Given that search and rescue is a competence of individual member states, the Government have no plans to call for the restoration or replacement of Mare Nostrum. Instead, we will continue to work with the EU and with countries of origin and transit to address the causes of illegal migration and combat people smugglers and traffickers.

Lord Roberts of Llandudno (LD): Does the Minister agree with Amnesty International, which says that stopping search and rescue in the Mediterranean is causing the loss of thousands of lives? How many men, women and children need to drown before the Government change their policy?

Lord Bates: I reiterate that we are talking about the Italian Government. It is their decision, which they have taken. We all share a concern about the situation and the safety of people in the Mediterranean. We need to take a long, hard look at the organised crime gangs who are trafficking people, pushing them out to sea

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with very little protection, in unseaworthy vessels, and giving them the telephone number of the Italian coastguard. That is the regrettable and appalling thing about this whole situation.

Lord Hylton (CB): Do the Government appreciate that it is likely to take months, and even years, to stop the traffickers, to prevent violence both by states and by Islamists, and to provide work for migrants in their countries of origin? Does this not make it essential to have search and rescue now?

Lord Bates: There is a two-pronged approach to this. First, there is Operation Triton, which the Italians started on 1 November; it is different but will tackle a lot of that. Secondly, there is the work that we are doing with our EU partners under the Rabat process and the Khartoum process, trying to tackle and head off the migration in the first place.

Lord Anderson of Swansea (Lab): My Lords, it is surely immoral not to rescue those in peril of drowning if we have the capability to do so. Yet at the same time we need a coherent and ordered immigration policy, and cannot offer an open door to anyone who reaches our shores. Has an effort been made to tackle this matter at source by reaching deals with the riparian countries on the south of the Mediterranean, to pay them to destroy the ships and prosecute the traffickers? At least then we can try to deal with this matter at source.

Lord Bates: I agree with the noble Lord that it would indeed be immoral and, of course, not to help someone in distress would be in contravention of our obligations under the UN convention on safety of life at sea. The Khartoum and Rabat processes, to which I referred, and the EU mobility partnerships that we have with Tunisia and Morocco, are trying to tackle exactly the issue that he raises.

Lord Avebury (LD): My Lords, does my noble friend note the comment made by the UN special rapporteur on migrant rights that it is appalling to bank on a rise in the number in people who drown acting as a deterrent? Does he think that the EU views a steep rise in the number of people killed with complacency, if not with satisfaction, because more people are drowning and acting as a deterrent?

Lord Bates: It is certainly not the case to say that the Government have been passive on this. My right honourable friend the Home Secretary had meetings with her Italian counterparts last month, and will meet them again this month. We have extended our offers of support and of course we have looked at the countries from which most of these migrants are coming, namely Syria and Ethiopia. We are putting large sums of money—£700 million in the first instance, £360 million in the second—to try and help people to give themselves a proper life at home.

Lord West of Spithead (Lab): My Lords, there is a long-standing commitment that mariners have always had to look after mariners in peril at sea, as the

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Minister says. It is very difficult to see how those in the vicinity can do anything other than help them, whether the ship happened to be British, Italian or whatever. For those who are actually based down there, surely—by UN law—they actually have to give assistance.

Lord Bates: Absolutely, and there is no change. The obligations are there for any military ships or vessels in the vicinity. They know what they have to do in terms of contacting the maritime rescue co-ordination centre and they will be directed to take those people to a safe port or to have those people passed into safe hands.

Lord Elystan-Morgan (CB): Can the Minister recollect that last Thursday he gave me a very forthright answer to a question as to what the attitude of the commander of a British naval vessel would be if he was aware that there was a refugee ship in peril within range of his ship? I was told indeed that he would most certainly lend all assistance in accordance with the law of the sea and the highest traditions of the Royal Navy. In the light of that most honest answer, what is the point of giving any impression on the part of the Government that we are gibbing in relation to search and rescue?

Lord Bates: The noble Lord is absolutely right that we need to be clear. There is a grave information message we need to get out here that of course there is no change in our humanitarian obligation. The only thing which is changing is that we are putting more money and resource behind it, but those obligations from a humanitarian point of view remain, in the proud tradition of this country and of seafarers.

Baroness Hussein-Ece (LD): My Lords, my noble friend the Minister mentioned the increase in refugees from, for example, countries such as Syria. In statements that I have seen, Ministers have said that we encourage those people to stay in their own country. The surrounding countries have taken millions and millions of refugees. Turkey took 250,000 Syrian refugees in one week, more than the EU has done in four years. Is it not time that we stepped up to the plate and set an example, and not let people drown in this way?

Lord Bates: That is so, and we have introduced the Syrian vulnerable persons relocation scheme, which is taking some of those—not enough—but of course the EU can do more. We are donating additional funds into that area but there needs to be more done to tackle the instability which is the cause of migration in the first place.

Modern Slavery 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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Serious Crime Bill [HL]

Serious Crime Bill [HL]

Third Reading

3.38 pm

Clause 61: Appeal against decision under section 60

Amendment 1

Moved by Baroness Williams of Trafford

1: Clause 61, page 49, line 40, leave out “sheriff principal” and insert “Sheriff Appeal Court”

Baroness Williams of Trafford (Con): My Lords, these technical amendments relate to the rights of appeal in Scotland against decisions on seizure and forfeiture of substances used as drug-cutting agents. In Scotland, the appeal from the decision of a sheriff under Clause 60 is to the sheriff principal. The Scottish Parliament has recently passed the Courts Reform (Scotland) Act 2014. Among other things, that Act establishes a new right of appeal from the sheriff to the Sheriff Appeal Court and, in the process, abolishes the current right of appeal from a sheriff to the sheriff principal.

Amendments 1 to 5 to Clause 61 accordingly update the avenue of appeal. The consequential amendment, Amendment 10, to Clause 74 is a transitional provision. As it is not known for definite when the Courts Reform (Scotland) Bill will come into force, this amendment provides a mechanism to refer to an appeal to the sheriff principal, if circumstances arise where this is necessary. I beg to move.

Amendment 1 agreed.

Amendments 2 to 5

Moved by Lord Bates

2: Clause 61, page 50, line 1, leave out “or sheriff principal”

3: Clause 61, page 50, line 2, leave out “or sheriff principal”

4: Clause 61, page 50, line 4, leave out “or sheriff principal”

5: Clause 61, page 50, line 9, leave out “or sheriff principal”

Amendments 2 to 5 agreed.

Amendment 6

Moved by Lord Harris of Haringey

6: After Clause 65, insert the following new Clause—

“Protection of children from sexual communications

After section 12 of the Sexual Offences Act 2003 (causing a child to watch a sexual act) insert—

“12A Protection of children from sexual communications and from communications intended to elicit a sexual response

(1) A person (“A”) commits an offence where A intentionally communicates with another person (“B”) in the following circumstances—

(a) A is aged 18 or over,

(b) either—

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13,

(c) the content of the communication is sexual or intended to elicit a response that is sexual,

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(d) subject to subsection (3) below, A’s purpose in sending the communication or seeking a response is sexual.

(2) The communication may be in any form including verbal, written or pictorial (which may include still or moving images) and may be conveyed by any means whatever.

(3) A does not commit the offence in subsection (1) above where the purpose of the communication is for the protection of the child to which the communication is sent.

(4) For the purposes of subsection (3), a person acts for the protection of a child if he acts for the purpose of—

(a) protecting the child from sexually transmitted infection,

(b) protecting the physical safety of the child,

(c) preventing the child from becoming pregnant, or

(d) promoting the child’s emotional well-being by the giving of advice and not for a sexual purpose.””

Lord Harris of Haringey (Lab): My Lords, on Report I posed the question of whether it would be an offence for an adult to elicit from a child a sexual photograph or to send a sexual message to that child. I posed the example of a young girl in her bedroom on her smart phone, sending messages to her friends, one of whom was someone purporting to be a boy who was in love with her who was actually a man 30 years her senior. I asked whether, if she was encouraged, cajoled and coaxed into sending a sexual image of herself, that would be an offence committed by the older man. I posed that question because it was clear that it would be an offence in Scotland but much less clear that it would be an offence in England, Wales and Northern Ireland.

We had a useful and helpful discussion during Report. The Minister made several points during that debate when he stated that he believed that the offence of an adult sending a sexual message to a child was already covered by existing legislation. He stated, for example, that those convicted of an offence under Section 127 of the Communications Act,

“can be made subject to a sexual offences prevention order”.—[

Official Report

, 28/10/14; col. 1117.]

In reality, it is a little bit more complicated than that. If someone was convicted under the Malicious Communications Act or the Communications Act, the sexual offences prevention order would have to be applied for as a separate process. To apply for it, the prosecution would have to prove that the defendant posed a significant risk of serious harm. The Court of Appeal has had several cases in the past year in which it has criticised the use of sexual offences prevention orders in a number of sexual cases because the threshold of significant risk was not met.

It is not difficult to foresee a situation in which an adult is communicating sexually with a child and that threshold of serious harm has not yet been met. In the early stages of grooming—for example, when an adult may send a sexual message to a child—it is unlikely that he has actually met that threshold of serious harm. That is what the new clause that I propose today is all about. It is about trying to prevent harm before it is caused to the child.

The Minister made reference to the Obscene Publications Act 1959. The hint is in the title—it is the 1959 Act, which would potentially fail to cover a great deal of verbal communications through systems such as telephone, mobile telephone or Skype. Additionally,

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as new technology advances, new forms of electronic communication will no doubt further supersede what is dealt with in the Act. Reliance on the Obscene Publications Act would result in a person sending a text being potentially guilty but a person talking over the internet not committing the offence.

The Minister asserted that, under Section 10 of the Sexual Offences Act, it is an offence for a person over the age of 18 to cause or incite a child to engage in sexual activity. However, there are many cases where a charge of incitement may not be met. The question is: what is sexual activity and what is being incited?

3.45 pm

The Minister rightly highlighted several common scenarios typical of online grooming which would be illegal. These include where messages are grossly offensive, indecent, obscene or menacing. The Minister affirmed that a message of this nature would fall foul of an offence under the Communications Act. However, the new clause that I am proposing is concerned with creating a stand-alone offence by which it would always be illegal for an adult to send a sexual message to a child. It would not have to be proved in court that it was grossly offensive, indecent, obscene or menacing, or that it caused the child distress. Similarly, it would not require an intent to meet the child. All that would be required is that the message was sexual or seeking to elicit a sexual response from the child. In most cases of online grooming the adult seeks to flatter the child, attempting to gain their trust, before inciting the child to share an indecent image of themselves. The purpose of this clause is to give the police greater powers to intervene earlier in the process of online grooming before the abuse escalates.

The Minister mentioned that the situation in Scotland was not as bright as has been claimed. I am sure it is always bright in Scotland; that is something we have all learnt in the past few months. Under the Sexual Offences (Scotland) Act 2009, it is an offence if a person,

“sends … a sexual written communication to or directs, by whatever means, a sexual verbal communication at”,

a child under the age of 16. It clearly embraces most modern forms of communication. I agree with the Minister that the Sexual Offences (Scotland) Act is by no means perfect because it states that the offence has to be for the purpose of obtaining sexual gratification which then requires proof in respect of the perpetrator. I understand that that has blocked prosecutions in some cases because it is too high a threshold.

The success of the Act in Scotland in catching adults entering into sexual communications with a child under 16 earlier in the grooming process is illustrated by a number of case studies. I shall give but one. In August 2013, 55 year-old Steven McLaren admitted sending sexualised written messages to a 10 year-old girl for the purposes of obtaining sexual gratification. McLaren was prosecuted, received a sexual offences prevention order, 300 hours of unpaid work and a £1,000 fine.

The concern is that the law as it stands is convoluted, complex and requires certain thresholds to be met before a prosecution can be made. For example, there

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to be a prosecution under some parts of the Sexual Offences Act, there has to be an intention to meet. If it were an offence under the Malicious Communications Act 1988, there would have to be an,

“intent to cause distress or anxiety”.

If it were an offence under the Communications Act 2003, it would have to be grossly offensive, obscene or menacing. In the instances I am talking about, where grooming is at the heart of what we are trying to stop, the perpetrator is not trying to be offensive or to frighten the child. The perpetrator is trying to coax the child and to convince the child that they are special, that they are being loved and that this is a loving act. That is the problem with the various ways in which other pieces of legislation are framed.

I am grateful to the Minister for organising a meeting yesterday and to the noble Baroness, Lady Williams of Trafford, for being there, along with a plethora of Home Office officials, in order to go through this. Following the debate on Report, they referred me to Section 10 of the Sexual Offences Act 2003 and to the definition in Section 78 of the word “sexual”. Section 10 relates to:

“Causing or inciting a child to engage in sexual activity”.

Most of it is about defining “sexual penetration”, and I will not burden your Lordships’ House with the degree of detail that the statute goes into. It essentially says that the adult commits an offence if,

“he intentionally causes or incites another person … to engage in an activity”,

and that activity is sexual. The section then goes on to talk about all forms of penetration.

Officials drew my attention to Section 78, which defines “sexual” for the purposes of the Act. It mentions “penetration” and “touching”, and then goes on to the part that is apparently important in this context,

“or any other activity is sexual if a reasonable person would consider that … it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”.

I confess that I am not a lawyer, but that phraseology strikes me as convoluted wording, which is difficult to formulate. The Home Office says that there have been some convictions using this convoluted wording. I asked this question yesterday, and maybe the Minister will be able to clarify this, but I would be interested to know whether those convictions were in the context of guilty pleas or were heard in court and led to a jury conviction, and whether they were in conjunction with a whole series of other offences that may or may not have been admitted as part of a package.

My point is that the law on what should be an offence —eliciting a nude photo from a child—is convoluted and confused. There needs to be a clear offence that makes it always an offence to send a sexual message or elicit a sexual message in reply. Rather than having to meet a series of criteria, the mere fact of sending a sexual message or eliciting a sexual message should be an offence.

The NSPCC tells me of a recent case where the perpetrator was asking a child to send an image of themselves topless. There was a prosecution under this section of the Sexual Offences Act and in court the defence argued that you could go to many beaches and

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see people topless, including children, so what they were doing was not sexual. It was simply as though you were on a beach. I find that a difficult argument to sustain, but it was clearly one that was used in court. I would have thought that we want to make the law quite clear. Whether or not there is a possible line of defence, it is simply not appropriate for an adult to ask a child to send such an image. I understand that it is not uncommon for the defence to make those sorts of arguments in mitigation for the actions that have been taken. We do not want to be in a position where a defence based on that sort of argument might succeed.

If you are caught speeding, it is a matter of fact. You have been speeding, and you are convicted of speeding. Why can it not be the case that if you are sending a sexual message to a child or eliciting a sexual message that should be clearly, unequivocally and without all these qualifications an offence? The real concern in all of this is that the law currently bites too late in the grooming process. These thresholds will have to be passed before the law can intervene. We need to intervene in a case before harm has been done to the child, before anything offensive has taken place and before the child is traumatised by the process that has happened. The convoluted wording means that it is simply more difficult for the police to operate. The provision sets a higher bar. Indeed, the police may never pass cases to the Crown Prosecution Service because they think that it is not worth pursuing in this way. The police need powers to intervene earlier in the grooming process so that even sending a message to a child along the lines of, “Say honey, you look hot in your bikini”, would be enough, potentially, to trigger action in this respect.

The purpose of the amendment is to make the law crystal clear that it is always an offence to send sexual messages or to elicit sexual messages from a child to make it easier for the police and the authorities to intervene at an early stage before harm is caused to the child. I beg to move.

Baroness Hamwee (LD): My Lords, as I did on Report, I support the principle of this amendment. Listening to the last example given by the noble Lord—“Honey, you look hot in your bikini”—if I were a mother with a young teenage child who had received that message and I went to the police, showed them the message and was told, “There’s nothing wrong in law here”, I would have less confidence in our legal system.

I am not convinced that a new offence is not needed, as has been argued. I have not looked at Section 78; indeed, I have not done as much detailed work as perhaps I should. Listening to the noble Lord, however, I find quite a difficulty in a “sexual communication” that comes from someone and “sexual response”. It seems that a sexual response is needed for these offences, but that of course that is not at all how the child sees it. Yes, we are accustomed not to seeing but to knowing that there are a lot of photographs around with people topless on beaches, often celebrities seeking to attract attention. I am not sure that I would like to go down the route of trying to analyse their motives.

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If there is to be an amendment, it must be right. The worst thing would be if there were inherent problems within it. I do as I did before and I hope it does not provoke teasing from the noble Lord; I assure him that I am trying to be supportive in this. I thank the NSPCC, with which I had the opportunity to meet briefly at the beginning of the week. I understand that it is consulting more widely on this. I do not want to refer to all the points that I have made, either in the previous debate or with the NSPCC, but I am glad to see that it is now suggested that the offence should be put into the Sexual Offences Act 2003, because that gives the context for penalties. I am not sure that there are penalties attached to this amendment.

I see that the words in proposed new subsection (4) come from Section 73 of that Act. I am not sure whether repeating them in a slightly different way in this amendment does not cause a bit more difficulty. In Section 73, they are a defence against aiding, abetting and so on. I think they may be interpreted there not as an exhaustive list, but there is a question in my mind as to whether in this amendment they are an exhaustive list.

Finally, in the context of online grooming, the terminology of “reasonably believe” in proposed new subsection (1)(b) causes me some concern about the evidential problems. Something like “making reasonable endeavours” to establish whether B is 16 or over would better lend itself to giving evidence to the court.

What all this amounts to is not opposition but urging us to get this right. Whether we get it right today or, as I said on Report, by an amendment during the Commons stages of this Bill, I hope that we end up with something that is workable, acknowledges current technology and is not simply defensive of the offences that are on the statute book at the moment. I am usually the first to say that if there is already something that covers this, we should not be looking for something else, but with this issue we should be looking for something else.

4 pm

Baroness Benjamin (LD): My Lords, I rise to speak in support of the amendment in the name of the noble Lord, Lord Harris. As we have heard, the amendment is supported by the NSPCC, with which I have had several discussions. The NSPCC believes that the amendment is wholly necessary because it specifically proposes that a new offence be brought in so that it is always illegal for an adult intentionally to send a sexual message to a child because this is another form of child sex abuse. This proposed new clause seeks to protect children from sexual communications.

I spoke in support of the amendment on Report and I remain committed to making it—I repeat—always illegal for an adult to send a sexual message to a child. We have to understand that the current law, a stand-alone offence as part of the Sexual Offences Act 2003, is inadequate in protecting children from online abuse. What is needed is to ensure that the law is absolutely clear that intentionally sending a sexual communication to a child is illegal. This will help prevent abuse escalating and keep children safe online in this new and dangerous world in which they are being brought

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up. We have to put all the necessary protections in place for every eventuality. We must make absolutely sure that there will be no place for perpetrators to hide.

The Minister’s response on Report perhaps focused too much on adults possessing indecent images of children. That is not what this proposed new clause is concerned with. My noble friend the Minister was correct to assert that if an adult incites and comes to possess an indecent image of a child, legislation such as Section 160 of the Criminal Justice Act would cover the possession of those images. However, this misses the purpose of this proposed new clause. Section 160 of the Criminal Justice Act makes it an offence only to possess indecent photographs of a child. For instance, it would not be illegal for a 40 year-old adult to send a message to an 11 year-old child saying, “I’d like to see a photo of you in your underwear”.

With regard to other legislation, under the Communications Act, whether a message would be deemed indecent or not is a subjective judgment. If an adult sent a message to a child describing in sexually explicit language what they fantasised about doing together, this would clearly be considered indecent and therefore illegal. However, if an adult sent messages such as, “Send me a photo of yourself, honey”, it is not clear that this could be deemed,

“grossly offensive or of an indecent, obscene or menacing character”,

as described in Section 127 of the Communications Act, but, in context, this clearly has a sexual intent. This is the gap that the proposed new clause attempts to fill. Its purpose is to catch offenders before the child has shared an indecent image because when, and if, a child is persuaded to send an indecent image of themselves, it could have devastating consequences for that child. They can become suicidal, start to self-harm and have low self-esteem, and be made to feel ashamed and dirty. This is what the NSPCC has found. I am sure that my noble friend and noble Lords across the House will agree with me about the risks a child faces once an image has been shared online, for it can be spread ever more widely at great speed without the child’s knowledge. We should do everything that we can to stop this behaviour before it happens.

The noble Lord, Lord Harris, has dealt with how the offence is not captured by various other legislation. Rather than restating his points, I will address the Minister’s belief that the Crown Prosecution Service does not currently feel that there is a gap in the law. In 2012, Phillip Pirrie was convicted for arranging to meet and sexually abuse a 13 year-old girl whom he had first contacted online. During the trial, it was revealed that he had previously contacted a 14 year-old girl through an online game. He sent that girl sexual messages. Luckily, these were found by the girl’s father, who took his concerns to the police. Sadly, no further action was taken as a meeting had not taken place between Pirrie and the girl. Under this proposed new clause, Pirrie could have been prosecuted and convicted in respect of the first victim, the 14 year-old. As a result he could have been placed on the sex offenders register and had a civil prevention order put in place. More importantly, this could have prevented him offending against the second victim, the 13 year-old. Think of the pain and suffering that this could have saved.

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As I previously stated, last year ChildLine saw a 168% increase in contacts relating to online sexual abuse. This confirms that online sexual abuse is a new blight on our children’s well-being. Clearly we must do more in this area to enable action to be taken against offenders earlier and keep children safe online. What will we do to safeguard and protect our children in this modern world? I look forward to the Minister’s response on that point.

Baroness Howarth of Breckland (CB): My Lords, I rise briefly to support the amendment of the noble Lord, Lord Harris. I will not go through all the arguments that have been made already. The Minister can easily read the NSPCC submissions, which are extremely pertinent. I will make three very different points.

I know that the Minister is extremely concerned about child abuse generally, and child sexual abuse and its prevention in particular. We are about to embark on a huge inquiry. We have discussed whether an inquiry looking at past abuse might obscure what is happening today. What we must do—I am repeating this and will continue to do so—is spend our time preventing abuse now. The lessons that we can learn from the past will help us, but it is crucial that we prevent abuse now.

I declare an interest as the vice-chair of the Lucy Faithfull Foundation, where grooming was first defined and understood. In relation to grooming, any of the experts will tell you that the perpetrator clears a number of hurdles to reach the full stature, if you like, of a paedophile. The first thing that they do is test whether they can gain the confidence of a child just through kindness, relationship and involvement. As I understand it, none of the current statutes would intervene at the point where a perpetrator sent a message saying, “I am really fond of you, I would like to see you topless or in your underwear”, or “I would like you to talk about sexual things”, or, as in one recent case, “I would like you to do something to your sister in front of me, so that I can see and understand how your relationship is going”. It gets worse as time goes on. As the perpetrator finds that they can cross one hurdle, they then discover that they are enabled to cross the next one, and the next one, until they are meeting children, and until they are fully abusing larger numbers of children. That is the history of grooming; it is how grooming works.

If we are serious about prevention, we need to prevent at that very first point. What the Minister will hear from the police—I am quite sure that he is in discussions—is that they find it quite difficult to sort out how they move forward among the enormously confusing entanglement of present legislation. I simply hope that the Government will have a look at this. I am not a lawyer; I only know what I experience in my day-to-day contact with the Lucy Faithfull Foundation, the NSPCC and other children’s organisations. They feel that not enough is being done, that one single law is needed to make it absolutely clear that we are serious about protecting our children, and that we should have an amendment—if not this one, something like it—to be able to act at the very first point.

Baroness Butler-Sloss (CB): My Lords, there appears to be a gap in child protection for the reasons that the noble Baroness has just given. I do not want to

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repeat them because everything she said was entirely accurate and always worrying. One has only to look at the stories that we have been getting around the country, not of historical abuse but of current abuse and abuse in the recent past—not just in the north but in other parts of the country. Sexual communications and the opportunity to encourage children to behave in a way that they think that they are doing to their peer group, is something that really needs to be sorted. I am no expert in this area of criminal law but if this area is not covered, as I understand to be the case, it is a serious matter that should be covered. I therefore ask the Government to look again, whether by means of this amendment or amendment of other legislation. It is not a matter to push into the long grass; it is urgent. If it is not covered, then it is urgent to cover it.

Another matter arises when a child finds that an adult is involved. If, say, this is stopped and the child finds that they were communicating not with a friend but with a grown-up, the embarrassment and distress to the child of having shown a tantalising photograph of herself or himself—remember boys are also vulnerable —has led children to commit suicide.

Baroness Smith of Basildon (Lab): My Lords, those who have a sexual, and therefore illegal, interest in children know the law. They know the gaps and complexities in the law and rely on them, given the difficulty and lack of clarity, to set themselves on a path that may not start with, but certainly ends in, abuse. After a typically thoughtful, understated and well argued case from my noble friend Lord Harris of Haringey, I was rather surprised that the Government did not bring back an amendment today, following the meeting with him.

However, today the point was made with absolute clarity across the House: there is a gap in the law; a point is missing. The noble Baroness, Lady Howarth of Breckland, referred to communications between young people. On Report, I referred to a case of which I was aware, in which an 11 year-old girl was communicating with someone she thought was another 11 year-old girl, and sharing the kind of confidences that 11 year-old girls share when embarking on and discovering their own sexuality. However, she found out later that it was a 30-plus year-old man who was communicating with her when the relationship was developed.

There clearly is a gap in the law, which needs to be changed. It needs to catch up with what is happening today. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, made the point that abuse is happening now and there is an opportunity here to make changes to the law and do something that will make a difference and protect children today, tomorrow and the day after. I am disappointed that we do not have a new government amendment before us, but I hope that either the amendment from my noble friend Lord Harris will be accepted or we will hear a commitment from the Government to bring something back that addresses this problem, as the noble and learned Baroness said, very quickly indeed.

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4.15 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, I thank the noble Lord, Lord Harris, for the way in which he introduced this amendment and, too, noble Lords for their contributions to this debate. In many ways, I thought that this characterised many of the debates we have had, in that—as I am sure my noble friend Lady Benjamin would accept—there is genuine willingness and desire to make sure that all possible loopholes are tightened, and that we take this opportunity to afford every possible protection to the most vulnerable in our society, by sharing information and evidence. I have read the NSPCC’s report and we have talked to the Crown Prosecution Service and to the national policing lead about cases being brought. We will seek to move things forward. If I can, I will comment for the record in response to the very helpful meeting that we had last night with the noble Lord, Lord Harris, and the noble Baroness, Lady Howe. As I am doing so, I will try to touch on some of the points that have been raised.

As the noble Lord, Lord Harris, knows, there is no difference between us in that we agree wholeheartedly that we need to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. As I said on Report, this House rightly remains united in its condemnation of the sexual abuse of children. What is more, it is determined to do something about it. I also paid tribute on Report to the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate.

I shall not repeat the description that I gave last time of all the offences that might be relevant in dealing with this type of behaviour. The House would not thank me for that, because the point is understood. There is a clearer point that the noble Lord, Lord Harris, raised today. However, it may be helpful if I address more specifically a couple of concerns raised on Report by the noble Lord, Lord Harris, and the noble Baroness, Lady Howe.

The noble Lord was keen that anyone seeking to persuade a child to send a naked image of himself or herself should commit an offence. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this issue affects both male and female children. He was concerned that naked photographs of children might not be caught by the definition of “indecent”. I now have had the chance to look into that particular matter and am pleased to say that the noble Lord’s concerns may be misplaced. Section 10 of the Sexual Offences Act 2003 provides that it is an offence to cause or incite a child to engage in a sexual activity. The noble Lord quoted Section 78 of that Act and that telling word in law, about which, as a non-lawyer, I am trying to get up to speed, although it is a well known test: what could be considered in the eyes of a “reasonable” person, or what people could reasonably conceive of, as sexual intent. Clearly, by any stretch of the imagination, a request to send a photograph of a child would fall within that category of reasonableness. The noble Baroness, Lady Hamwee, also referred to that.

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The definition of “sexual” is contained in Section 78 of the 2003 Act. That provides that an act is sexual if,

“it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances”,

in which it takes place,

“or the purpose of any person in relation to it … it is sexual”.

In other words, the context is crucially important. Therefore, it is entirely open to the court to conclude that, if a middle-aged man is sitting in front of a computer urging a child to send him a naked photograph—which was an example that the noble Baroness, Lady Smith, gave—or to pose naked before a webcam, his purpose makes the sending of that image by the child sexual, even if the child is not pictured undertaking any overtly sexual activity. The offence can be committed whether or not the victim complies with the request. The courts have convicted on that very basis and imposed substantial sentences of imprisonment; we discussed one case, which was actually a sentencing appeal, where the individual had been sentenced to three years in prison for precisely that offence under the order. In the process, the offender may also commit offences relating to the taking or making of indecent photographs of children.

I repeat my undertaking that the Government are going to take this very seriously. Despite all the legislation that we already have in place, none the less a gap needs to be filled. In particular, we need to explore further how best to deal with contact between a predatory individual and his victim where the messages are sexual in nature but where the victim is not being asked to respond in any particular way. Again, I want to get that wording precisely on the record because I think that is something that we all recognise.

I was particularly interested in the contribution of the noble Baroness, Lady Howarth, who of course through the Lucy Faithfull Foundation does tremendous work in this area. She pointed to the way in which paedophiles prey upon their victims and pass certain stages, and therefore how important it is to be able to tackle things as early as possible. Earlier in the Bill we discussed clauses relating to protection orders and the possession of a grooming manual being an offence. It shows that the direction of travel is recognising that we need to move further upstream in intervening at an earlier stage.

As part of that consideration, the noble Lord, Lord Harris, was kind enough to come to see me yesterday afternoon, together with the noble Baroness, Lady Howe. I was accompanied by my noble friend Lady Williams. I think they will agree that we had a useful discussion, and they have given us much food for thought as the Bill goes to another place. I agreed at that meeting, and I am happy to repeat it here on the Floor of the House, that officials would arrange a further early meeting with the NSPCC to discuss this issue further. The noble Lord is welcome to attend that meeting. We will also explore with the national policing lead and the CPS what additional guidance could be given to the police and prosecutors on the options open to them in tackling such predatory behaviours. My noble friend Lady Benjamin mentioned some scepticism, perhaps, about where the CPS was on this, but it will attend that meeting and I am very

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happy for her to attend as well. I accept the point that was made; an example was given where the police did not intervene as they could and perhaps should have done in the first instance, which then led to a more serious offence, which is precisely the type of circumstance that we are trying to prevent, and we are united in that. We are very aware of the need to look at this.

We are grateful to the NSPCC for the work it has done in bringing this to our attention. We will have that further meeting and of course there will be that other opportunity, as the Bill progresses through another place, for legislation to be introduced if needed. Of course, this is something that we will be coming back to time and again, particularly as the inquiry gets under way. Without in any way prejudging what it might recommend, it is clear that there is going to be some tightening of the law, probably, in the light of new technology and new evidence that comes to mind.

I say again that I am very grateful to the noble Lord, Lord Harris, for introducing the amendment. As this is possibly the last time I will speak on the Bill, I also pay tribute to all noble Lords who have contributed to its passage, particularly the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and, of course, the noble Baronesses, Lady Hamwee and Lady Walmsley, who contributed to a reshaping of the Bill.

The large number of government amendments which have been brought forward shows that we recognise the seriousness of this and we are united about it. We want to tackle the issues raised. We are listening and we are responding, and we will continue to do so in this very important area. With that, I wonder if the noble Lord might feel able to withdraw his amendment.

Lord Harris of Haringey: My Lords, I am grateful to all noble Lords who have contributed to this debate. I should express my gratitude to the noble Baroness, Lady Howe of Idlicote, who signed the amendment. She would have spoken to the amendment but she was, as we spoke, moving an amendment to the Consumer Rights Bill. We agreed that I would do this and she would do that, as we both have an interest in the same Bills. I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, to the noble Baronesses, Lady Howarth of Breckland and Lady Benjamin, and even to the noble Baroness, Lady Hamwee, who—despite her desire always to go through the minutiae of an amendment—indicated quite clearly that she supported the principles behind this. I am of course also grateful to my noble friend Lady Smith of Basildon for her support.

I pay particular tribute to the Minister, to whom I am very grateful for the way in which he has approached this. He has shown courtesy, and willingness to listen and to have a dialogue. That bodes well not only for the Bill before us today, but also for other Bills which may come before us with—no doubt—great frequency, given that we are talking about the Home Office. The essence of his argument is that, given what we have at the moment, it is open to the courts to say that the sorts of things we have been talking about are in fact sexual. However, I still hope that some form of words can be found, because I am concerned that if we leave things as they are it will create some lack of clarity as to what is or is not permissible.

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Under those circumstances, that may mean that the Crown Prosecution Service—or, perhaps, the police, before they even take it to the Crown Prosecution Service—may set themselves a higher threshold for deciding whether or not they should take action. The noble Baroness, Lady Benjamin, gave us the example of the police having clearly made a judgment that something had not passed the threshold, yet it was on an escalator which could lead to all sorts of other things. In my view, the wording which has been identified as possibly covering these circumstances is convoluted, and it is quite difficult to follow. I would have thought it better for all concerned if the law was clear—which is always a good principle—and made it always illegal to communicate with a child in a sexual fashion or in a sexual way, or to elicit such a sexual response.

However, I am grateful to the Minister for indicating that the Government will take this seriously, and for the commitment that before the Bill progresses through another place there will be further discussions with the NSPCC and the Crown Prosecution Service, involving Members of your Lordships’ House if we are available. I hope that there would also be some involvement of the police, because this may not be an issue only for the Crown Prosecution Service. It may be the issue that has been identified beforehand.

The objective should be clear. We need to be satisfied that the law is clear enough; that people are able to act on it; that they understand what it means; and that it shifts upstream the ability to intervene, so that it is possible to intervene before harm is caused to the child. On that basis and on the basis of the commitment made by the Minister, for which I am grateful, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

4.30 pm

Clause 67: Offence of female genital mutilation

Amendment 7

Moved by Baroness Williams of Trafford

7: Clause 67, page 54, line 39, after “4” insert “of the Female Genital Mutilation Act 2003”.

Baroness Williams of Trafford: My Lords, these drafting amendments simply seek to split Clause 67, which, as amended on Report, now deals with two distinct, albeit related, issues; namely, the extension of the extraterritorial reach of the offences in the Female Genital Mutilation Act 2003 and conferring lifelong anonymity on the victims of FGM.

I look forward to hearing what the noble Baroness, Lady Smith, has to say about her amendment before responding to it. I also understand that the noble Baroness, Lady Meacher, would like to put on the record some further observations about her proposed new offence of encouragement of FGM. For now, I beg to move.

Baroness Smith of Basildon: My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate

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on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.

The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:

“I would like to see what is good in each set of amendments put together”,

and expressed the hope that,

“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[

Official Report

, 28/10/14; col. 1092.]

That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.

There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.

As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.

The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise

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it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.

I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.

There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.

I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.

The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.

The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.

I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make.

5 Nov 2014 : Column 1636

However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.

No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.

I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.

First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?

While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.

Baroness Meacher (CB): I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.

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I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.

The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.

Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.

Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.

Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.

Baroness Butler-Sloss: My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be

5 Nov 2014 : Column 1638

dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.

Baroness Hamwee: My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.

4.45 pm

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have taken part in the discussions to enable the progress mentioned by my noble friend Lady Hamwee to take place. I think we all want the same thing; there is a slight difference of opinion in how we get there. I thank specifically the noble Baronesses, Lady Smith and Lady Meacher, and my noble friend Lady Hamwee for the time they have taken in the discussions.

The noble Baroness, Lady Smith, raised two substantive points. The first concerned whether there would not be advantages in placing the provisions in respect of FGM protection orders in the Family Law Act 1996 rather than in the FGM Act 2003 and the second concerned whether the statutory definition of FGM should be updated expressly to refer to reinfibulation. I will take the two points in turn. I am very grateful to the noble Baroness and her advisers for discussing with me the issues she raised on Report. On the first point, I believe that the noble Baroness accepted that the Government’s provisions would allow proceedings for FGM protection orders to be heard in the family court or in the family division of the High Court as family proceedings with the full range of the court’s powers. However, she was concerned that civil or family law practitioners might not be able to find the FGM protection order provisions in a criminal statute and that victims would be deterred from availing themselves of them.

As its Long Title indicates, the FGM Act 2003 restates and amends the law relating to FGM. It is not exclusively a criminal statute nor do I think that is a particularly helpful label. We remain of the view that is sensible to have all the provisions relating to this area of the law in one place—that point was made on Report. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we come to bring them into force. I think this is crucial because it is not just the law but the reinforcement and the engagement with communities that will be so important.

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With regard to the definition of FGM, I also had a helpful discussion with the noble Baroness, Lady Smith, and her advisers on whether there should be an explicit reference to reinfibulation in the FGM Act 2003. I have tried to persuade the noble Baroness of the Government’s firm view, which I set out on Report and reiterate today, that reinfibulation is already covered by the wording of the 2003 Act. As infibulation is an offence under that Act, so is reinfibulation. That reinfibulation or resuturing is an offence is clearly stated in the multi-agency practice guidelines on FGM and in the guidance of almost all of the relevant royal colleges. There may of course be a need to communicate this point to practitioners more effectively—I think there will be—but we do not accept that there is currently any need to clarify the law.

The noble Baroness also asked about the legal aid position. The Government are giving this further consideration and will clarify the position on legal aid in due course. The noble Baroness also asked whether there would be a report to Parliament on FGM protection orders after one year. We expect that the provisions of this Bill will be subject to post-legislative scrutiny in the normal way. We will ensure that our report on the working of the Bill gives figures as to the number of FGM protection orders made. I think that will be very important. It will, of course, be open to any Member of your Lordships’ House to table a Question at any time seeking such information.

I will now respond to the points made by the noble Baroness, Lady Meacher. Again, I am grateful to the noble Baroness for the constructive way in which she has pursued her and the Local Government Association’s campaign for a new offence to outlaw statements that encourage the promotion of FGM. As I indicated on Report, the Government remain to be persuaded of the case for such an offence. The Government believe that the provisions added to the Bill at Report stage are a far more targeted, and therefore more effective, way of dealing with the problem.

Of course, as well as this now strengthened body of criminal and civil law, there is more that can and should be done to overcome the culture and attitudes that allow FGM to persist. That is why, at the Girl Summit in July, we launched a declaration condemning FGM, signed by more than 200 faith and community leaders from all major religions. The faith leaders have declared that FGM is not required by their religions and is a form of child abuse. The declaration has it made clear that all religions will work together to end FGM for good. The support from faith leaders has been overwhelming and the Government are committed to turning these signatures into further action through education and community engagement, which, as I have said, are crucial. Our aim must be for all these powerful voices from authoritative and respected local leaders to drown out the minority, to whom the noble Baroness referred, who advocate and encourage FGM.

Finally, we have real concerns about the necessity and proportionality of an offence of encouraging the promotion of FGM, given that it would engage Article 10 of the European Convention on Human Rights which protects freedom of expression. None of us would condone such statements, but it does mean that we have to tread carefully before introducing what

5 Nov 2014 : Column 1640

amounts to a speech crime. The noble Baroness has briefly touched on these points and has referred to the advice she has recently received from Dexter Dias QC. I am ready and willing to meet both the noble Baroness and Dexter Dias to discuss these issues further. I hope that the offer of a further meeting will go some way to reassure the noble Baroness that we will continue to explore the issues she has raised, although I hope she will understand that I cannot offer her any commitment to bring forward a government amendment on this matter during the remaining stages of the Bill.

I say again that the whole House is united in seeking to eradicate the vile practice of FGM both from this country and across the globe. Your Lordships’ House is sending the Bill to the Commons with a powerful suite of new measures to help achieve that objective. I hope that, having heard the Government’s reasons for the approach we have taken, particularly as regards FGM protection orders, the noble Baroness, Lady Smith, will not press her amendment—as she has stated she will not—and will join me in commending the government amendments to the House.

Amendment 7 agreed.

Amendment 8

Moved by Lord Bates

8: Clause 67, divide Clause 67 into two clauses, the first (Offence of female genital mutilation: extra-territorial acts) to consist of subsections (1)(a), (b) and (d) and (3), and the second (Anonymity for victims of female genital mutilation) to consist of subsections (1)(c) and (2)

Amendment 8 agreed.

Clause 69: Female genital mutilation protection orders

Amendment 9 not moved.

Clause 74: Transitional and saving provisions

Amendment 10

Moved by Lord Bates

10: Clause 74, page 79, line 16, at end insert—

“( ) Before the day on which section 103 of the Courts Reform (Scotland) Act 2014 (abolition of appeal from a sheriff to the sheriff principal) comes into force—

(a) the reference to the Sheriff Appeal Court in subsection (3)(b) of section 61 is to be read as a reference to the sheriff principal;

(b) the references to the court in subsections (5) to (7) of that section are to be read as including references to the sheriff principal.”

Amendment 10 agreed.

Clause 75: Extent

Amendments 11 and 12

Moved by Lord Bates

11: Clause 75, page 80, line 1, leave out “and (2)”

12: Clause 75, page 80, line 2, leave out “68 and” and insert “(Anonymity for victims of female genital mutilation) to”

Amendments 11 and 12 agreed.

5 Nov 2014 : Column 1641

Clause 76: Commencement

Amendment 13

Moved by Lord Bates

13: Clause 76, page 80, line 31, after “67” insert “, (Anonymity for victims of female genital mutilation)”

Amendment 13 agreed.

A privilege amendment was made.

Bill passed and sent to the Commons.

Infrastructure Bill [HL]

Infrastruture Bill

Report (2nd Day)

4.54 pm

Amendment 86A

Moved by Lord Adonis

86A: Before Clause 17, insert the following new Clause—

“National Infrastructure Commission

There shall be an independent National Infrastructure Commission.”

Lord Adonis (Lab): My Lords, I thank Sir John Armitt for his excellent work in leading the independent review for the Labour Party on long-term infrastructure planning. I also thank Robbie Owen of Pinsent Masons for his invaluable work in preparing a draft national infrastructure Bill since the publication of the report. We have been consulting on the draft Bill and have received a positive response from across the infrastructure sectors. The draft Bill runs to 26 pages. Rather than propose all 26 pages as amendments, the House will be grateful that I have purposefully kept this proposed new clause concise and to the point. However, if the Minister tells us that he is prepared to accept the principle of an independent infrastructure commission, we would be delighted to discuss the provisions of the draft Bill with him with a view to subsequent legislation on a cross-party basis.

The case for an independent infrastructure commission is clear. The UK has historically, over many decades, underinvested in key infrastructure, which is why the World Economic Forum ranks the UK 27th for the overall quality of infrastructure in its 2014-15 Global Competitiveness Report. Our long-term infrastructure planning is weak. There is far too much stop-start decision-making and investment, and forging a political consensus in key areas such as airports and energy has proved notoriously difficult. The role of an independent commission would emphatically be not to replace Government, Parliament and the democratic process, but to inform and strengthen them. Under the Armitt plan, an independent national infrastructure commission would carry out an evidence-based assessment of the country’s infrastructure needs over a span of 25 to 30 years, focusing on nationally significant infrastructure —as defined by the Planning Act 2008—and consulting relevant stakeholders. The key economic infrastructure

5 Nov 2014 : Column 1642

sectors—energy, transport, water, waste and tele- communications—would be considered in parallel, allowing the interdependence between sectors to be thoroughly examined. Projections of economic growth, population and technological change would inform this cross-sector approach. Environmental issues and obligations would be respected and recommendations made by the commission would need to be consistent with achieving the UK’s long-term climate change targets. The result of the commission’s considerations would be a national infrastructure assessment submitted to the Chancellor, who would have a statutory duty to bring it before Parliament within six months, accompanied by any amendments that the Government might propose. We anticipate that the first assessment would be produced within three years of the establishment of the commission.

The national infrastructure assessment would therefore come forward with the Government’s full authority. Ministers would not be bound by the independent commission but changes made by the Government to the commission’s assessment would be clear and transparent and subject to full public and parliamentary debate. The plan would be fully updated every 10 years but it would be open to the Government or a new Government to seek earlier reconsideration, again on an open and transparent basis. The assessment would be debated and voted upon in both Houses. If approved, there would then be a 12-month period in which individual government departments would be required to produce sector infrastructure plans outlining the specific schemes and projects that the Government would promote to meet the needs identified in the assessment. Proposed sources of funding, timeframes for project implementation and preferred delivery vehicles will be required in the plans in order to provide real delivery momentum, credibility and confidence for investors.

Before a vote on each sector plan in Parliament, the commission would provide a statement commenting on the consistency of the Government’s proposals with identified infrastructure needs, highlighting areas where departmental sector plans fell short, which together with the 12-month deadline for producing the plans would act as a significant new discipline for Government to get on with implementation and delivery. Together these sector plans would form a national infrastructure plan for the UK—not a wish list like the current national infrastructure plan, but a statement of priority national projects with key milestones, delivery targets and vehicles and sources of funding set out in each case.

We have shown in recent years that we can deliver on major national infrastructure. The Olympics were delivered on time and on budget and the Crossrail project continues to progress well. Financial institutions are generally keen to invest in British infrastructure so long as risk and return are well balanced, but in key areas decisions have not been timely and investment has been poorly planned, inefficient and inadequate. To take just transport, the history of the railway system and airports in the south-east of England over the past 50 years is a running commentary on the failure of long-term strategic planning. There is a real danger that energy, water and flood prevention infrastructure could soon become so. The problem

5 Nov 2014 : Column 1643

clearly lies with the quality and timeliness of planning and political decision-making as much as with the delivery. The current Davies commission on airports is a kind of mini-infrastructure commission, set up precisely because of the failure to resolve airport capacity issues in south-east England over the past 15 years under both this and the last Labour Government. We are proposing a similar approach applied more broadly.

5 pm

There is a wide basis of support for evidence- based decision-making in infrastructure planning and delivery, and support specifically from the Armitt review proposals, the LSE Growth Commission, the EEF—the manufacturers’ organisation—and the Institution of Civil Engineers. These proposals will promote better public understanding of the key infrastructure issues facing the country by developing evidence about the condition of the nation’s assets and the projected impact of key economic, environmental and demographic trends, as well as the implications of delayed investment or doing nothing at all.

The proposed commission tackles the problem outlined by one respondent to the Armitt review—that,

“at present, no single body in the UK takes a view of what the picture on the front of the jigsaw box looks like. Rather we hope it comes together, mainly by chance”.

National infrastructure is too important to be treated in this cavalier way. It is time for an independent national infrastructure commission to improve the process. I beg to move.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, first, I thank the noble Lord for his amendment, which allows us to outline again the Government’s position on national infrastructure. I must admit that when he started talking about the Armitt review, I was concerned for a moment, as I was settling down, as to whether the word was Armitt or Ahmad. That threw me a bit—but we are clear which report we are talking about here.

We believe that the national infrastructure plan already delivers unparalleled levels of investment. The Government recognise—and the noble Lord acknowledged this—that infrastructure projects have been delivered on time and on budget. He referred to the Olympics. It is noteworthy that the person responsible for delivering the Olympics on time and on budget is the current Minister for Infrastructure in our Government, my noble friend Lord Deighton. I believe that all noble Lords will agree that he has great expertise in this area.

Of course the Government recognise the importance of the long term in looking at infrastructure investment. Investing in infrastructure is a central part of the Government’s long-term economic plan to build a stronger and more competitive economy. For this reason, the Government have introduced the national infrastructure plan, which has brought together our approach to investing in energy, transport, telecoms, water and waste networks into one place. This has brought a step change in delivering UK infrastructure. We are introducing an ambitious new energy strategy to incentivise additional electricity capacity for the

5 Nov 2014 : Column 1644

UK and support low-carbon electricity generation. In road and rail networks, we are seeing new investment at rates not known for several decades. Our plan provides sound justification for infrastructure projects that have secured buy-in from a broad range of stakeholders.

We have set out long-term capital settlements to align with the national infrastructure plan. These commitments have led to new investment out to 2021, in sectors such as roads and flood defences, and long-term funding plans for projects such as High Speed 2. This has all helped to ensure stability and continuity of infrastructure investment in the decades to come.

I turn to the issue of the independent infrastructure body. The Government disagree with this amendment and have reservations about introducing an independent body without a clear understanding of the impacts of the change. Failure to understand this would create greater uncertainty and risk the successful delivery of UK infrastructure. We believe that resourcing requirements to support a commission have not been fully established or costed. Establishing a new authority for infrastructure would involve significant complexities and would distract from the business of providing the infrastructure that the country needs now and in the future.

It is essential that the Government focus on delivery. The central issue is to ensure that the UK has a robust plan to address the challenges facing our networks in the future. The Government have developed a strategy to meet current and future demand through the renewal of existing infrastructure and to grow a global economy with modern infrastructure networks. In doing this, we have sought to address climate change and energy security. This investment is vital for future economic growth. However, it is not clear how introducing a national infrastructure commission would address these pressing issues.

The Government already have a strong track record in major infrastructure delivery. While a national infrastructure commission is an untested and, as yet, unproven idea, the Government take delivering infrastructure extremely seriously. The latest infrastructure pipeline shows that £383 billion of investment is planned for infrastructure networks over the course of the next Parliament and beyond. The noble Lord mentioned specific transport projects. We have had 45 major road and local transport projects since 2010, and the start of construction on flagship projects, such as Northern Hub and the Mersey Gateway Bridge, as well as substantive progress on Crossrail, provides good examples. In addition, more than £45 million has been invested in electricity generation networks between 2010 and 2013 and contracts have already been signed under the electricity market reform, with a further allocation currently under way. The UK is rated as the most energy-secure country in the EU and is fourth in the world.

I believe that we are in a good place when it comes to infrastructure and investment in infrastructure for the current, medium and long term. With the reassurances I have provided, I hope that the noble Lord is minded to withdraw his amendment.

Lord Adonis: My Lords, I am grateful to the Minister for his response. He offers me a tantalising prospect that, if we were to rename the Armitt report the

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Ahmad report, then he might be prepared to accept the amendment. I offer him that potential deal across the Dispatch Box, though Sir John Armitt might want some hybrid name attached to the report in consequence.

I am disappointed by the response of the noble Lord. In many other areas, such as fiscal and competition policy, we have independent bodies which advise Ministers. Looking at the history of this country over the last two generations, it is clear that we have had serious problems in the planning of our national infrastructure. This is not just in bringing objective evidence to bear on the debate, but in the establishment of cross-party consensus in areas of high priority. We believe that a commission of this kind could significantly contribute to the process.

The area I know well—transport—is a testimony to the problems of failure to address long-term infrastructure planning on an independent and consensual basis. Airports policy has been a yo-yo since the 1960s. There has been stop-start on Maplin, then at Heathrow, and it has taken 15 years to make decisions about increased airport capacity in the south-east of England. Electrification of the railways has been delayed for the best part of a generation because of the lack of any long-term plan. The noble Lord mentioned HS2 and I am glad that a cross-party consensus has been reached on it. However, it was only five years ago—a generation after most of continental Europe and large parts of Asia started to develop high-speed rail networks—that we even started to consider the potential for high-speed rail in this country because there was no medium and long-term planning.

The Minister mentioned roads and the roads programme. As many noble Lords with major road developments in their areas know, this is a classic case of stop-go. Every time there is a downturn, there is a massive slashing of projects, only for them to have to be revived again a few years later at significant additional expense because there is no agreed medium-term plan. In 2010, when the present Government came in, there were huge reductions in the roads programme for strategic roads, which have since had to be partly reinstated. A system of national infrastructure planning of the kind that we propose could only strengthen the bringing to bear of objective evidence, strengthen cross- party consensus and give a louder voice to capital spending and infrastructure projects within the government machine itself.

The noble Lord referred to the resourcing requirements of the commissioners, but they would of course be a fraction of the cost of the projects themselves and there are already significant staff who develop infrastructure in individual departments. This would enable them to be pulled together to operate more effectively with some clear central direction.

It is only a matter of time before a commission of this kind is established. As I said, in so many other areas of critical policy, the bringing to bear of expert advice reporting to Ministers and Parliament to provide a basis on which decisions can be taken has been a course that has been followed. I believe it will be followed in due course in the case of infrastructure. I would therefore like to test the opinion of the House.

5 Nov 2014 : Column 1646

5.11 pm

Division on Amendment 86A

Contents 195; Not-Contents 235.

Amendment 86A disagreed.

Division No.  1


Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley of Knighton, L.

Best, L.

Bhatia, L.

Bichard, L.

Bilimoria, L.

Billingham, B.

Blackstone, B.

Boateng, L.

Borrie, L.

Bradley, L.

Bragg, L.

Brookman, L.

Butler-Sloss, B.

Campbell-Savours, L.

Cashman, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Corston, B.

Craig of Radley, L.

Craigavon, V.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Deech, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Elder, L.

Erroll, E.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Ford, B.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Gibson of Market Rasen, B.

Glasman, L.

Gordon of Strathblane, L.

Goudie, B.

Grantchester, L.

Greengross, B.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, 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.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Laming, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Lea of Crondall, L.

Lennie, L.

Liddell of Coatdyke, B.

Liddle, L.

Lister of Burtersett, B.

Low of Dalston, L.

McAvoy, L.

McCluskey, L.

McConnell of Glenscorrodale, L.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Masham of Ilton, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Yardley, B.

5 Nov 2014 : Column 1647

Norwich, Bp.

Nye, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Pannick, L.

Patel, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Portsmouth, Bp.

Prescott, L.

Puttnam, L.

Quin, B.

Radice, L.

Ramsbotham, L.

Rea, L.

Rebuck, B.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

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Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sawyer, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Sugar, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Trees, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Uddin, B.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Williams of Elvel, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

Young of Old Scone, B.


Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B.

Armstrong of Ilminster, L.

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Byford, B.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Chalker of Wallasey, B.

Chidgey, L.

Chisholm of Owlpen, B.

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Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Empey, L.

Evans of Bowes Park, B.

Farmer, L.

Faulks, L.

Fellowes, L.

Fellowes of West Stafford, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

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Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

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German, L.

Glasgow, E.

Glenarthur, L.

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Harding of Winscombe, B.

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Henley, L.

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Hodgson of Abinger, B.

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Hunt of Wirral, L.

Hurd of Westwell, L.

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Jolly, B.

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Kakkar, L.

Kalms, L.

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King of Bridgwater, L.

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Knight of Collingtree, B.

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Younger of Leckie, V.

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5.27 pm

Amendment 86B

Moved by Lord Adonis

86B: Before Clause 17, insert the following new Clause—

“National infrastructure projects: new towns

(1) The objects of a development corporation established for the purpose of creating a new town shall be to secure the physical laying out of infrastructure and the long-term sustainable development of the new town.

(2) In this section, “sustainable development” means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.

(3) In achieving sustainable development, development corporations should—

(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;

(b) contribute to the sustainable economic development of the town;

(c) contribute to the cultural and artistic development of the town;

(d) protect and enhance the natural and historic environment;

(e) contribute to mitigation and adaptation of climate change consistent with the objectives of the Climate Change Act 2008;

(f) promote high quality and inclusive design;

(g) ensure that decision-making is open, transparent, participative and accountable; and

(h) ensure that assets are managed in the long-term interest of the community.

(4) In this section “infrastructure” includes—

(a) water, electricity, gas, telecommunications, sewerage and other services;

(b) roads, railways and other transport facilities;

(c) retail and other business facilities;

(d) health, educational, employment and training facilities;

(e) social, religious, recreational and cultural facilities;

(f) green infrastructure and ecosystems;

(g) cremation and burial facilities; and

(h) community facilities not falling within paragraphs (a) to (f); and

“land” is defined as including all the matters set out in the definition of “land” in Schedule 1 to the Interpretation Act 1978, and also housing including (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the building or part of building concerned.”

Lord Adonis: My Lords, the building of new towns and major urban extensions is a critical national issue in the face of Britain’s acute housing shortage. The designation of Ebbsfleet as a new town and the recent Wolfson Prize competition for a new town scheme demonstrates the enthusiasm and capacity that there is for developing the concept in modern conditions. All three of the major parties in the House are committed to new town or garden city developments, and I take these to mean the same thing, given the importance of green and sustainable development as part of any new town or urban extension.

This amendment intends to capture the spirit of the post-war rebuilding of the country that was spurred on by the original New Towns Act 1946, creating

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places that today are part of the fabric of our country, such as Milton Keynes, Stevenage and Welwyn Garden City. However, although previous new town legislation provided powers to deliver new towns, the towns that were built did not always conform to the highest design and quality standards. The objectives set out in this amendment update the existing legislation in the New Towns Act 1981—which has barely been used—to ensure protection for the natural and historic environments, to require high-quality and inclusive design and to contribute towards a low-carbon future. The aim is that no part of a new town will be eligible for the Carbuncle Cup, an annual award from

Building Design

magazine for the ugliest building in the United Kingdom completed in the last 12 months.

Developing places in which people love to live is a topic gathering increasing attention as we look to substantial new settlements. The winner of this year’s Wolfson Prize, David Rudlin, proposes a six-point “social contract” for the development of garden cities. The participative decision-making proposed in this amendment is reflected in Mr Rudlin’s winning entry, which proposes that existing towns and cities should be able to bid for new garden city status to build substantial high-quality and sustainable urban extensions. This includes not only high quality standards, but the requirements that new garden cities include major institutions of learning; that they be well connected by public transport and cycleways; and that for every acre of land developed, another will be given back to the city as accessible public space, including forests, lakes and country parks.

When my noble friend Lord McKenzie of Luton raised in Committee this issue of promoting sustainable and liveable communities in new towns, the government response was odd. The noble Baroness, Lady Stowell, said it was “absolutely essential” that good-quality design and the other key elements of the amendment—open decision-making, cultural and artistic development, and enhancement of the natural and historic environment—be built into new town development, but the Government were worried that to say so explicitly in statute would be “unhelpful”. But how can it be unhelpful to specify things that are so essential but are not in fact contained in the New Towns Act 1981? If they are not specified, that could lead to what David Rudlin calls “mere dormitory suburbs”.

When the Government say it is unhelpful to specify essential features of new towns, I believe they are confusing being concise with being brief. Being concise shows an excellent grasp of the issue, while being brief can demonstrate a lack of understanding of an issue. This amendment clearly and concisely prescribes the factors that development corporations should consider to achieve sustainable development, from environmental considerations to economic ones. The amendment is therefore helpful, not unhelpful. If the Government are to object on the grounds of brevity, I ask them: which factors set out in the amendment do they think should not always be considered when building sustainable new communities? I beg to move.

Lord Jenkin of Roding (Con): My Lords, I will be brief. The two amendments—the one we have just voted on and the one just moved by the noble Lord,

5 Nov 2014 : Column 1651

Lord Adonis—are starred amendments. It is treating this House with contempt to raise two serious issues at the very last moment for consideration in today’s business. I am not in the least surprised that in the previous debate only the noble Lord and my noble friend Lord Ahmad spoke. No one had a chance to consider what it was about and take advice. Now we have another one.

This is an important issue. As a former Environment Secretary, I dealt with planning matters, and have lived near some of the post-war new towns. I will not weary the House by repeating what I said in Committee about the appalling mistakes made, for instance in Harlow, which turned out to be a byword for the misery of large numbers of citizens who moved from the city centres out to a town that was full of lakes, parks and everything but failed to have any sense of community at all—certainly for decades. I do not in any way underestimate the need for substantial improvements in the system, and I like to think that in recent developments there have been considerable improvements; we have not had a repetition of those experiences.

However, these are important matters and one has to ask oneself: why did the noble Lord leave it until only yesterday to table this amendment and asking my noble friend to give a considered view of the matters that he raises in it? I say again: it is treating this House with contempt.

Lord Adonis: I should point out to the noble Lord that this amendment was tabled and debated in Committee.

Lord Jenkin of Roding: Why leave it until the last moment on Report? Why did he not put it down it a week or 10 days ago, when most of the other amendments were tabled, so that people would have a chance to look at it and consult? That is my complaint. I have great respect for the noble Lord’s ability, but sometimes he gives the impression that he walks on water.

Lord Ahmad of Wimbledon: My Lords, I thank my noble friend for his intervention and the noble Lord for his amendment. I feel somewhat spiritually awakened by my noble friend’s final comment about walking on water. I hope I can provide clarity on why the Government are not in a position to accept the amendment at this time.

I shall start with our common ground. I agree wholeheartedly with the noble Lord, Lord Adonis, that creating well designed, sustainable communities should be at the heart of any new development. In Amendment 86B, tabled by the noble Lord, two main objectives are proposed for a development corporation to be established for the purpose of creating a new town and for the physical laying-out of infrastructure and long-term sustainable development of the new town.

However, I do not think that prescribing the objects of a new town development corporation in detail would help to achieve that objective in a way that allowed for sufficient flexibility locally. There is much to be said for the simplicity of the current objective of

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new town development corporations, as indeed set out in statute: to secure the laying out and development of the new town.

The amendment proposes that sustainable development should be included in the objects of new town development corporations. Let me emphasise that the Government strongly support the principle of sustainable development. Indeed, that principle is central to the document National Planning Policy Framework, which provides a clear view of what sustainable development means in practice. We believe that creating an additional statutory definition of sustainable development could serve to reduce that very clarity.

I note that no new town development corporations have been created since 1970. However, I am clear that any future new town development corporations, as well as urban development corporations, such as the one the Government are proposing to establish at Ebbsfleet, should have a strong focus on securing sustainable development in a way that reflects local circumstances and needs. I look forward to Her Majesty’s Opposition supporting the creation of the new town at Ebbsfleet, as we seek to establish it in another Bill.

I hope that the clarity I have provided, with brevity, gives the noble Lord sufficient comfort to withdraw his amendment.

Lord Adonis: My Lords, I am grateful to the noble Lord for putting on record the Government’s commitment to sustainable development and high-quality design, which is of key importance.

If I may, I shall respond further to the noble Lord, Lord Jenkin. The amendments were tabled on Monday, which was the day before yesterday, so there was certainly time for noble Lords to engage fully with the issues—and, indeed, for the noble Lord to have read the Armitt report, which was published some months ago. It is not a recent document, by any means.

Lord Jenkin of Roding: I am sorry—

Lord Ahmad of Wimbledon: They say, “Once a Whip, always a Whip”. We are on Report, and no other interventions would be appropriate.

Lord Adonis: I was very willing to give way to the noble Lord, because I did mention him. I think that I had a right of reply to his points, given that he said there had been almost no notice of these amendments.

Amendment 86B was tabled by my noble friend Lord McKenzie in Committee—it is exactly the same amendment. The reason we regard it as so important that the law takes account of the issues specified in the amendment, that sustainable development should,

“contribute to the cultural and artistic development of the town … protect and enhance the natural and historic environment … promote high quality and inclusive design … ensure that decision-making is open, transparent, participative and accountable … and ensure that assets are managed in the long-term interest of the community”,

and so on, is precisely because of the point that the noble Lord, Lord Jenkin, raised: our last experience of developing new towns in this country was not wholly happy. There have been many very positive elements

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to the new towns and most of them now function extremely well. However, in some cases the quality of the initial design was not high enough. The Minister said that no new town development corporations have been set up since 1970, but we are just about to begin the process of developing new towns and major urban extensions again. The Government have named Ebbsfleet as the first. It is very likely that others will follow, given the need at least to double the rate of national housebuilding. Therefore, it seems to us, and probably to most people in the House, that having a proper set of criteria for the development of new towns is timely. If it cannot be done in this Bill—and we do not intend to press this amendment today—it should be done before we embark on the next new era of garden city development. I beg leave to withdraw the amendment.

Amendment 86B withdrawn.

Clause 20: Deemed discharge of planning conditions

Amendment 86C not moved.

Amendment 87

Moved by Baroness Whitaker

87: After Clause 20, insert the following new Clause—

“Sustainable development and design

In section 10(3) of the Planning Act 2008 (sustainable development), omit the words “the desirability of”.”

Baroness Whitaker (Lab): My Lords, Amendment 87 is in my name and those of the noble Lords, Lord Jenkin of Roding and Lord Tyler, and the noble Earl, Lord Lytton, who regrets that he is unavoidably absent. I am also honoured to have the support of the Town and Country Planning Association and the Royal Town Planning Institute. We think that this amendment is crucial to realising the aspirations of the national policy statement, which lie behind and above infrastructure development, and to furthering public consent to the essential provision of new transport and energy infrastructure.

First, I welcome the many revisions in the strategic highways company draft licence, in particular paragraph 5.22, which says:

“The Licence holder must have due regard to relevant principles and guidance on good design, such as those set out by the Commission for Architecture and the Built Environment (Cabe) and the Design Council, to ensure that the development of the network takes account of geographical, environmental and socio-economic context”.

I salute the Minister on this progress. I hope it is not churlish to do an Oliver Twist act and ask for more. Oliver Twist did, after all, ask for more necessary sustenance. The problem is that the licence does not carry nearly the same weight as the statute. It is the national policy statement that is the critical decision-making document. My plea is for explicit recognition of the crucial role of design on the face of the relevant statute, in this case the Planning Act 2008, where it sets out the obligations of the Secretary of State in preparing the national policy statement. The change that we propose is a modest one. While it strengthens and simplifies the obligation with regard to climate

5 Nov 2014 : Column 1654

change—extremely important, too—and good design, it makes no change to the overarching and heavily qualified obligations in Section 10(2) that govern the section I propose to amend.

We need to look back to see why this amendment is so important. We need to remember those miles of urban highway that have created lasting problems, which my noble friend Lord Adonis referred to, by dividing communities, by ignoring the beauty element and by despoiling some of our most cherished landscapes; these include the M8 in Glasgow and the M3 in Belfast. Closer to the present time, we can think of High Speed 2’s path through the National Trust’s Hardwick Hall. Although this will be dealt with by the hybrid Bill, the issue illustrates the enormous concern we must have to ensure the right design outcomes for infrastructure with a life of many decades.

The purpose of the amendment is in a non-prescriptive way to ensure that design issues are taken more seriously by decision-makers in the preparation of policy. It does that by strengthening the Planning Act 2008’s obligation to consider good design and adaptability to climate change in the achievement of sustainable development. The 2008 Act says only that the Secretary of State must,

“have regard to the desirability of … mitigating, and adapting to, climate change”,

and “achieving good design”. We think that the words “the desirability of” must go. They make good design desirable rather than necessary, which is a misreading of the function of design. The obligation already includes a significant degree of flexibility, because of the words “contribute to” in the primary obligation of achieving sustainable development.

5.45 pm

Experience so far shows the value of a change such as this. Both the National Policy Statement for Ports, adopted in 2012, and the most recent National Policy Statement on National Networks have very brief generic statements on good design. Indeed, they are rather depressingly similar, with little or no reference to the specific design indications of differing forms of infra- structure, such as linear road structure compared with a major power plant. It is almost as if there has been a bit of cutting and pasting, and the language is very qualified. I quote the Town and Country Planning Association’s verdict that the national policy statement on design,

“lacks ambition and emphasis and is unlikely to direct decision-makers to prioritise high quality design outcomes.”

Basically, the current legislative provisions provide some rhetorical emphasis for good design, but they do not create the kind of priority for policymakers that could reassure us that our new infrastructure will be of the design quality which Britain needs and deserves. I beg to move.

Lord Jenkin of Roding: My Lords, I am very happy indeed to add my name to the amendment tabled by the noble Baroness. This is partly because I have long had an admiration for the persistence with which over many years she has pursued this objective of achieving better design for our buildings and structures in this country. She deserves our support.

5 Nov 2014 : Column 1655

I referred briefly in my previous intervention to the time when I was Environment Secretary, and as such found on my desk a number of very major projects. Not all of them would have been described as infrastructure, but nevertheless one was very conscious indeed of the enormous importance of design as a criterion for desirability and for making sure that something was going to last. Indeed, there was a view in the department at the time that if a building was really bad, it would not last more than 50 years. However, 50 years is more than half a lifetime—perhaps it is less than that now, but it was then. One needs to do one’s best to avoid those bad buildings.

One particular decision with which I have always been rather pleased—which was not infrastructure except in the broadest sense of that word—concerned what is now the Sainsbury Wing of the National Gallery. That decision turned entirely on the design that had originally been proposed, which was so memorably castigated by His Royal Highness the Prince of Wales in a remarkable speech. I must say that it made me very angry at the time, because this planning decision was sitting on my desk and yet I received no advance warning at all that he was going to say anything about it.

When I then had to deal with it, I tried to see whether he was right. I came to the conclusion that, yes, of course he was right. That design was deplorable, as the recent account published by the National Gallery itself has indicated. As a result, we got an entirely new initiative from the Sainsbury brothers, and the Sainsbury Wing is now a very considerable adornment to that part of Trafalgar Square and to the National Gallery itself, based entirely on design. I therefore attach very great importance to this.

One of the important points made by the noble Baroness in her speech concerned the very limited extent to which the criterion of design has been imported into the national planning policy statements. She said that some of them gave the impression of having been cut and pasted, because they simply took the same words. If one looks, for instance, at the National Policy Statement for Ports about this, it really does not add anything to what has been said before about other forms of development. There is nothing specifically regarding ports. From time to time, I have found myself sailing past the Felixstowe dock, which is a tremendous container port. It is actually rather a fine structure when seen from the River Orwell. Then you go further up the River Orwell and there is a perfectly lovely bridge, the Orwell Bridge. We are perfectly capable of choosing first-class designs, but it needs to be at the centre. Sharpening up the obligation to put design at the heart of the planning system and planning criteria, which the amendment moved by the noble Baroness, Lady Whitaker, would achieve, seems to me a very valuable thing to do. I support her amendment and I hope that she will continue to bang away at this issue. She has made great progress in other quarters and she needs to do it in this one as well.

The Earl of Clancarty (CB): My Lords, I support Amendment 87 in the name of the noble Baroness, Lady Whitaker. As she said, good design is not just desirable but necessary.

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The noble Baroness talked about beauty and despoliation of the environment. They are aesthetic concerns which are aspects of wider cultural concerns, themselves a significant and necessary component of good design. I would therefore go further in paragraph 5.22 of the draft licence which the noble Baroness quoted, because I think that the absence of the word “cultural” is an omission. The relevant wording might then state that “the development of the network takes account of geographical, environmental, cultural and socio-economic context”. However, I acknowledge the work that the noble Baroness and others have put in to get as far as they have with the wording as it stands.

This is not about function, operation and maintenance versus culture or design. The precise function or functions of our highways, road networks and the built environment are themselves cultural issues. For instance, if we take into consideration initiatives very different from the norm in this country such as shared space schemes, which are intended to encourage more co-operative rather than competitive spaces, it becomes more objectively clear how form and function reflect each other in a very particular cultural sense. Good design needs to be thought of as central to planning and not as an add-on, not least because there needs to be a wider discussion about what good design is and means in relation to the precise nature of the changes which we have made and continue to make to our environment.

Lord McKenzie of Luton (Lab): My Lords, I am very happy to support my noble friend Lady Whitaker’s amendment and to support those other noble Lords who have spoken in favour of it. Like the noble Lord, Lord Jenkin, I am a great admirer of the way in which my noble friend Lady Whitaker has persistently championed the cause of good design and always the enlightened approach to planning.

As I understand it, the change in wording that is proposed is quite modest, but its impact could be quite profound. The 2008 Act, rather than stating that,

“the Secretary of State must … have regard to the desirability of … achieving good design”,

would state that “the Secretary of State must have regard to achieving good design”. The former, as my noble friend said, suggests that good design is somehow optional. The amendment would make sure that it was not. I hope that the Government are able to accept this small but important amendment.

Lord Mawson (CB): My Lords, I, too, support the amendment. When I arrived in the East End of London 30 years ago this year, I was very conscious of the poor quality of design of large infrastructure. As you spent time in one of the most challenging housing estates, you saw the effect of some of that on ordinary people’s lives. At the Bromley by Bow Centre, we began to challenge that logic of poor-quality design. When we built the first integrated health centre in Britain, we did so from hand-made bricks—like those used at that time at Glyndebourne opera house. There followed a beautiful cloister facing a park and bringing together health, education and enterprise in what is now a rather beautiful environment, in the middle of a housing estate, that has affected many things around it.

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I have noticed over the years how people are the environments that we live, work and play in. If you create certain sorts of environment, you get certain sorts of human behaviour. In our park on the housing estate, we do not have any cameras; local people have taken a lot of ownership of it. We have probably one of the few wooden playgrounds that are not burnt every night. If you put numbers around all that, you see that the value of it to people and the Exchequer is considerable. We are following similar principles in the Olympic Park—where I am a director and sit on the planning committee—and trying to ensure that we do not repeat the tacky stuff that has gone on before but build a very beautiful environment that begins to have a major catalytic effect on the quality of design that is starting to happen in the lower Lea Valley. It is interesting to watch how local people and others, and children running through the beautiful fountains, respond to all that. If one looks at the quality of what is being built and the lack of graffiti and other things, one gets a sense of how these things affect human life and their financial implications.

Yes, I suspect that it is difficult to measure in numbers terms; it is difficult to know which box you tick; but my 30 years of experience suggests that quality of design has a massive impact. I suggest that we ignore it at our peril.

Lord Ahmad of Wimbledon: My Lords, I, too, acknowledge the work that the noble Baroness has done in this respect. I agree with what she said about good design being necessary. While she acknowledged the steps that the Government have taken in this regard—for which I thank her—she cited Oliver Twist and said that she might be perceived as being churlish in asking for more. I would never accuse the noble Baroness of being churlish. I recall that the response to Oliver Twist asking for more was, “Do you want more?”. That will certainly not be my response at this juncture, but I wish to set out the Government’s position. I also thank other noble Lords, including my noble friend Lord Jenkin, for their contributions.