Grand Committee
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Defence Reform Bill
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The Deputy Chairman of Committees (Lord Colwyn) (Con)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Bells are rung and resume after 10 minutes.
Clause 5: Jurisdiction of Ministry of Defence Police
Amendment 10
Lord Hodgson of Astley Abbotts (Con)
My Lords, in moving Amendment 10, I will speak at the same time to Amendment 11. I have tabled a series of amendments to the Bill, which I have formed into two groups: this one and a second group comprising Amendments 14, 15 and 16, which we shall come to later on. The purpose of both groups is to shed light on an issue that is causing rising public concern: the increasing use of what have been variously called “drones”, “unmanned aerial systems”, and “remotely piloted aircraft systems”. I would argue that the fact that there is no agreed terminology to describe these devices is an indication of the very rapid rate of change and development taking place and, perhaps, of the extent to which the appropriate level of democratic oversight, control and challenge is lagging behind.
It was interesting to note the amount of public and press interest—including international press interest—when I tabled these rather modest amendments to be debated in the Moses Room, which shows that this is a very live issue for many of our fellow citizens. At this stage, these are all probing amendments, but there are serious issues of public policy at stake about which I hope my noble friend will be able to reassure all Members of the Committee. I am grateful to my noble friend Lady Miller of Chilthorne Domer, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, who put their names to these amendments. I look forward to hearing their particular concerns and contributions later in the debate.
As I said, there are two groups of amendments, but they focus on one issue. I will give some general background which will set both groups in context and enable me to be a great deal briefer when we come to the second group. Finally, before doing so, I need to declare for the record my interests in this and allied fields. I am a member of the APPG on Drones, I am treasurer of the All-Party Group on Extraordinary Rendition and I am a trustee of Fair Trials International. With that—to horse.
Public concern about drones takes, I think, two forms. The first lies in what one might describe as the here and now. The public are concerned about the collateral damage arising from what appears to be an increasingly prevalent—some would say indiscriminate—use of drones. To illustrate, I can do no better than to quote from a letter sent to all Members of your Lordships’ House by Reprieve. It describes a trip to Congress in the United States by Rafiq ur Rehman, a schoolteacher from Pakistan, who was accompanied by his children Zubair, 13, and Nabila, nine. The family were there to talk about 67 year-old Mammana Bibi—Rafiq’s mother, the children’s grandmother and the local community’s midwife. She was killed by a CIA drone strike in October 2012 while picking okra in a field near her home. Zubair and Nabila were also injured when the missile hit and had to be treated in hospital for shrapnel wounds. Speaking to members of Congress on Capitol Hill, Rafiq described his mother as follows:
“She was the string that held our family together. Since her death, the string has been broken and life has not been the same … My family no longer gathers together like it did when my mother was alive … they are afraid to visit because the drone might then kill them, too”.
I leave it to wiser heads than mine as to whether this is a good way to win over uncommitted hearts and minds.
Drones do not act in a vacuum—they act on information supplied to them. The public are anxious to know who is supplying this information and how it is being supplied. The legal context may be simply stated—and, in saying that, I am benefiting from advice given by Jemima Stratford QC. Individuals in a war are entitled to kill each other. That is the doctrine of combatant immunity. In addition, both the law in this country and international law recognise the status of some individuals as lawful combatants engaged in international armed conflict. However, killing an individual outside that framework is, to put it starkly, murder. Assisting in the killing of an individual outside that framework is assisting in an act of murder. The recent killings by drone strikes in Yemen and Pakistan, neither of which is at war with the United Kingdom or the United States, have increased public concern.
That is the here and now. However, public concern is beginning to take on another form. What does the future hold? This year we are commemorating the outbreak of the First World War, 100 years ago in the autumn of 1914. When the young men rushed enthusiastically to the recruiting offices that autumn, they had no real understanding of the killing power of the modern machine gun. If they had, there were fears that their enthusiasm might have been somewhat tempered. We, however, know about the capabilities of the machine gun and the capabilities and consequences of the atom bomb. Moreover, with the technical developments in television, by the 1970s war was being brought into our front room.
Some of you may recall an American singer-songwriter and satirist called Tom Lehrer who was also a professor of mathematics at Harvard University. He said that for the next war, the songs must be written in advance. His contribution went like this, although I shall not sing it:
“So long, Mom, I'm off to drop the bomb
So don't wait up for me
But while you swelter down there in your shelter
You can see me on your TV
While we’re attacking frontally
Watch Brinkley and Huntley
Describing contrapuntally
The cities we have lost
No need for you to miss a minute
Of the agonising Holocaust”.
Humorous though the song was, that trend has been accentuated by the development of the mobile phone—and especially of the mobile phone with inbuilt camera. As a consequence, for quite understandable operational reasons, the Armed Forces have put restrictions on mobile phones on the battlefield.
Here lies the first critical point. The camera and the mobile phone are, in their own way, rather effective peacekeeping devices. The Holocaust occurred off-camera. Today, however, if a soldier fires a shot and it’s on the “BBC News” that night, our political process—albeit slowly, imperfectly and often in the wrong way—begins to engage. Had there been pictures and tweets about the carnage in the autumn of 1914, how long would the war have lasted?
Here lies the second critical point. That door to the free flow of information—arguably so important to the preservation of peace—is slowly swinging shut. A drone is entirely anonymous. It needs no boots on the ground. Yet the damage it does is no less devastating than that done by the man with a machine gun. These amendments therefore are designed to shed some light on these slightly murky points. As the Prime Minister said, sunlight is the best disinfectant.
After those background comments, I turn to this first group, concerned with jurisdiction and seeking to make amendments to Clause 5, entitled “Jurisdiction of Ministry of Defence Police”. The Ministry of Defence Police Act was passed in 1987. That may seem fairly ancient—it is some 25 years old. However, it is a mere stripling in comparison to the Visiting Forces Act that we shall come to in a minute, which was passed more than half a century ago in 1952, or the status of forces agreement passed a year earlier.
Amendment 10 extends the jurisdiction of the Ministry of Defence Police by inserting after the word “hovercraft” additional words about,
“unmanned aerial systems, distributed common ground systems, ground control and other stations”,
as on the Marshalled List. The purpose of the amendment is simple. It is to ensure that drones cannot be included as a type of aircraft, and to recognise that they have an entirely separate legal distinction and terminology. The amendment selects the phrase “unmanned aerial systems” as a preferred descriptor. While I have no biblical adherence to this phrase, there is the challenge that there is no current legal definition of “aircraft” in the existing Air Navigation Order 1970; it contains only a classification.
Whatever descriptor is used, it is nevertheless important that it makes clear that a drone is not an aircraft—a word which, to the public mind at least, implies an aerial vehicle with at least one person inside it. The effect of this amendment would be that the MoD Police jurisdiction unquestionably extended to drones and the like, so they would not in future fall through the gaps in legislation to some netherworld, out of sight and mind. Amendment 11 runs in parallel and extends the power of the MoD Police to contractors operating under the provisions of the Bill—as we discussed in Committee on Monday.
To conclude, whatever one’s views of the morality or efficacy of drones, we need to ensure that the details of their operations are properly recorded and that the MoD Police are unquestionably able to investigate and follow up issues that arise. In an editorial in the Financial Times on Monday—the first day of Committee —about Edward Snowden and GCHQ, a parallel but not identical case, the editor wrote that,
“it is essential the public know that British law is up-to-date and that the checks surrounding GCHQ are proportionate and fit for the complexity of the digital age”.
These amendments seek to achieve the same in respect of the Ministry of Defence: that the law is up to date and the checks proportionate. I beg to move.
Baroness Stern (CB)
My Lords, I am very grateful to the noble Lord, Lord Hodgson, for that excellent and wide-ranging exposition. I begin by declaring an interest; I am one of the vice-chairs of the All-Party Parliamentary Group on Drones, established just over a year ago in October 2012 and very active ever since. The core purpose of the group is to examine the uses of drones—which the group decided to call “unmanned aerial vehicles”—by Governments for domestic and international military and civilian purposes. Among the objectives of the group are to examine the legal and ethical frameworks that govern the use of drones, raise awareness of the human rights issues in the use of drones and look for increased accountability and transparency in the use of drones by the United Kingdom domestically and internationally. It is in that context that, as a member of the all-party group, I put my name to these amendments.
I stress absolutely that the all-party group is not opposed to drones per se—far from it. Drones technology has many uses. I heard recently from my noble friend Lord Sandwich that drones are a godsend to archaeologists in Afghanistan because they can locate what is under the ground and pinpoint where archaeologists should dig to find more antiquities. That is a benign and helpful application of the technology. My noble friend Lord Ramsbotham—General Ramsbotham—has educated me about the indispensable role of drones on the battlefield. The APPG is concerned not with opposing drones but with transparency: ensuring that Parliament is well informed and that information about the development and use of drones is put in the public domain so that we may debate the many issues that arise.
Today, we are concerned with military use. As noble Lords will know, a large and wide-ranging law framework governs military activities and weaponry internationally and domestically. However, as the noble Lord, Lord Hodgson, said, as yet no legal definition exists of drones or unmanned aerial systems, and it is difficult to see how there can be governance of drones before they are defined. Currently they are treated by the MoD as aircraft and their special nature is ignored. This amendment gives us an opportunity to consider the terminology and make it clear that it is completely inadequate to lump drones in with aircraft.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I shall speak briefly to these amendments, to which I have added my name, because I want to spend more time on Amendments 14 to 16. What the two groups of amendments have in common is the need for accountability so that military activity or surveillance conducted from UK soil follows a legislative framework and a line of accountability through our Secretaries of State and parliamentary scrutiny committees. Such accountability is entirely lacking at the moment. I am glad that the noble Baroness, Lady Stern, set out so clearly the issues involved in this group of amendments, which I hope will allow me to spend a little more time on surveillance issues and the RIPA legislation lacuna that I want to talk about later.
Lord Dubs (Lab)
My Lords, I want briefly to add my support for these amendments and to make one point. When the visiting forces legislation and other legislation governing the use by the United States of airbases in Britain was enacted, the technology was at a very simple stage. We did not have sophisticated techniques such as drones; we did not have any of these things. The legislation was designed for a different age when things were very simple. Because they have changed so much there is a need to look again at the way in which these bases operate. That is my simple proposition.
I understand that, when questioned on this point, the Minister said:
“There is no requirement for an additional agreement regarding the use of RAF Croughton by the United States visiting forces … The Department has no plans to review this arrangement nor review the activities undertaken by the US at the base”.
The US has been a great ally of ours. We were delighted when its forces came here and we welcomed them. Their airbases in Britain helped defend us in the war and we must not forget that, but things have moved on. The problem is that activities that were fully understandable to us, and we were happy about, when these bases were first established may now be considered in a different light. We are at least entitled to have a better understanding of what goes on there and to be assured that the uses to which the bases are put are compatible with our system, our laws and our approach to using some of these very dangerous weapons.
We need to look again at this issue. I am not saying that we should close down American bases. I share the view of the noble Baroness, Lady Stern, on drones: they have their good points and they have their bad points. However, we need to be careful before we allow even the friendliest of our allies to use bases for purposes about which we do not know enough and certainly have unease.
Lord Roper (LD)
My Lords, I shall speak briefly to this group of amendments but my remarks apply also to a later group. Comments made on this issue will, inevitably, cross from one group to the other.
Many of us have benefited from the advice which the All-Party Parliamentary Group on Drones received from Jemima Stratford QC and Mr Tim Johnston of Brick Court Chambers, which is obviously of great value. However, before we look at this issue again on Report, noble Lords may find it valuable to read the very important interim report that Ben Emmerson QC delivered to the General Assembly on 18 September 2013, which not only considers the way in which remotely controlled aircraft have been used by both this country and the United States in various parts of the world but makes a detailed inquiry into the complications and difficulties of international humanitarian law. He has not come to a conclusion on these matters but his report is of considerable value in explaining the complexities and ambiguities. Members of this House would benefit from reading that report as well as Jemima Stratford’s opinion.
Lord Judd (Lab)
My Lords, I speak in support of these amendments. The point that has already been made cannot be stressed too strongly—namely, that rules, regulations and definitions that have been adequate to date need to be reviewed in view of the immense and unforeseen scale of development in modern warfare. It would be irresponsible to assume that the current rules and definitions, which were drawn up in the past, respond adequately to the new realities.
I have absolutely no doubt that the service in which I was privileged to serve, the RAF, is fully committed at the most senior levels to implementing not just what the law says but the spirit of the law. I am sure that that is the case. If it is the case, I cannot see how reviewing the sufficiency and adequacy of existing legislation can do anything but strengthen its position. It is good that these points have been brought forward.
It is very difficult to share my next point with the Committee, as it is not clear whether the issue should be raised now or on later amendments. Reference has been made to the overlap in this regard. I am deeply concerned about whether we as legislators are taking the psychological implications of the new developments seriously enough. I am sure some of those involved in the operations are taking them very seriously. If I put it crudely, it is not out of any hostility to the people concerned; it is just to try to bring home the starkness of the reality with which we are dealing.
I was talking the other day with a good friend whose son has just got a very good engineering degree. What does he want to do with his engineering degree? His ambition is to work in computer games and eventually perhaps have his own firm, I think. There has been terrific change in the nature of this kind of activity and what it can involve. I hope I will not be accused of being irresponsibly sensational, because it does not seem to me that it is irresponsibly sensational at all. It is taking into account the realities of life. When did we begin to drift into a situation where the mental and psychological processes about playing very advanced computer games and the processes of sitting in the Nevada desert, or wherever it is, operating a machine became blurred? How do we continue to take, as we have always tried to take, the responsibility of recognising that war is a last resort and a very grave step to take? How do we now undertake warfare in the context of all sorts of humanitarian obligations and the rest? The Geneva conventions are just one example. I think that for all these reasons there has been a certain degree of complacency among legislators about what is happening and its significance, and I am sure that it is time that this was reviewed. I cannot stress strongly enough my appreciation of those who have brought this amendment forward.
Lord Palmer of Childs Hill (LD)
My Lords, I thank my noble friend Lord Hodgson for bringing this amendment forward because it is clear in my mind that your Lordships’ House needs to have a debate on this subject, not just in the APPG but elsewhere. What I am not so happy with is the amendment to Clause 5. The real problem seems to be that we do not debate defence Bills very often in your Lordships’ House and there are very few places one can table an amendment such as this and the other amendment in this group. I therefore appreciate why it is here. However, the noble Baroness, Lady Stern, said drones are treated as aircraft. Clause 5, which relates to the jurisdiction of the Ministry of Defence Police, refers to aircraft and hovercraft, so if a drone is an aircraft, it is in. At the moment, it is not, so perhaps we need some clarification on that, because definitions are important.
A good point was made about unmanned aerial systems, because it is almost giving them a respectable name. The public know the name “drones”, and we now seem to have tried to find a longer, more convoluted phrase. I think a spade should be called a spade. If it is a drone, it is drone. I wonder whether there is a problem.
The real problem as far as the public and the noble Lord, Lord Judd, are concerned is the collateral damage when drones are used. Oversight is essential, but the worry in international legislation at the moment is that if someone in Texas, or maybe Nevada, is operating them, will they be harassed if an error happens? I suppose errors should not happen. President Obama announced changes in the drone programme in May 2013, which has been welcome because it has reduced the number of deaths caused by drone strikes.
Lord Stirrup (CB)
My Lords, I welcome the opportunity to register a few points regarding some of the things that have been said in this Committee.
As currently used by UK Armed Forces, “drones” are not drones but unmanned aerial systems. They are not in any way autonomous. I should point out that I have no objection whatever to a further exploration of the use of these systems, their implications and the regulatory framework around them. That would be welcome, provided we do it with a clear eye, although I do not see the necessity for these amendments.
However, if we are to have this kind of debate, we need to be clear on a few things. The first is that we should differentiate between systems and outcomes. The legal framework for the use of armed force within the UK is essentially about the outcomes that people are allowed to inflict on others, not the systems that they use for those outcomes. If you think in terms of the unmanned aerial systems that we currently use, there is little, if any, difference between someone piloting the system from within a cabin on an airbase somewhere—looking into a screen in that cabin, making the decision about whether to engage a target and then firing a weapon—and someone doing exactly the same thing from the cockpit of an aircraft at 20,000 feet or 30,000 feet. In fact, the only real difference is that the person on the ground is likely to make better decisions because he is looking at a bigger screen, with greater definition, he will be able to see more detail of the target area, and he will be in a better position to avoid collateral damage.
My second point is that today and in the future, before any clearance is given for a target to be engaged by the UK Armed Forces, two questions inevitably have to be answered. The first is: is it legal? That, as we have all heard, can be a difficult issue, particularly in the area of international law, and it is sometimes clear that we would reach different conclusions on that matter from those of some of our allies. That remains an issue. The second question is: is it wise? Does it actually further your strategic objectives or does it hinder them? As we have heard in this Room, and I agree, these systems have in some circumstances been used unwisely in terms of furthering one’s strategic objectives. However, we should be clear in distinguishing between the two. In attacks on targets by US systems that are operating from—or with the support of—the UK, the situation is clear. Such attacks require clearance from the UK as well as from the United States targeting authorities. Having been in this position, I can assure your Lordships that that happens every time, even when it means waking up the Attorney-General, night after night, at 4 am, as certainly happened in my experience.
The other point on which it is important to be clear is that unmanned systems are not—and certainly will not be in future—constrained merely to the air. They will operate on the surface of the land and sea, and under the sea. If we are to undertake any kind of debate and exploration of these issues, let it be about the widest possible use of these systems and not just focus on unmanned aerial systems—or “drones”, as they are incorrectly called.
Finally, if we are to have this debate, the most important element is that of autonomy—already exposed to some degree in the debate today. As far as I am concerned, all the while that someone in the loop makes a decision about the legality and military utility of the target being attacked, the current framework is secure and will save us. When you introduce degrees of autonomy into the system—decision-making within the system itself as opposed to leaving it with a human in the loop—of course you introduce a degree of risk into the whole process. That is not something that happens at the moment, but it could happen in future and it is where the focus of our attention should lie.
I welcome the debate. I have no concerns about the ways in which these systems are used by the UK at the moment but it is something we should certainly look at for the future. However, I do not see the necessity for these amendments in this particular Bill.
Lord Roper
Perhaps I might just ask the noble and gallant Lord one question. In the report by Ben Emmerson that I quoted there is a reference to the way the United Kingdom considers targeting intelligence. It says:
“The United Kingdom has informed the Special Rapporteur that during its operations in Afghanistan targeting intelligence is ‘thoroughly scrubbed’ to ensure accuracy before authorization to proceed is given”.
Could the noble and gallant Lord explain to those of us who are not so well informed how one “scrubs” intelligence?
Lord Stirrup
First, one has to decide upon the reliability of the intelligence, because intelligence is not knowledge—there is no certainty about it. What degree of assuredness can we attach to the intelligence? What sort of cross-referencing is there? Then, everything else about the target—its structure, the things around it, the possibilities of collateral damage and all the issues properly raised under the law of armed conflict; that is, the military utility of attacking the target versus the possible risks of doing so—is gone into at great length. Certainly as far as the United Kingdom—and, in my experience, the United States—is concerned, it is done with a lawyer looking over one’s shoulder the whole time. When I was responsible for these sorts of targeting decisions in the five months after 9/11 when I was at United States Central Command, my lawyer and I were essentially joined at the hip. It had to be so and I welcomed it.
Lord Dannatt (CB)
My Lords, I identify with the comments of my noble and gallant friend. He made many of the points I would otherwise have made. I share his scepticism here. I understand the purpose behind these amendments but I have some concern about seeing them included in a Bill such as this at the present time. On the other hand, I very much welcome the debate on the wider subject.
I just amplify one of the points made by my noble and gallant friend. In the popular mind, so-called “drones”, or “unmanned aerial systems” or “unmanned aerial vehicles”—the name professionally and technically which we have used for many years—are large and operate over great distances. However, within the same overall category come small battlefield UAVs. Some are small enough to be able to look over a hill into a valley beyond and report back to a ground tactical commander. There are reconnaissance and weapons-deploying issues here, and issues of large and small size. Because of that complexity, the issue definitely merits further investigation and debate, with the formation of a wide-ranging piece of legislation dealing with definitions and bringing the whole into a proper regulatory format. For that reason alone, while I recognise the intent behind the amendments, this should be taken forward in a somewhat different way.
Lord Rosser (Lab)
My Lords, I will be very brief indeed. Obviously, views have been expressed about keeping the law and its enforcement up to date with developments in the nature and conduct of warfare. Also, at the back of what has been said there is a desire to know what is going on in our name and what the outcomes have been in relation to the use of some of the unmanned systems to which reference has been made. Certainly I await with interest the Minister’s response.
There seems to have been a general acceptance that this is an issue which should be debated and discussed, although obviously doubts have been raised as to whether, as far as the amendment is concerned, how relevant it is to this Bill. The only comment I would make before concluding and leaving it to the Minister to give the Government’s response is that, of course, as far as concerns the provision of any additional information that there may be, or any developments in the law, whatever is done must be consistent with the national interest and national security.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, I am grateful to my noble friends Lord Hodgson and Lady Miller, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, for tabling the two amendments in this group. It has enabled us to have a useful and interesting debate about a number of important issues. The Defence Reform Bill deals with the future arrangements for defence procurement and the Reserve Forces, and I think it is fair to say that the debate on these amendments has drifted some way from those issues—a point made by my noble friend. In responding to them, I will try to address the specific effect of the amendments on Part 1 of the Bill, but I shall also set out more widely our position on some of the other issues that have been raised.
Before turning to the detail of the amendments, it might be helpful if I set out the UK Government’s policy on unmanned aircraft systems. I think it is important to use the correct terminology when discussing unmanned aircraft systems, or UASs. The term “drone” is often used, but the word evokes thoughts and images of computer-controlled machines free from human oversight, which is simply not the case. The term “unmanned air vehicle” had previously been used extensively in the UK, but it is no longer aligned with NATO or international thinking, and in the interests of interoperability we have now moved away from using it. Often, the actual level of human involvement is unclear when discussing unmanned aircraft systems and hence it is entirely appropriate that the term “remotely piloted aircraft system”, or RPAS, is also used as it emphasises the reality that a trained professional pilot is in control of the system. UAS and RPAS are the generic terms that define the totality of the components of an unmanned or remotely piloted aircraft together with the other necessary components, including all equipment networks and, most important, personnel.
The UK operates a range of these human-controlled systems principally for surveillance and reconnaissance purposes. There is often a misconception that remotely piloted aircraft systems are autonomous. Again, we have to be careful with the terminology as the word “autonomous” can mean different things to different people and organisations. The Government consider an autonomous system as being capable of understanding high-level intent, a system that is capable of deciding a course of action from a number of alternatives without depending on human oversight or control. Our current and future RPAS will not be autonomous. A military pilot will continue to remain in control of our armed systems, just as they are now. In fact, our current armed RPASs have greater human involvement than our other armed aircraft types. Our Reaper RPAS crews comprise highly-trained pilots, sensor operators and analysts who all make decisions in real time.
The UK currently deploys unmanned aircraft systems in support of operations in Afghanistan and of Royal Navy ships. These systems are predominantly used for intelligence, surveillance and reconnaissance tasks, providing vital intelligence in support of our troops on the ground and our sailors at sea. They provide persistent video imagery for the development of situational awareness in order to conduct planning and to protect our forces. While the sensors are broadly similar to those onboard conventionally manned aircraft, unmanned or remotely piloted aircraft systems have the ability to loiter for longer, building an intelligence picture that significantly enhances the situational awareness of our commanders.
Lord Judd
As usual, the Minister has been extremely helpful and courteous, but I hope that he will say a word more about a couple of points. First, he stressed the present policy of the UK Government on autonomous weapons. If that is the case, is there not a strong case for establishing this principle somewhere in legislation, if not in this Bill? When war takes place the situation evolves, the pressures are great, and one wants to be certain that established principles continue to be observed. Secondly, will he assure us that when he talks about US forces and what they do and do not do—those forces that operate from our territory—in future any foreign services using our territory must give a firm undertaking, with which we must be satisfied, that they will abide by the same principles that the Government have in place at the moment?
Lord Astor of Hever
My Lords, we will cover the noble Lord’s second point when we discuss later amendments and I think that I can give him an assurance on that when we discuss the later amendments. As regards his first point, this Bill is not an appropriate vehicle for the issue. He raises a very important point, but there is no need for additional laws. The existing ones are sufficient.
Lord Hodgson of Astley Abbotts
My Lords, I thank my noble friend for his characteristically thorough reply to the points made and I thank my co-signatories for their support. I emphasise to my noble friend that I do not think any of the signatories are against drones. We understand that they are valuable and we do not wish to expose the lives of soldiers, sailors and airmen to unnecessary risk. However, we want to know what is going on. Of course we understand that every effort is made to avoid casualties. This is not a trigger-happy amendment; it is about information, control and transparency. I was glad to hear that my noble friend’s legal advice is that the term “vehicles and aircraft” covers every aspect of drones and there is therefore no gap in this regard. It is important to have that on the record for the future.
I am grateful to my noble friend Lord Roper for drawing attention to some of the complexities of this issue and to the noble Lord, Lord Judd, for his important comments about dispassion. Some element of personal responsibility may become deadened by distance from the point at which the operation is taking place. The noble Lord, Lord Palmer of Childs Hill, very rightly said that this was not the appropriate place for the amendment. He is right, but when the bus comes along you get on board because who knows when the next bus will come along. As he rightly said, there are very few defence Bills and it is important for us to have a chance to debate things that have emerged since the previous occasion.
Lord Craig of Radley
“Immunity for contractor
(1) The Secretary of State may by Order made under section 2 of the Crown Proceedings (Armed Forces) Act 1987 revive section 10 of the Crown Proceedings Act 1947 for the purposes of providing immunity for a contractor.
(2) Before making an order in accordance with the provisions of this section, the Secretary of State shall publish and lay before Parliament a report on the impact of making such an order on—
(a) the procurement of defence equipment and modifications and training facilities including material for urgent operational requirements; and(b) the possibility of risk to the contractor of challenge, whether under the Human Rights Act 1998 or under any other statutory provision, arising from such procurement, whether at the time of the procurement or at any future date.”
Lord Craig of Radley (CB)
The House has debated the issue of Crown and combat immunity a number of times in the past eight months. The Minister has shared with the House concerns that the MoD and the Government have about problems raised by legal challenges of decisions made in the heat of battle or of decisions made in the past about equipment, training or preparations for operations in which, regrettably, individuals have been killed or seriously injured. In the debate on 7 November last, the Minister said that,
“the Ministry of Defence has been grappling with rapidly increasing numbers of legal claims arising from operations, together with escalating costs, largely as a result of these legal developments and the increasing willingness of individuals to litigate”.—[Official Report, 7/11/13; col. 413.]
He rightly stressed that no intention to reinstate any form of Crown or combat immunity should affect any cases already started, and nothing that I say or propose is directed at affecting such claims.
My particular reason for raising the issue of contractor immunity is straightforward. The experience of the past few years, particularly but not solely in the shadow of the Iraq and Afghan operations, is that courts and coroners have taken to raising issues about the suitability or modification states of equipment. I said at Second Reading:
“My fear is that this legal probing, basking in the certainty of 20:20 hindsight, will extend to questioning why original designs or modifications which subsequently proved unable to match the opposition’s capability were allowed to persist or be deployed or, alternatively, why additional steps had not been approved though the technical capability existed. Such concerns should be borne in mind in any changes to responsibility for defence procurement. Indeed, they should add further stimulus to taking positive action to reinstate immunities in a field of activity where acceptance of risk to life has to be the norm if our forces are not to be gravely neutered by legal hindsight”.—[Official Report, 10/12/13; col. 757.]
My amendment is designed to probe the case of contractor immunity and how and to what extent it might be applied. It proposes one particular approach but I do not suggest that it is the only or necessarily the most appropriate one. The Committee will have noted that Clause 3 would appear to provide a company that is or has been a contractor with unlimited MoD cover for any financial claim that is brought in a court in the UK against the company. However, this immunity is circumscribed by requirements in subsections (6) and (8) of this clause. Bearing in mind the frequency of claims and findings involving defence contractors, it seems that this sweeping, broad-brush approach should be further considered in the light of current experience. Would it not give rise to a good deal of cross-claims—no doubt of value to the lawyers involved—between the MoD and the delinquent company, possibly at considerable additional expense to the taxpayer and the Defence vote?
My probing amendment considers an issue of immunity away from the immediate battlefield—the clear domain of combat immunity—in an area of defence activity, notably procurement, that has led or might lead to legal claims by those injured while on duty or by the families of deceased service personnel. The Minister will recall in the case of the loss of RAF Nimrod XV230 in Afghanistan in 2006 that the review found that a number of individuals, including those in service, civilians and contractors, had been so seriously at fault as to bear responsibility for the technical failure that caused the loss of the aircraft and all those on board. Other more recent examples of aircraft accidents will be known to the Minister and other noble Lords, where the absence or incorrect fitting of specific equipment contributed to disaster. The coroner’s findings in the tragic death of a Red Arrow pilot, reported in the past week, is one of these.
With Crown immunity available to the MoD, as it was through much of my service career, service personnel or their families were entitled to compensation judged by the criteria that unless the MoD could prove that the injury or death was not due to service, the set rate of compensation would be awarded. This approach to proof was overturned by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005. Now it must first be established that the injured or deceased were on duty at the relevant time before they are considered for any award or compensation.
This is a fundamental change in the burden of proof, in a climate where awards in civilian life appear to far outstrip those available to the Armed Forces. The Committee may recall the case of the typist with repetitive strain syndrome being awarded a couple of hundred thousand pounds in compensation. This has led to a growing number of claims being faced by the MoD in the recent past. Of course comparisons with civil awards can be misleading because in addition to a capital sum, guaranteed income payments, tax-free for life, may be awarded to those service men or women who are most seriously injured. Even allowing for that and for less extreme levels of civilian awards and for the recent increases in compensation for the most seriously injured service personnel, it is still the case that without court actions, service awards do not come close to matching those awarded to civilians. Excessive reliance is placed on the additional support of service charities. It is no wonder, therefore, that there has been an increase in claims against the Ministry of Defence. These might have been even greater if I, with the help of Lord Morris of Manchester, had not tabled and moved an annulment Motion to the Transfer of Tribunal Functions Order 2008, which persuaded the then Government to retain rather than abolish the dedicated tribunal that adjudicates on pension and compensation disputes for Armed Forces personnel.
For these reasons, I urge the MoD to be sure to put in place more representative entitlements if they go down the route I am proposing of providing immunity for the contractor in a GOCO set-up. At the heart of this is the fact that the training and operations of the Armed Forces cannot be totally risk free. Immunity coupled with more representative compensation where death or serious injury occurs is a better compromise. But because Crown immunity is now so circumscribed by statute in the Crown Proceedings Acts mentioned in the amendment, I have proposed a possible way forward if the concept of some specific contract immunity were to be favoured. Perhaps there is a better alternative, and I look forward to the Minister’s response. I hope that he will at least be able to reassure the Committee that the Government mind is not closed to the reintroduction of immunities at some future date in a manner that caters for both peacetime and conflict operations. The Armed Services Act renewal in 2016 would seem to be the right vehicle for making such a move. I look to the Minister for some reassurance on that since it could prove to be a more comprehensive approach than the one in this probing amendment. I beg to move.
Lord Astor of Hever
My Lords, I thank the noble and gallant Lord, Lord Craig, for his amendment. It enables the Committee to consider this important issue, which he also raised at Second Reading. Although the amendment appears to be addressed at giving the GOCO contractor immunity from liability for mistakes, I believe that the real intent behind it is to debate the important issue of combat immunity so far as it concerns our own service personnel. The noble and gallant Lord is absolutely right to identify the matter as one with profound implications for the conduct of military affairs in the future.
With that in mind, let me start by saying something about the recent Supreme Court case known as Smith (No 2). The outcome of the Supreme Court case in the conjoined cases of Smith and others v MoD, Ellis v MoD, and Allbutt and others v MoD has created a new situation of which the implications are not yet clear. These are all tragic cases of deaths on the field of combat in Iraq. The Government have every sympathy with the claimants but are obliged to defend these claims on important grounds of legal principle. Briefly, the argument of the claimants is that while these tragic incidents did indeed take place in the course of combat, combat immunity should not apply because the incidents can be traced back to previous decisions about the provision of equipment and training to the soldiers which could, they argue, have protected them more effectively.
The Government are concerned that this argument could be applied to virtually any claim to which the principle of combat immunity has hitherto been understood to apply and if accepted could have the effect of opening up the conduct of combat to the scrutiny of the courts after the event. This in turn could have seriously debilitating effects on the decision-making of commanders on the ground which could in the long run seriously impair this country’s military effectiveness. They therefore sought to have the claims dismissed by the courts on the grounds that combat immunity applied. As the Committee is aware, the Supreme Court declined to do so. This leaves the claims to be decided by the lower courts after a full trial in each case. Ministers and the military chain of command have been clear that commanders and other military personnel, at whatever level, who make reasonable decisions in good faith in the course of operations will receive the full backing of the services and the Government. It is important to be clear that there has been no decision by the courts that would suggest that they would impose liability in such circumstances.
Lord Craig of Radley
I thank the Minister for responding. I am sorry that there was less interest in this matter than I thought the Committee might have taken. Nevertheless, the points that the Minister made are extremely important and will, I am sure, be read by many. There is no doubt in my mind that leaving the situation as it is is asking for further trouble. I hope that that point is well and truly taken on board in the Ministry of Defence. At this stage, I beg leave to withdraw the amendment.
Lord Rosser
“Information to which Schedule applies1 (1) This Schedule applies to information if—
(a) it was obtained by the Secretary of State or the contractor under or by virtue of this Part or otherwise in connection with the carrying out of functions under or by virtue of this Part, or is derived to any extent from information that was so obtained, and(b) it relates to the affairs of an individual or to a particular business.(2) Information ceases to be information to which this Schedule applies—
(a) in the case of information relating to the affairs of an individual, when the individual dies, and(b) in the case of information relating to a particular business, on the earlier of—(i) the day on which the business ceases to be carried on, and(ii) the end of the period of 30 years beginning with the date on which the information was obtained by the Secretary of State or the contractor.Offence of disclosing information2 (1) A person commits an offence if—
(a) the person discloses information, or(b) information is disclosed or lost as a result of the person’s failure to prevent the disclosure or loss through measures taken under sub-paragraph (2), and(c) it is information to which this Schedule applies.(2) A person holding information to which this Schedule applies must take adequate technical and organisational measures against unauthorised or unlawful disclosure of, and against accidental loss of, the information.
(3) Sub-paragraph (1) is subject to paragraphs 4 to 6.
(4) A person who is guilty of an offence under sub-paragraph (1) is liable—
(a) on summary conviction, to imprisonment for not more than 12 months or to a fine not exceeding the statutory maximum (or both), or(b) on conviction on indictment, to imprisonment for not more than two years or to a fine (or both).(5) The reference in sub-paragraph (4)(a) to 12 months is to be read as a reference to 6 months—
(a) in its application to England and Wales in relation to an offence committed before the date on which section 154(1) of the Criminal Justice Act 2003 comes into force, and (b) in its application to Northern Ireland.(6) If section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force on or before the day on which this Act is passed—
(a) Section 85 of that Act (removal of limit on certain fines on conviction by magistrates’ court) applies in relation to an offence under sub-paragraph (1) on and after that day as if it were a relevant offence (as defined in section 85(3) of that Act), and (b) regulations described in section 85(11) of that Act may amend, repeal or otherwise modify sub-paragraph (43)(a).Disclosure with consent3 (1) Paragraph 2(1) does not apply to a disclosure made with the consent of—
(a) the individual, or(b) the person for the time being carrying on the business (or, where there are two or more such persons, all those persons).Disclosure of information already available to public4 Paragraph 2(1) does not apply to information that has been made available to the public by being lawfully disclosed in circumstances in which, or for a purpose for which, disclosure is not precluded by this Schedule.
Other permitted disclosures5 (1) Paragraph 2(1) does not apply where information is disclosed—
(a) for the purpose of facilitating the carrying out of functions of a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975),(b) for the purpose of facilitating the carrying out by the SSRO of any of its functions,(c) for the purpose of enabling or assisting an authorised person to carry out any of its functions,(d) for the purpose of enabling or assisting a contractor to provide defence procurement services to the Secretary of State by virtue of arrangements mentioned in section 1,(e) to the person from whom the information was obtained or, where that person is associated with one or more other persons, to any such associated person,(f) by a person to whom the information is disclosed by virtue of paragraph (e),(g) under the Freedom of Information Act 2000 where there is a requirement to disclose notwithstanding available defences,(h) in connection with the investigation of a criminal offence or for the purposes of criminal proceedings,(i) for the purposes of civil proceedings,(j) in pursuance of an EU obligation, (k) for the purpose of facilitating the carrying out by the Comptroller and Auditor General of functions, or(l) in anonymised form.(2) In sub-paragraph (1)(d), “contractor” and “defence procurement services” have the same meanings as in Part 1.
(3) For the purposes of sub-paragraph (1)(l), information is disclosed in anonymised form if no individual or other person to whom the information relates can be identified from it.
(4) For the purposes of sub-paragraph (1), disclosures under paragraph 5(1)(a) to (d) and paragraph 5(1)(h) to (k) must be strictly necessary for the purpose, made in confidence and paragraph 2(1) applies to the recipient of that disclosure.
(5) Prior to making a disclosure under paragraph 5(1)(a) to (d) or paragraph 5(1)(h) to (k), the individual or business to which the information relates must be notified of the intended disclosure and must have the opportunity to challenge that disclosure.
Power to prohibit disclosure6 (1) The Secretary of State may by order—
(a) prohibit the disclosure of information to which this Schedule applies;(b) provide that a prohibition imposed by virtue of paragraph (a) is subject to exceptions corresponding to those set out in paragraphs 3 to 5 (other than paragraph 5(1)(g));(c) provide that a person who discloses information in contravention of such a prohibition commits an offence punishable— (i) on summary conviction, with imprisonment for not more than 12 months or with a fine not exceeding the statutory maximum (or both), or(ii) on conviction on indictment, with imprisonment for not more than two years or with a fine (or both).(2) The reference in sub-paragraph (1)(c)(i) to 12 months is to be read as a reference to six months—
(a) in its application to England and Wales in relation to an offence committed before the date on which section 154(1) of the Criminal Justice Act 2003 comes into force, and (b) in its application to Northern Ireland.(3) An order under sub-paragraph (1) may repeal paragraphs 2 to 5.
(4) If section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force on or before the day on which this Act is passed—
(a) section 85 of that Act (removal of limit on certain fines on conviction by magistrates’ court) applies in relation to the power under sub-paragraph (1)(c)(i) on or after that day as if it were a relevant power (as defined in section 85(3) of that Act), and(b) regulations described in section 85(11) of that Act may amend, repeal or otherwise modify sub-paragraph (1)(c)(i).(5) An order under sub-paragraph (1) is to be made by statutory instrument.
(6) A statutory instrument containing an order under sub-paragraph (1) may not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
Authority to inspect measures to protect information7 (1) A person holding information to which this Schedule applies must permit an industry body, acting on behalf of the owner of that information, within six months of the relevant date and subsequently every three years, on reasonable prior written notice and on reasonable confidentiality and other undertakings, to audit and inspect the person’s technical and organisational measures for protecting that information in compliance with this Schedule.
(2) A person holding information to which this Schedule applies must comply with all reasonable requests or directions by the industry body to enable the industry body to verify that the person is in compliance with their obligations under this Schedule.
(3) The industry body must provide a report of its findings on each inspection to the Secretary of State within three months of that inspection. The industry body may publish each report within six months of that inspection and must include with each report any response made by the Secretary of State to that report.”
Lord Rosser
Schedule 2 is referred to in Clause 7 which is very brief and simply states:
“Schedule 2 (restrictions on disclosure or use of information) has effect”.
It is in Part 1, which deals with defence procurement. Clause 38, in Part 2, which deals with single-source contracts, is similarly brief and simply says:
“Schedule 5 contains provision about disclosure of information obtained under this Part”.
In essence, the purpose of this amendment is to seek to replicate, in respect of disclosure of information, the criminal offence provision contained in Part 2 and Schedule 5 on single-source contracts in Part 1 and Schedule 2 in respect of defence procurement. In paragraphs 4 and 5 of Schedule 2, references are made to “unauthorised disclosure” and “unauthorised use” of information but there is no reference to any penalties or implications for disclosing or using protected information. However, in Schedule 5, which relates to wrong disclosure of information obtained under Part 2, on single-source contracts, there is a reference to penalties of imprisonment or a fine.
We do not understand why there is this distinction on unauthorised disclosure of information between Part 1 and Part 2. It is our view that failure to protect protected information from disclosure should be an offence with laid-down penalties. We appreciate the purpose of Schedule 2 in enabling a GOCO to be given confidential information provided by defence suppliers and held currently by DE&S in order to take over the management of existing MoD contracts should a GOCO come into operation.
The Government’s argument for not putting the penalties in Schedule 5 for misuse of confidential information into Schedule 2 appears to be that the Official Secrets Act, along with the GOCO contract itself and the constraints of Schedule 2, will give confidential information given to the GOCO the same protection from disclosure as it has in DE&S today. If there was a misuse of information, the owner of that information could bring an action directly against the GOCO as it can at present against the Ministry of Defence. However, that raises the obvious question of why similar arrangements are not proposed by the Government in Schedule 5 in relation to disclosures of information in respect of single-source contracts.
The information covered under Schedule 2 will include private and commercially sensitive information to which the Ministry of Defence has been given access, outside of a contractual obligation, in circumstances where the owner has a reasonable expectation that the MoD would hold it in confidence and not disclose it to a third party—which, under a GOCO, might be regarded by the owner of the information as including companies that either had been, or might be in the future, competitor organisations.
The Government say that it is not appropriate for a criminal offence to be created for the disclosure of information acquired in the normal course of defence procurement on individual projects and programmes, but that a criminal offence of the disclosure of confidential information provided to the Single Source Regulations Office is justified because the information is highly detailed supplier information and is forward-looking, covering future financial performance, anticipated business plans and planned subcontracting activity.
If that is the argument the Government are going to advance again today, I remain to be convinced by it. Sections of the defence industry have certainly expressed concerns about the prospect of disclosure of their confidential information that would be provided to a GOCO operator in respect of defence procurement contracts and believe that firm penalties are needed to deter such activity. The Government’s argument may be that the information that would have to be provided in respect of single-source contracts is likely to be more commercially sensitive, and thus potentially more damaging if disclosed, than the information provided under defence procurement contracts. However, surely that is something that should be reflected in the decision on whether to prosecute and through any decision of a court on the level of the penalty to be imposed rather than by, as the Government propose, having no provision for any criminal sanction at all in Schedule 2. I beg to move.
Lord Astor of Hever
My Lords, Schedule 2 in its current form is necessary to allow a GOCO to have access to existing confidential information provided by defence suppliers that is held by DE&S so that the GOCO can take over management of existing MoD contracts. If the GOCO does not have access to that information, it will seriously curtail the contracts that GOCO will be able to manage. It will not be able to manage contracts that involve the need to access confidential information provided by a supplier. If the MoD provides confidential information from existing programmes to the GOCO without the protection conveyed by Schedule 2 in its current form, the supplier of the confidential information may claim that the MoD has no legal right to do so. The MoD could seek to negotiate amendments to contracts or obtain licences to supply the necessary information to the GOCO; however, the volume of information concerned, the amount of time and resources required to undertake the negotiations, the costs in licence fees that may be incurred and the possibility of the owner refusing mean that this is not a practical proposition.
Schedule 2 as currently drafted provides protection for owners of confidential information because there are only limited circumstances—essentially where necessary or expedient for defence procurement—when the MoD can share the information with the GOCO. Schedule 2 also provides that the GOCO is then subject to the same confidentiality obligations as the MoD. For example, some of the information the GOCO has will be classified as “UK eyes only”, the classification applied to certain information that cannot be shared with non-UK nationals due to national security issues. The GOCO would not be able to share this information with any employee or parent company that does not meet the nationality requirements.
If the GOCO misuses the confidential information, the owner can bring an action directly against the GOCO in the same manner as it could have done if the MoD had misused the information. This is in addition to confidentiality obligations that the MoD will place on the GOCO through the management services contract. The GOCO will be contractually required to maintain the confidentiality of supplier information and not to disclose it to third parties without the permission of the MoD. The GOCO’s parent companies will be third parties, so the GOCO will not be able to disclose the information to them without the MoD’s permission. The Official Secrets Act will also apply to the GOCO and its staff. The information will therefore receive essentially the same protection from disclosure as it does in DE&S today.
The proposed amendment to Schedule 2 involves deleting the existing schedule in its entirety and replacing it by what is largely a replication of paragraph 2 of Schedule 5, which creates an offence of disclosure of confidential information provided to the Single Source Regulations Office. The creation of such an offence is reasonable in the context where the information is highly detailed supplier information that will be received under the single-source pricing regulations and which suppliers are required to provide by statute. However, the situation is very different from the GOCO situation, and it is not appropriate for a criminal offence to be created for the disclosure of information acquired in the normal course of defence procurement on individual projects and programmes, where any confidentiality is capable of being protected by the GOCO contract coupled with the Schedule 2 constraints. We do not want to create new offences unless it is absolutely necessary to do so. The single-source provisions cover a supplier’s future financial performance, anticipated business plans and planned subcontracting activity. It is highly unusual for the MoD to receive access to information covered by Schedule 5. The offence and tariff proposed is consistent with that applied to other price-regulated industries such as water, utilities, telecommunications and railways. It is not appropriate to day-to-day defence procurement business, which is best conducted as a commercial relationship between the MoD and suppliers.
The new statutory framework outlined in Part 2 has been designed to help ensure that we get value for money on an average £6 billion a year of single-source procurement. Our single-source suppliers can price in the knowledge that they will not be undercut by a competitor—a highly unusual position, and one that is not conducive to getting good value for money. We need to address this, and to do so we need information about a supplier’s actual costs.
Lord Rosser
The arguments that the Minister has advanced in respect of this amendment are the ones that I indicated—fairly accurately—he would advance. I said earlier that I was unconvinced by them, and that remains my position.
Disclosure of information will be a serious matter under Schedule 2, as well as under Schedule 5. Frankly, if wrongful disclosure of information is going to become an issue under Schedule 2, it will begin to strike at the heart of confidence in the arrangements that the Government wish to proceed with in relation to the GOCO. Sections of the defence industry have certainly expressed their concerns about the prospect of disclosure of their confidential information that would be provided under the GOCO arrangements. Unlike the Government, they believe that firm penalties are needed to deter such activity.
I really do not think I have had an explanation of why the arrangements will be satisfactory and deter people from disclosing arrangements under Schedule 2 without any penalties, but those similar arrangements would apparently not be effective if they were included under Schedule 5 in relation to single-source contracts. The main difference to which the Minister has drawn attention is the view that the kind of information that might be wrongly disclosed in relation to single-source contracts would be far more damaging than the kind of information that might be disclosed in relation to defence procurement contracts under Schedule 2. Many in the defence industry think that the kind of information that could be disclosed under Schedule 2 could be extremely damaging to them and do not share the view that only information disclosed under Schedule 5 in relation to single-source contracts could have that effect.
I said in my contribution that I have not had a specific response to that issue. I said that if the Government’s argument was that the information that would have to be provided in relation to single-source contracts was likely to be more commercially sensitive and thus potentially more damaging if disclosed than information provided under defence procurement contracts, then surely that should be dealt with in the decision on whether or not to prosecute—and if there was a prosecution, reflected in the sentence that the court imposed—rather than taking the Government’s view that we will not put any criminal sanction into Schedule 2.
The Minister said that the Government do not think it is appropriate to have a criminal sanction for disclosure of information under Schedule 2. I appreciate that the Minister feels that the Government have given a convincing explanation for that. However, I do not. The Minister indicated what is at the heart of the Government’s decision when he said, “We, as a Government, do not want to keep creating more criminal offences”. That has been the main factor in making this decision. There is an overall reluctance to create more criminal offences, rather than saying that wrongful disclosure of information is a serious matter even under Schedule 2 and that there should be provision for a criminal sanction in Schedule 2 as well as in Schedule 5.
There is obviously a disagreement and difference of view between the Government and the Opposition. I shall withdraw the amendment but we may wish to pursue the matter at a later stage.
“Reporting obligationsReporting obligation on contractors
In providing any defence procurement services, the contractor shall—(a) report annually to the Secretary of State or at any more frequent intervals as the Secretary of State may specify on—procured under the arrangements set out in section 1; and(i) the technical characteristics;(ii) capabilities; and(iii) use of equipment and services,procured under the arrangements set out in section 1; and(b) ensure that any person who provides provision of goods or services to a contractor or to the Secretary of State for the purposes of DE&S pursuant to the arrangements set out in section 1 provides the contractor with all information necessary to carry out the contractor’s reporting obligation under paragraph (a).”
Lord Hodgson of Astley Abbotts
My Lords, I shall speak also to Amendments 15 and 16. The background to this group is the same as that for the first group, Amendments 10 and 11, and I shall not weary the Committee by repeating it. Amendments 10 and 11 were concerned primarily with jurisdiction—who is entitled to inquire; the second group is concerned with scrutiny—what is done with the information so gathered. This scrutiny will be achieved by inserting new clauses into the Bill.
Amendment 14 obliges contractors to inform the Secretary of State for Defence what procured goods and services are capable of and how they are being used. The amendment has been drafted to ensure that the reporting obligation will automatically broaden to cover any new technological developments in the future. We have heard from noble and gallant Lords about the various kinds of drones—surveillance drones, attack drones and drones that will fight other drones that are now being developed. It is important that the reportage also includes them.
Amendment 15 seeks to improve scrutiny. It does so in two ways: first, it inserts a new section into the Visiting Forces Act 1952 to create a mechanism for scrutinising overseas forces operating in the UK or within UK-operated facilities. The amendment includes a requirement for the RAF commander responsible for liaison with visiting forces to report at least annually to the Secretary of State and a list of factors which are to be reported upon.
It is worth while just to reflect on the position of the luckless RAF commander responsible for liaison. For a sterling officer to be the nut in the crackers—one side of the crackers being GCHQ and the UK Government, and the other being the US Government, the CIA and the National Security Agency—is an unenviable position to be in, and not a career-enhancing one if you are going to rock the boat and possibly say things that will be unpopular. Therefore, his position is very difficult, but that is by the by. However, we were tempted to buttress his position by defining the makeup of the scrutiny group to include, as it says, a member holding high judicial office—such as a judge—and a person who is capable of understanding the technology being used. The amendment defines the right of access to premises, to receive documents or to interview personnel in pursuance of the committee’s duties.
The second method by which this amendment improves scrutiny is by imposing a duty on the Interception of Communications Commissioner to report at least annually on any activity subject to the Regulation of Investigatory Powers Act 2000—RIPA. My noble friend Lady Miller has put down and had answers to a number of parliamentary questions on this particular topic, so I will leave the field clear for her to have a clean sweep in a minute or two.
Finally, Amendment 16 concerns the use to which these reports should be put. A copy of them should be laid—no doubt with redactions—before Parliament, a copy of reports, hopefully without redactions, should be laid before the Intelligence and Security Committee, and there would be a government response to any concerns raised in those reports.
Taken as a whole, these amendments are not designed to reveal details injurious to our national security or that of our allies. I recognise the delicate balance that needs to be struck in that regard. However, they are designed to ensure that at least the Secretary of State for Defence knows what is taking place in the far-flung corners of his empire. From press conferences, it is far from clear about whether he is currently being so informed. As a consequence of these amendments, the Secretary of State will be able to judge whether actions are taking place either as a result of the use of UK facilities or as the result of the transmission of information through UK facilities that are not in accordance with UK law.
In her advice, which I have already referred to, Jemima Stratford QC points out that the USA has placed much reliance on the doctrine of what is called “anticipatory self-defence”. Except in the rarest of cases, it will be extraordinarily difficult to see how an individual being hit with a drone strike can be said to present an imminent threat to US interests, but never mind. More importantly, the UK Government have rejected that formulation of the doctrine of anticipatory self-defence. In his written report to Prime Minister Tony Blair when evaluating the lawfulness of the invasion of Iraq, the then Attorney-General wrote:
“I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law”.
To conclude, as warfare once again begins to be waged in secret, the citizens of a democracy are entitled to know that the actions being taken in their name are lawful. Confidence in our parliamentary system demands no less. I beg to move.
Baroness Miller of Chilthorne Domer
I apologise to the Minister, but I am afraid that there is a lot more to say on these amendments before he comes to reply.
I want to address two issues in these amendments in particular. First, the technology has advanced much faster than the legislation designed to regulate its application. In this case, I am not talking about drones but about interception capabilities. Secondly, a lot of the technology appears to be applied by American forces who operate from UK soil but for whom the force of UK law does not seem to apply. For both those reasons, I suggest that the legislative framework is in urgent need of amendment.
Lord Robertson of Port Ellen (Lab)
The said Mr Norman Baker is now a Minister at the Home Office. Has the noble Baroness any indication that he has perhaps pursued these matters and some of the other eccentric matters that he was interested in before he became one of Her Majesty’s Ministers?
Baroness Miller of Chilthorne Domer
I do not know why the noble Lord finds it an eccentric matter, but I have not discussed this with Mr Baker before speaking today or, indeed, at any time. I am simply quoting the Hansard entry from those years as an example of one of the parliamentarians. I could give many others, but I do not want to take the time of the Committee. They are certainly not eccentric.
Lord Robertson of Port Ellen
I should clarify for the noble Baroness that I was referring to Mr Baker’s other eccentric issues. This one might not be classified as that at the moment.
Baroness Miller of Chilthorne Domer
I do not think we are discussing the other issues at this moment, so I shall return to the matter of the debate. The fact is that Parliament has time and again raised this issue. Indeed the Defence Select Committee in another place also raised it. In October 2004, a number of changes of use at Menwith Hill were put through as Written Statements prompting the Defence Select Committee to tell the then Secretary of State, Geoff Hoon, that:
“Despite the Secretary of State’s unequivocal statement that he wanted the decision to be informed by public and parliamentary discussion, he has acted in a way that has effectively curtailed such discussions”.
It went on to recommend full parliamentary debate of the proposals. There were none. In January 2008, my noble friend Lord Wallace of Saltaire spoke about how much Menwith Hill remains subject to British control and said that he was,
“extremely unhappy about the extent to which it remains effectively under British sovereignty”.—[Official Report, 10/1/09; col. 987.]
There is a long history of Parliament being left in ignorance on this issue. I do not know the reason for that. Was it because Secretaries of State did not know what was going on there or chose not to let Parliament know? However, the fact remains that the legislative framework applies to UK operators and all communications between the UK and abroad. We now have the Regulation of Investigatory Powers Act, which was brought in to cover some of these advances in technology. It will not come as a surprise to Members of the Committee that, under the framework, authority and warrants must be given if anything is to be done that would interfere effectively with the private lives of UK citizens. We need to know that what happens on UK soil, whether it is done on American bases or by people in the UK, is covered in the same way. That is the point of these amendments. In Amendment 15, we would give responsibility to an individual to ensure a reporting mechanism. My noble friend Lord Hodgson already referred to what an unenviable position that might be.
We have a heavy responsibility here to make sure that the very unsatisfactory state that has continued for decades comes to an end. In last week’s State of the Union address, President Obama promised to work with the US Congress to reform surveillance programmes. All we suggest in these amendments is that we in the UK Parliament play our part in making surveillance accountable. I fully accept the need for a security programme but of course I am equally concerned about where the lines are drawn and whether GCHQ overstepped its remit. At least I am assured that GCHQ has a line of accountability to the Government and our Ministers, and appears before committees of Parliament. In the case of the visiting forces, that is something we can remedy by amending the Bill as we suggest. I strongly feel that that needs to happen.
To conclude, when in 1994 Bob Cryer brought up the worry about these developments at Menwith Hill, the then Minister, Mr Hanley, said that,
“what he peddles is ill-informed, second-hand fantasy based on prejudice against our allies which in itself is not in the national interest. His colourful language may well make good sound bites, but it is pathetic in its paranoia”.—[Official Report, Commons, 25/3/94; col. 616.]
Since then, Mr Cryer’s worries have proved to be absolutely sound. It is our duty today to put in place very belatedly these amendments that would ensure full accountability.
Baroness Stern
My Lords, it is a privilege to follow the noble Baroness, Lady Miller, who has been so determined in pursuing this over a long period. I shall try to be brief. I will begin by bringing to the attention of the Committee a very short passage from the Ministry of Defence Joint Doctrine Note. It quotes General Robert E Lee:
“It is well that war is so terrible—otherwise we would grow too fond of it”.
That seems a very well chosen quotation in light of the development of war that is remote, unpiloted and rather like a video game.
These amendments take us into the area of ensuring lawfulness through requiring reporting on the activities of contractors and visiting forces. We aim by raising this matter to ensure that there is a debate on the existing scrutiny arrangements and the need to update them in the light of the widespread use of unmanned aircraft systems and future developments. I am grateful to the Minister for cleaning up my language; I will now say at all times “unmanned aircraft systems”, and I can see he is happy with me because he is smiling. It is not to suggest for one moment that what our Armed Forces are doing is unlawful. I am sure that it is not, and I am sure that the noble and gallant Lord, Lord Stirrup, was right about having his lawyer with him all the time. I do not doubt any of that for a moment.
The doctrine note that I have just mentioned deals with matters of lawfulness, ethics and humanitarian law in chapter 5. The note begins by saying:
“Signatories to the Geneva treaties are required to review all new weapons, methods and means of warfare to determine their compliance with applicable law”.
I am sure that the Ministry of Defence has done this in respect of unmanned aircraft systems, and I would be grateful to have from the Minister an indication of how and when that was done and where Members of Parliament have access to reading about such a review.
The note also says:
“There are elements of the LOAC”—
the law on armed conflict—
“that have specific consequences for unmanned aircraft, as compliance will become increasingly challenging as systems become more automated”.
I was very interested and glad to hear the Minister say that we are not going to become more automated and use unmanned systems without human agency. I am sure that many noble Lords here today will be glad to see that on the record.
I take this opportunity to congratulate the Minister and his department on the doctrine note, which is admirable in its clarity, its adherence to international law and the thoughtful way in which it raises the implications of these technologies for war in future and the impact on our humanity and value systems. I assume that the document has been shared with our American partners.
In June 2013, I asked the Government a Written Question on,
“what assurances they have received from the United States that it will not conduct activities from United States bases in the United Kingdom that violate international law”.
In reply, the Minister said:
“The use of bases in the UK by the United States visiting force remains subject to long-established agreements and procedures which ensure that the UK Government are fully satisfied as to the propriety of any US activity undertaken”.—[Official Report, 12/6/13; col. WA245.]
Will the Minister indicate what the long-established agreements are—I imagine that they are in the public domain and we know what they are—and the procedures? Can he tell the Committee whether he is satisfied that these “long-established agreements and procedures” are up to date and capable of dealing with the developments that we are discussing today?
The noble Baroness, Lady Miller, set out very cogently the concerns about why we need such arrangements—the forms of monitoring and oversight such as those proposed in the amendments. Bodies to ensure that the law is being followed are a normal part of our public administration. The IPCC scrutinises the police and Her Majesty’s Chief Inspector of Prisons inspects the prisons, just as the Care Quality Commission inspects hospitals, and so on. The area of defence weaponry and its uses is also subject to law—domestic, international and humanitarian. Machinery to ensure that the law is adhered to can bring great benefits in informing the public, counteracting ill informed speculation and strengthening the hand of all those in the system who want to operate within the law but may find themselves in a culture where there is no pressure to do so because there is no scrutiny and no chance of a comeback. I hope that this debate marks the beginning of a wider discussion of these important questions.
Lord Roper
My Lords, I apologise for omitting to thank my noble friend Lord Hodgson for these interesting amendments and my noble friend Lady Miller, and the noble Baroness, Lady Stern, for their contributions. I turn to a point made by my noble friend Lord Hodgson in moving the amendment when he quoted from the useful and interesting opinion received from Jemima Stratford. As I mentioned, there is an ambiguity in the approach to international law in the United States and in this country which raises some of the problems that we are having to consider today, in particular the problems that would arise—I realise that the Minister is unable to discuss the transfer of intelligence between allies—if intelligence were able to be used for targeting purposes.
I am extremely grateful for having had the chance to read the interesting interim report of Ben Emmerson QC. The problem is that the United States considers itself to be involved in a non-international armed conflict with al-Qaeda and its associated forces that are transnational in character. That is not merely its view; it is the position endorsed by the United States Supreme Court in the judgment of Hamdan v Rumsfeld. There is a problem in it having that position which, as we heard from the noble and gallant Lord, Lord Stirrup, is not the position in this country. There is a difference in the interpretation of the law. Indeed, the final report of Mr Emmerson will, I hope, help us to clarify it, but that is the problem that faces us at this stage.
We also have to realise that the United States can pray in its own defence some of the UN Security Council resolutions that were passed in 2001 following 9/11. If we look at UN Security Council Resolution 1368 of 2001, or UN Security Council Resolution 1373, we see that they almost gave the United States authority to deal with al-Qaeda wherever it was met. As I say, there is a difference in the interpretation of international law and an ambiguity that leads to some of the problems that we are discussing today. Mr Emmerson provides an interesting discussion of these matters in his report to the UN, and I hope that if we return to them on Report, it will be possible for other noble Lords to have read it.
Lord Judd
The noble Lord, Lord Roper, has raised a crucial issue. I am sure he would agree that, having stated that there is a difference in interpretation, we then have to act in the context of what is our interpretation. The danger is that we condone from premises and territory which is ours activity that may be acceptable within the United States interpretation but which is not acceptable within our interpretation. Of course, this can realm into very controversial issues, such as where does extrajudicial killing begin and end? There is the issue of rendition, as we have seen in the past, and so on. That is why it is so crucial to remember that the Minister in his very helpful response to our previous debate gave a specific assurance that he would be able to say things at this stage of our proceedings that would completely reassure us. The point is that our territory and our premises can be used only in terms of our understanding of the legal position and our interpretation of what it is all about.
I should like to make one other point. It is not just a matter of legality. I care desperately about that because I always come back to the point that, in the end, what the hell are we defending if we are not defending the principles of the rule of law and so on? We make an absolute nonsense of our commitments if we rationalise our way out of that.
I am always very worried—and this applies in British domestic legislation too—about where the dividing line between what is effective action against terrorism and extremism and all these cruel and unacceptable happenings becomes counterproductive because it begins to lend ground to those who are trying to recruit for the cause of extremism. One of the arguments that they love to use is, “look at the hypocrisy of these people”. It is, therefore, crucial to be able to demonstrate all the time that we are operating, not only in detail but in spirit, according to the principles we say we are upholding.
Lord Roper
I am grateful to the noble Lord for that intervention. He is, of course, a very old friend. However, I feel that the Minister and the noble Lord, Lord Dannatt, in their interventions in the earlier debate, made it absolutely clear that there was no question of any American remotely piloted aircraft being controlled from United Kingdom territory. I think that was the assurance that the noble Lord, Lord Judd, was seeking.
On the other point, there is a perfectly good and important debate as to what is wise and what is unwise. I agree that there is a question of potential counterproductivity and that is why there is a dilemma in considering how these things should be used—whether there is going to be a net benefit, or a net disbenefit. That is a matter which has to be assessed on each occasion.
Lord Hodgson of Astley Abbotts
The noble Lord, Lord Judd, has raised a point and I think that my noble friend has answered half of it. He has answered the point about action coming from here. What we need to find out is whether information is being passed on which others take action. If we are doing that, we are assisting an illegal act. We need to be clear about that. It is not just doing things, it is sending information that other people act on.
Lord Judd
I should like to support that response to the noble Lord, Lord Roper. I hesitate to use the word to such a long-standing personal friend and in the context of my respect for him, but I think it is a bit naïve to argue that, simply because we have these undertakings on automated aircraft and automated weapons, that is the end of the story. An awful lot of other things could be happening on our territory and on our premises which could be assisting with, for example, the extrajudicial killing, if we see it that way.
Lord Roper
The noble Lord is obviously right about that. I was really treating the somewhat narrower point on the earlier amendment which we had been considering rather than the wider range of activities which could take place and which was very much discussed when we were looking at the question of extraordinary rendition.
I only replied en passant to the second point which my noble friend Lord Hodgson made. I mentioned that, although we have had a very clear assurance about nothing being done from the United Kingdom, unfortunately, the Minister was unable to cover the second issue which he raised.
Baroness Miller of Chilthorne Domer
I apologise to the Minister but, as the noble Lord, Lord Rosser, does not appear to be going to give an opinion, I would like to ask him a question. His Government were farsighted enough to bring in the Regulation of Investigatory Powers Act—and obviously they were concerned that the legislative framework kept up with technology. Does he support, in principle, the idea behind our Amendment 15 that its reach should be extended to cover visiting forces? In his opinion, is that something that we should aim to do?
Lord Rosser
It was not my intention to intervene in this debate since it seemed to be going on to rather wider issues than strictly covered in the amendment. For that reason, I am not going to go through the specific wording of the amendment and respond to the particular points in it as to where we stand because clearly the issues being raised in this debate go way beyond the amendment and, in my opinion, way beyond the provisions of this Bill.
Lord Astor of Hever
My Lords, these amendments have enabled us to have a debate about a number of issues. The Defence Reform Bill deals with the future arrangements for defence procurement and the Reserve Forces. As with Amendments 10 and 11, which we debated earlier, the issues in this group of amendments go some way from the issues covered by the Bill. Therefore, I will address the impact of the amendments on the Bill, and I shall also try to deal with some of the other issues that have been raised.
First, I turn to Amendment 14 which would require the contractor—the GOCO—to report annually, or more frequently if specified, to the Secretary of State on the technical characteristics, capabilities and use of the equipment and services procured under the provisions of Part 1 and to ensure that anyone who provides defence procurement services to either the GOCO or the MoD provides all the information necessary to enable such a report to be made. Currently, DE&S does not report to the Secretary of State on the details of all equipment and services procured. Procurements are classified on the basis of value, and approvals take place at the appropriate level, with approvals for very high value, novel or contentious procurements elevated to the Defence Council. Where appropriate, DE&S seeks legal assessments of equipment and services procured. An established project management and acceptance process exists for equipment and services with the customer.
It is envisaged that this process would continue to exist under the GOCO arrangements. These arrangements will be agreed in the defence procurement services contract in place between the contractor and the MoD. It is currently not practical or necessary for DE&S to report to the Secretary of State on the details of all equipment and services procured and likewise it will not be practical or necessary for the GOCO to report these details to the Secretary of State.
I turn now to Amendments 15 and 16. The proposed addition to the Visiting Forces Act runs contrary to the purpose of the Act and would impose an onerous and unnecessary obligation on the Secretary of State for Defence. The UK welcomes foreign military personnel from a large number of countries. Their position in the UK is covered by the Visiting Forces Act and the NATO Status of Forces Agreement. Some are here as exchange officers, others for major exercises and some for training and education. This financial year some 3,000 foreign military personnel will have trained in the UK. For example, 65 foreign students are at the Royal College of Defence Studies here in London. Some 80 foreign officer cadets are at the Royal Military Academy Sandhurst and eight foreign officers attend the Royal Navy’s principal warfare officer course at Fareham. These military personnel are so enmeshed into the activities of the UK Armed Forces that a separate reporting mechanism concerning procurement, command and control, and premises and property, is not needed. The amendment is broad since it concerns,
“all premises and property used by visiting forces for defence purposes”.
The Visiting Forces Act and the NATO Status of Forces Agreement do not place foreign forces beyond the reach of UK law. The Act and agreement permit foreign laws and military discipline to apply to foreign military personnel in the UK, but these do not displace UK law. There is nothing unusual or sinister about this, and we require similar provisions for our forces when they are overseas. For these reasons, the Government oppose this element of the amendment. It might be helpful in this context if I clarify that RAF bases are made available to the United States visiting forces under the terms of the NATO Status of Forces Agreement and that USVF personnel in the UK are subject to the provisions of the Visiting Forces Act. I assure my noble friend that the RAF commander takes his responsibilities very seriously, and he receives very substantial training before he takes them on; I have been assured on that point.
With specific regard to oversight of the intelligence activities undertaken at RAF Menwith Hill, this is already provided by the parliamentary Intelligence and Security Committee. The committee does not comment on the details of its work programme, although it does publish information and, when appropriate, occasionally comments in its annual report on visits it has undertaken. I am able to inform noble Lords that the committee has made such occasional visits to the joint UK-US facility at RAF Menwith Hill.
Lord Hodgson of Astley Abbotts
My Lords, it is important to have on the record that these amendments are not meant to undermine collaboration with our allies, wherever they may be. We understand that the security of this country depends on working with people and other nations and making sure that we in turn help them maintain their security. It is important that that should be on the record.
What I was concerned about was this: the noble Baroness, Lady Stern, referred to the creation of a culture, and the question is whether we have the right culture around how this issue should be approached. I do not want to stretch the analogy too far, but the problems that happened in the City of London were about culture. People said, “So long as it is not breaking the law, we can do more or less what we like”. What the noble Baroness is putting her finger acutely on is whether we have people who follow the spirit as well as the letter of the law, or whether we are, as the noble Lord, Lord Judd, said, in danger of being seen as hypocritical.
The Minister said, strangely, that systems for supervision and scrutiny exist, but he was not prepared to confirm that they are being used because he could not say that. That is exactly the culture question. The systems are there, but are we using them properly? In that sense, unlike his response to the first group of amendments, this was a rather less than satisfactory response. We have not addressed the question of anticipatory self-defence and whether we are providing means of collaboration with our allies, whoever they may be and who believe that anticipatory self-defence is okay, in things that would be unlawful under UK law. We have had a good first canter around the field. My noble friend Lady Miller has got her teeth into the ankle of an issue and is not letting go. In the mean time, I beg leave to withdraw the amendment.
Lord Rosser
My Lords, Clauses 9 and 10 relate to the transfer of employees, and the transfer of property rights and liabilities in the light of the provisions in Clause 1 in respect of defence procurement arrangements. The decision has now been made by this Government that they will not proceed with the GOCO option but will move to a changed DE&S organisation from April.
Can I ask how the Government envisaged a transfer of staff to a GOCO taking place, had they decided to continue to proceed down that road? When the Bill was being discussed in the other place, the government Minister concerned said that the Government were,
“considering a phased transfer by domain, with the initial domain—maritime—transferring two years before the competition for the remaining domains becomes effective. It is likely that the successful contractor for the initial domain will also be in the competition for the other domains and in a strong position to win them, but it is important that we maintain competitive tension to ensure that the contractor puts in a competitive and compelling bid for the other domains. Therefore, we do not intend to give exclusivity rights over those domains to the successful contractor for the initial domain, which opens up the prospect of having different contractors”.—[Official Report, Commons, 10/10/13; col. 252.]
However, a few minutes after that, in the same debate, the same government Minister said that he had had,
“some advice saying that, as drafted, the contract will be for all four domains”—
including the joint domain—
“and that, in respect of competition for the four domains, including the joint domain, after the initial phase is over the subsequent phases will transfer automatically, in the event that the performance of the contractor has been up to speed”.
Having repeated the advice that he had just been given, the government Minister in the other place said:
“Whether that survives negotiation remains to be seen. Maintaining an element of competition before agreeing the transfer of subsequent domains is quite important. We will be negotiating that as we proceed down the track”.—[Official Report, Commons, 10/10/13; col. 253.]
One is left with the impression that the government Minister in the other place was not wildly enthusiastic about the advice that he had received and had just repeated it.
I appreciate that this is somewhat academic, as this Government are not proceeding now with the GOCO, but whether there might have been more than one contractor, and the timescale for the transfer of domains, is an issue of interest for DE&S staff. It would be helpful if the Minister could indicate which of the two versions of the competition transfer arrangements for the GOCO set out by the government Minister in the other place, to which I have just referred, actually represented the Government’s intentions.
The Government are now moving to a new DE&S organisation from this April and are seeking the agreement of the Treasury and the Cabinet Office to provide the new DE&S organisation with greater freedoms and flexibilities to recruit, reward, retain and release staff; freedoms and flexibilities that are considered necessary for the effective and efficient conduct of the business. The Government have said that DE&S requires,
“a high proportion of Project Management, Commercial and Financial expertise as well as engineering and other technical specialities”.
They added:
“These specialist skills have a much higher market value than can be recognised within the civil service pay framework, and it is becoming increasingly difficult to recruit, develop, and retain those with the particular skills needed at all levels of the business”.
There are currently hundreds of posts unfilled within the DE&S organisation. Without the achievement of the proposed greater freedoms and flexibilities, the Government’s view is that the loss of skills and capability in DE&S will continue, reducing the ability of the Ministry of Defence to deliver equipment to the front line.
I appreciate that it is extremely unlikely that the Minister will be able to say any more today about the progress of the discussions with the Treasury and the Cabinet Office than he said two days ago. However, as it will affect the employees of the new DE&S organisation in April, can the Minister say something about the hoped-for timescale of the Ministry of Defence getting the new DE&S organisation fully up and running? Roughly how many of the current vacant posts in the DE&S organisation will be filled, assuming agreement is reached on the new freedoms and flexibilities, and over what timescale will they be filled? Are the current discussions with the Treasury and Cabinet Office about the principle of going outside the Civil Service pay scale, or about the extent to which it will be acceptable to go outside the Civil Service pay scale in the revamped DE&S organisation from April—or are the discussions about both issues?
The Government have said that they are looking for an injection of a significant element of private sector support in the changed DE&S organisation from April. What form will that private sector support take, in what areas of activity and at what cost? Is it a case of the private sector taking over and running some functions, of the private sector acting as consultants, or of people from the private sector coming into posts in the DE&S organisation and becoming employees of the organisation on permanent contracts? Or is it intended that it will be a combination of all three? How long is it expected to take to bring in the private sector support envisaged, and how long is it expected to be before the DE&S organisation from this April will be running and operating as fully envisaged by the Government, with its new freedoms and flexibilities, and injection of a significant element of private sector support?
Lord Astor of Hever
My Lords, the provision in Clause 9 is necessary to ensure that any initial transfer of civil servants to the contractor will be under the Transfer of Undertakings (Protection of Employment) Regulations 2006, or TUPE. These implement the EU-acquired rights directive 2001/23EC, which ensures that employees’ rights are safeguarded in the event of transfers of undertakings, businesses, or parts of undertakings or businesses.
The TUPE regulations protect employees if the business in which they are employed changes hands or if the services that they provide are to be provided by another organisation. Their effect is to transfer employees and any rights, powers, duties and liabilities associated with them from the old employer to the new employer. This includes any rights specified in their contract of employment, statutory rights, and the right to continuity of employment. It also includes employees’ rights to bring a claim against their employer for unfair dismissal, redundancy or discrimination, unpaid wages, bonuses or holidays, and personal injury claims. Liabilities arising from such claims also transfer to the new employer. TUPE gives employees a legal right to transfer to the new employer on their existing terms and conditions of employment and with all their existing employment rights and liabilities intact, although there are special provisions dealing with old-age pensions under occupational pension schemes.
Where the sole or principal reason for a dismissal is the transfer itself, it will automatically be deemed to be unfair. This is also the case where the sole or principal reason for the dismissal is a reason connected to the transfer, unless it is for an economical, technical or organisational reason—an ETO reason—requiring a change in the workforce, such as an organisational restructuring resulting in a reduced workforce requirement, or a business relocation. This ETO defence is narrow in scope, and it can be difficult for the new employer to demonstrate. Even if the employer can rely upon an ETO defence and the dismissal is not automatically unfair, it may still be unfair for other reasons, such as a failure to consult properly in a redundancy situation.
Similarly, the new employer cannot change the terms and conditions of employment of transferred employees if the sole or principal reason for the change is the transfer. This is also the case where the sole or principal reason is connected to the transfer, unless there is an ETO reason for the change, usually requiring a change in numbers of the workforce. This often makes it difficult, if not impossible, for new employers to harmonise terms and conditions of employment of staff immediately after a TUPE transfer.
There is a risk that the transfer could be regarded as being outwith the TUPE regulations and be classed as a public administrative transfer. Therefore, it is necessary to make clear provision through the Bill and give the employees certainty that their rights will be protected by the TUPE regulations. The TUPE regulations list explicitly situations to which the regulations do not apply, and a public administrative transfer is one such situation.
Clause 9 also ensures that if the contractor seeks to make redundancies or alter terms and conditions of service, the TUPE regulations will apply. Further, because the protection of employees’ pensions is limited under TUPE, the amendments to the Treasury’s fair deal policy as a result of the Public Service Pensions Act 2013 mean that the employees will also retain membership of their public sector pension scheme upon transfer, and the GOCO will enter into an employer admission agreement with the Ministry of Defence and the Cabinet Office, which will form a contractually binding agreement to continue to allow access to the public sector pension schemes for the transferred employees.
In summary, this clause is required to avoid any doubt that the TUPE regulations will apply to the transfer of Ministry of Defence civilian employees to a GOCO. It will not apply to service personnel, who will remain with their respective services, and will be placed in the contractor’s organisation as required to provide military expertise. They will remain Crown servants and will continue to be managed by their owning military service, and their terms and conditions of service will remain.
The contract between the Secretary of State and the contractor will set out a routine for managing the placement of service personnel in the contractor’s organisation, and will make provision to remove personnel at short notice from the contractor’s organisation if required for operational reasons. Service personnel placements in the contractor’s organisation will last for two to three years, in accordance with usual personnel appointing routines.
Clause 10 and its related schedule provide a number of necessary safeguards, including the power for the Secretary of State to create a transfer scheme which will enable the transfer of the business to another contractor or, in extremis, back to the Ministry of Defence. When a contract expires or is terminated, for whatever reason, it may be necessary for the Ministry of Defence to manage operations itself or to transfer the undertaking to a new company.
Under this power, it is intended that the Secretary of State would have the ability to direct the transfer of certain specified property, rights and/or liabilities such as real property, intellectual property, contracts and people, to either himself, a company, including a publicly owned company, or to a new contractor. This power would allow the Secretary of State to decide exactly what is to be transferred at the point that the transfer scheme is created. The power may be exercised in unforeseen circumstances and maximum flexibility is therefore required. The contractor will be conducting work which is critical to national security and it would not be appropriate to rely on contract provisions alone.
For example, in a situation where the entity becomes potentially insolvent and elements of the business are liable to fall into the control of an administrator, a statutory provision offers more certainty and control and therefore less risk, while contractual provisions are more easily amended or subject to dispute. Furthermore, third-party rights can usually only be transferred with the consent of the third party, whereas a transfer scheme can direct that such rights are transferred. The intention would be to use such a scheme in only a very limited number of scenarios, such as the early termination of a contract. The critical national importance of defence procurement makes it inappropriate to rely on contractual provisions alone. Moving assets by a transfer scheme will avoid the need for third-party consent and ensures the continued delivery of defence procurement services.
The noble Lord, Lord Rosser, asked whether Clauses 8, 9 and 10 on property rights apply to the new DE&S in April. The answer is no, because the new DE&S will remain part of the department, so there is no change of employer for the staff and no property is legally transferred. The noble Lord also asked about freedoms and flexibilities. The new organisation will have significant freedoms and flexibilities, agreed with the Treasury and the Cabinet Office, around how it recruits, awards, retains and manages staff along more commercial lines, to reflect its role of running some of the most complex procurement activity in the world. As part of the MoD, DE&S will remain a Crown body and its staff will continue to be civil servants. However, there will be a number of significant changes, including that governance will be through a non-executive chairman, a CEO and a Chief of Defence Materiel, supported by a board and other non-executive directors. DE&S will be accountable to Ministers through an owners’ council, with an agreed corporate plan and framework document to enshrine its freedom to operate.
Funding will be via MoD estimates, in due course through charging MoD customers for the work it does. DE&S will publish its own plans and produce annual reports and accounts, which will be consolidated within those of the MoD. DE&S will be accountable to Parliament through the CEO as an additional accounting officer. DE&S will have the freedom to pay, grade, promote and manage Civil Service staff. These changes will reinforce the customer-supplier relationship between the military command customers and DE&S and allow it to move earlier to a hard-charging regime.
The noble Lord asked if there was one competition for each phase. There will be a single competition for all four domains provided that the performance of the domains are satisfactory as they transfer. That is, before each subsequent domain transfers, an assessment is made of the GOCO-contracted performance, which is required to meet an agreed standard. The noble Lord asked about discussions on Civil Service pay freedoms. Discussion is ongoing on whether DE&S will be able to go outside the Civil Service pay framework. The noble Lord also asked about the retention of staff. The decision has not yet been made on the remuneration package for retained staff. Any decision will depend on the freedoms agreed with Her Majesty’s Treasury and the Cabinet Office. The noble Lord also asked about pensions. Civil servants transferred to the GOCO will retain their pension arrangements. He asked about a two-tier workforce. There will inevitably be staff on different terms and conditions but that will not necessarily create a two-tier workforce. Part of the purpose of the freedoms being sought is to recognise and incentivise performance through reward.
I said that I would return to Schedule 2. The noble Lord asked why, if there is a criminal penalty under Part 2 of the Bill, one should not apply to GOCOs under Part 1 as supplier contractors are very concerned that GOCOs may misuse the relevant information. Under single-source provisions, contractors are compelled to provide information. They have no choice in that. However, under Part 1 the information is voluntarily given to the MoD by the contractors as part and parcel of the particular procurement being negotiated. It should also be remembered that the Part 1 provisions for disclosure of information to the GOCO apply only to existing and legacy contracts at the date of vesting. After the date of vesting for all new contracts it will be up to the supplier contractor to negotiate for appropriate confidentiality clauses to be included in their contracts, just as for any other contract in any other area of business.
Lord Rosser
I thank the Minister once again for his detailed response. I would be grateful if he would read in Hansard the points I raised as I think there are one or two questions to which he did not respond. I should say straightaway that I did not expect him to be in a position to respond to them all immediately. He has certainly answered a number of the points, but I would be grateful if he would write to me on those to which he did not respond. I also appreciate his further response in relation to the earlier debate we had on Schedules 2 and 5. I will reflect on the additional information he has just given. I certainly do not intend to pursue the Question that Clause 9 should not stand part of the Bill and I thank the Minister once again for his response.
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Electoral Registration
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Baroness Royall of Blaisdon
To ask Her Majesty’s Government what steps are being taken to increase the number of people who are registered to vote in the United Kingdom.
Lord Wallace of Saltaire (LD)
My Lords, the Government have announced today that £3.6 million of additional funding will be distributed equitably among electoral registration officers and local authorities, according to levels of underregistration, to help with the costs of local activities for maximising registration. A further £215,000 is being used to fund directly a number of national organisations, as announced yesterday, to develop approaches to maximising registration among particular target groups. The Government welcome all initiatives that promote democratic engagement, such as Bite the Ballot’s National Voter Registration Day today.
Baroness Royall of Blaisdon (Lab)
My Lords, I welcome that announcement from the Government and I pay tribute to Bite the Ballot for organising hundreds of events with the aim of registering today thousands of young people to vote. The Minister spoke warmly yesterday of citizenship lessons but warm words butter no parsnips. I strongly urge the Government not to encourage but to ensure that an inspiring citizenship curriculum is taught in every school, including academies and free schools, and that every school should facilitate everyone of or near voting age to register to vote. Will the Government also consider enclosing electoral registration forms with all their official communications with young people, for example those regarding national insurance numbers and driving licence applications?
Lord Wallace of Saltaire
My Lords, the last point is one that I will take back, as we are certainly considering how best to encourage all this. The new citizenship programme for study, which has now been agreed to be taught from September 2014, stipulates that pupils should be taught about parliamentary democracy and the actions that citizens should take in democratic and electoral processes to influence decisions locally, nationally and beyond.
Lord Maclennan of Rogart (LD)
My Lords, I welcome the announcement by my noble friend. However, can he say how that money is to be distributed a little more precisely than he did to tackle the problem, as identified by the Electoral Reform Society, that some 800,000 young people are not registered to vote who are otherwise entitled to do so? Is the money to be directed towards the local authorities, which have responsibility for ensuring that people are registered? Will he indicate how the Government will check up on the effectiveness of what they are doing?
Lord Wallace of Saltaire
My Lords, the money is being allocated among local authorities according to the results of the confirmation dry run, which showed that we are getting up to an 80% level of confirmation, and indeed sometimes up to 85%, from data matching. However, there are a number of local authorities, including Westminster and Kensington and Chelsea, where, because of the transient population, registration is much lower. Places such as those, where people move frequently, and others with a large number of students or private landlords will be granted large amounts of money to target those groups.
Lord Reid of Cardowan (Lab)
My Lords, will the Minister update us on the proposals to cross-reference the databank of the DWP with the electoral registration databank for the purposes of informing those who have not registered but are on the DWP databank, and to encourage them to register? What precedent does this cross-referencing of data from a government department set for information supplied by citizens to a government department for the exclusive use of that department and the purposes that it is meant to carry out?
Lord Wallace of Saltaire
That is a very good question on a very difficult and complex area. It raises questions of privacy as well as convenience. The DWP database has been used for data matching, but in one direction and with very careful procedures so that we were not transferring data, just checking their existence. There are a number of other local and national databases that have been used. It has been discovered, for example, that you can raise quite significantly your confidence that people are there if you use local databases, such as benefit boxes and council tax, as well as national databases.
Lord Rix (CB)
My Lords, what can the Government do to ensure that people with a learning disability receive voter registration forms in the easy-read format so that they can participate in the 2015 elections?
Lord Wallace of Saltaire
My Lords, one of the five organisations that I was able to announce yesterday that the Government are funding to deal with target groups and vulnerable groups is Mencap. We ask Mencap in particular to have regard to that.
Lord Lexden (Con)
Could my noble friend comment on the initiatives being undertaken by the Hansard Society in conjunction with the Cabinet Office—initiatives that could have a marked effect on the number of young people registered to vote?
Lord Wallace of Saltaire
My Lords, the Hansard Society is working with Homeless Link on a project that is very much targeted at young people who are moving very rapidly or who do not have a settled address, who of course are one of the most difficult groups to reach.
Lord Wills (Lab)
My Lords, as the Minister is well aware, the Government generally allocate funds to local authorities for the purposes of electoral registration through the local government finance settlement. As he is also aware, these funds are not ring-fenced. Will the Government say whether they know, rather than hope or think, how much of that funding is spent for the purposes of electoral registration?
Lord Wallace of Saltaire
As the noble Lord knows from our previous discussions on this on many occasions, the Government are not in favour of extending ring-fencing. Having met a number of electoral registration officers, I have great confidence that they can look after themselves and ensure that the money is not siphoned off to other sources.
The Lord Bishop of Wakefield
My Lords, noble Lords will know that churches and the ancillary buildings connected with them are often the places where hustings take place, and indeed are used as polling stations. This is a key way of engaging local people in the democratic process. With the recent passing of the transparency of lobbying Act, will the Minister reassure us that churches and such places will continue to be used and will not be affected by the passing of that Act?
Lord Wallace of Saltaire
My Lords, I cannot see any way in which the use of churches as polling stations, and indeed the role of the clergy in encouraging people to do their community and civic duty, will be adversely affected. I very much hope that the church will continue to encourage all those who are part of its community to take a full part in civic, social and political life.
Employment: Young People
(10 years, 3 months ago)
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Baroness Byford
To ask Her Majesty’s Government what assessment they have made of the impact of the Youth Contract in helping young people into employment.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
My Lords, the Youth Contract builds on the support already available from Jobcentre Plus to help young people get back into work. Our approach is working. The number of young people claiming jobseeker’s allowance has fallen for the 19th consecutive month.
Baroness Byford (Con)
My Lords, that is indeed good news. Does my noble friend recognise the contribution that voluntary youth organisations, particularly armed services cadet forces, play in the development of young people and in preparing them for the work ahead? Can he tell us what the assessment is of long-term youth unemployment in this country?
Lord Freud
My Lords, one of the most serious problems that we inherited was around long-term youth unemployment; that was structural rather than cyclical. The measures that we have been taking are to get the education and training base for youngsters right. As I have told noble Lords in the past, I thought that the Alison Wolf report on dealing with this issue was most remarkable. We are pushing that through at every level.
Baroness Armstrong of Hill Top (Lab)
My Lords, can the Minister tell us how many young people in the north-east have benefited from the measures that the Government have put in place to tackle youth unemployment?
Lord Freud
In the north-east, the number of youngsters—those under 24 years old—who have been claiming as unemployed has gone down by 27%; that is by 7,500 to a figure of 20,000. One of the interesting things about the unemployment figures is how broadly based they have been. If you take the four most northern regions of the country—the north-east, the north-west, Yorkshire and Humberside, and Scotland—they have in combination reduced their claimant count by 43,000 youngsters to 118,000. That is, interestingly, rather more than London and the south-east.
Lord Martin of Springburn (CB)
The Minister will recognise that there are far more self-employed journeymen and women than there used to be. Are the jobcentres targeting these self-employed people to take on apprentices?
Lord Freud
The apprenticeship is one of the most valuable ways of getting youngsters into the workforce. Clearly, sole traders are a valuable resource for that. One of the most interesting projects is called Working Rite, which pairs up youngsters with sole traders. That is something that we encourage.
Looking at the number of apprenticeships as a whole, in the three years since the election we have had nearly 1 million apprenticeships of people under 25. That is very encouraging; it is 50% higher than the equivalent three years beforehand.
Lord Baker of Dorking (Con)
My Lords, does the Minister not agree that the cost of youth unemployment today is, annually, £4.8 billion. If you allow for lost output, it is £10 billion. Should not the target for every school in the country be that when youngsters leave at 16 or 18 they either get a job, a higher apprenticeship, an advanced apprenticeship, go on to college to do A-levels or go to university? That is a target that university technical colleges have, and it is a target that is met.
Lord Freud
My Lords, I could not agree more with my noble friend. There are only four things one can do to help youngsters into the workforce: directly get them a job; training and education; apprenticeships; or work experience, which is a stepping stone. That is what Alison Wolf told us, and that is what the Government are aiming to do.
Baroness Sherlock (Lab)
My Lords, I think the Minister said that the Government inherited high long-term youth unemployment from the Opposition. However, the ONS publication Labour Market Statistics shows that long-term unemployment for 18-24 year-olds is 232,000. The same data set shows that in the period spanning the last election it was only 188,000. Labour has made it very clear that we would guarantee a job for every young person out of work for more than a year and make them take it. What will the Government do?
Lord Freud
My Lords, the figures the noble Baroness quoted are very distorted by the training allowances, which got people off the long-term measure. I will not go into a long song and dance about it, but those figures were the result of a very distorted comparison. I have quoted the real figures—the ones that matter—to this House on a regular basis. When you look at youngsters who are both workless and outside full-time education, that figure rose through the longest boom we have seen in our history because of structural inability to get those youngsters into the workforce. There was neither adequate education nor routes into the workforce. We are turning those figures round—and they are the real figures.
Lord Roberts of Llandudno (LD)
May I ask the Minister how we monitor the success of these training schemes and apprenticeships? How many are effective in providing long-term, standard employment when their training or term of apprenticeship comes to an end?
Lord Freud
My Lords, it is vital that we have routes that lead into long-term, sustained employment and into being part of the economic life of the country. It is a bit early to look at the apprenticeship figures yet, because they are long term, but if you look at the work experience figures, nearly half the people on work experience were off benefits 21 weeks after starting a placement. That is more or less the kind of figure we saw with the Future Jobs Fund. The difference is that this work experience cost one-20th of what the Future Jobs Fund cost the previous Government.
Banks: Lending
(10 years, 3 months ago)
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Lord Empey
To ask Her Majesty’s Government what assessment they have made of the success of the steps they have taken to encourage banks to lend to small and medium-sized enterprises.
Lord Popat (Con)
My Lords, the Funding for Lending scheme is incentivising banks to increase lending to businesses. In addition, the Enterprise Finance Guarantee scheme has underpinned £1.4 billion of lending since 2010, and the Government are supporting the development of alternatives to bank finance. In the last quarter of 2013, the banks lent an average of £4 billion a month; in the same period in 2012, the average was £3.1 billion. That trend is positive and encouraging.
Lord Empey (UUP)
My Lords, I of course welcome the establishment of the business bank and the additional funds earmarked for it. However, as the Minister knows, the vast bulk of business lending in the UK comes from commercial banks. With a recovery under way at last, does the Minister not fear that the banks could take the easy way out and divert funds needed for SMEs into a heating and unproductive housing market, thus ensuring that the real wealth creators of this country are unable to help our economy grow?
Lord Popat
My Lords, we launched the Funding for Lending scheme to kick-start the housing market and to help our SMEs. Now that the housing market is picking up, the Government accept that the Funding for Lending scheme no longer needs to support lending to households. That is why the scheme’s fire-power has now been refocused to underpin the supply of credit to small businesses, where it is most needed.
Lord Harrison (Lab)
My Lords, given the decline in lending to small businesses—
Lord Lawson of Blaby
My Lords, three months ago the Royal Bank of Scotland Group, which is owned by the Government, publicly admitted that it has been treating its SME customers abominably and undertook to change its ways. Can my noble friend tell the House what practical steps have been taken and what the Government are doing to monitor this situation, for which they have a clear and direct responsibility?
Lord Popat
My Lords, we are encouraging the Royal Bank of Scotland to lend more money to SMEs. In fact, the bank has lent £58 billion to small businesses. On Thursday last week, the Royal Bank, together with four other banks, launched a campaign to say that they were open to lending money to small businesses and willing to consider applications from SMEs. Therefore, the Royal Bank of Scotland is conducting a proactive campaign to make sure that it lends to small businesses.
Lord Harrison
My Lords, given that the Bank of England has tabulated another fall in lending to small businesses in the past couple of months, that the CBI has called for wider ways of funding small businesses and that the WEF has asked for more competition from the banks in lending to small businesses, why does the Minister try to paint so rosy a picture?
Lord Popat
My Lords, the Minister is not painting a rosy picture. Let me take the last point made by the noble Lord, relating to competition. We will soon spin out a TSB from Lloyds Bank; we will spin out Williams & Glyn’s Bank from the Royal Bank of Scotland; we have the British Business Bank in place and the large number of private banks that have come into the market: the Metro Bank, the Shawbrook and the Cambridge & Counties Bank. There are therefore several banks coming into the market. Another thing that the regulators have done is that they looked at the regulations to make it easier for new companies to apply for banking licences. We have 20 applications being considered at the moment, so given time, we will have a number of banks in real competition.
Lord Low of Dalston (CB)
My Lords, if the recovery is going so well, why are businesses not investing on a more significant scale, but rather holding very considerable amounts of uninvested resources on their balance sheets?
Lord Popat
My Lords, you cannot force a company in the free market to make an investment, but you can create the conditions for such things to happen. I am pleased to say that the conditions in this country are now pretty good for businesses to invest money.
Lord Cotter (LD)
My Lords, exporting is very important for this country, but can be daunting and difficult for small businesses. Will the Minister ensure, through UKTI and otherwise, that it is made easier for small businesses to actually get funding for exporting, which is an essential need for the country?
Lord Popat
My Lords, when I first came to this House, I set up an ad hoc committee to see what we could do to help SMEs to export more and have access to finance. The report was published in this very House, and we now have a large number of schemes, with UKTI working to help our SMEs to export more and to make funds available for exporting.
Lord Stevenson of Balmacara (Lab)
My Lords, the National Audit Office recently reported on borrowing to SMEs. It said:
“the flow of new bank term lending to SMEs fell by 23 per cent between 2009 and 2012 … the ‘funding’ gap (the difference between the funding required by SMEs and the funding available) … may reach £22 billion by 2017. … There is no formal research programme joining BIS, HM Treasury and other departments that have an interest in SMEs. As a result, emerging insights are not as joined-up as they should be”.
Will the Minister tell the House when he last met with Treasury officials and when he intends to meet them to talk about SMEs in the future?
Lord Popat
My Lords, gross bank lending has gone up for the past 12 months, although net lending has fallen in three out of the past 10 months. Overall lending is a lot more than it was in 2012. I am pleased to say that, although net lending has dropped, there are other sources of finance available to SMEs and businesses from which they can borrow money. The recent responses to the Bank of England credit conditions survey reported that the overall availability of credit to the corporate sector increased significantly in the final quarter of 2013. I normally stick to my own department, and I have not had any meetings with the Treasury.
Lord Forsyth of Drumlean (Con)
My Lords, will my noble friend explain why the capital requirements for banks that are lending to small businesses require them to maintain a considerable amount of capital for the loans they provide, whereas, if they buy Greek bonds, they are not required to provide any capital at all? Is it therefore any wonder that there is a distortion towards buying bonds from sovereign bodies rather than lending to small business? Should we not look at the regulation?
Lord Popat
My Lords, the regulations are being reviewed, but I agree with the noble Lord. A large number of medium-sized businesses are now switching from bank borrowing to issuing bonds.
Central African Republic
(10 years, 3 months ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government what support they will provide to the European Union mission in the Central African Republic, authorised by the United Nations Security Council on 28 January.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, we remain concerned about the security situation in the Central African Republic. An EU operation would reinforce African Union troops and improve the security and humanitarian situation. The EU operation is still subject to UK parliamentary scrutiny and further EU Council decisions. If agreed, the UK could cover around 15% of the common costs; we are not planning to provide combat troops.
Lord McConnell of Glenscorrodale (Lab)
With thousands dead, more than 1 million displaced, many new recruits as child soldiers and many instances of sexual violence, there has clearly been failure by the United Nations and others in sleepwalking into this situation. For now, the support of the UK for the EU mission and the work of the UN and the AU is welcome. Will the Minister use her good offices to ensure that the Minister for Africa and the relevant Minister at DfID organise a briefing for Members of both Houses, given the level of interest that there is in this crisis, both here and outwith the Houses, after more than 100 people attended a meeting in Parliament last Wednesday night?
Baroness Warsi
The noble Lord is absolutely right to raise these issues. He will recall from the Question that I answered on 16 January that the two issues that came out loud and strong were, first, on support from the United Kingdom for the EU—and I am delighted to say that the Foreign Affairs Council has clearly moved on this matter; and, secondly, noble Lords’ request for further information from my ministerial colleague. I fed that back to Mark Simmonds, who has agreed to come and brief parliamentarians. I think that a date is currently being arranged.
Baroness Berridge (Con)
My Lords, in the past few days there have been reports of further collusion between ex-Seleka rebels and Chadian soldiers, as Seleka rebels have fled to the north of CAR, raising a flag that indicates that it is now partitioned from the rest of the country, and have been joined there by Chadian soldiers, who are helping in those efforts. Could my noble friend the Minister please outline whether those issues were raised by the Minister, Mark Simmonds, when he met the Foreign Minister for Chad on 28 January? Will Her Majesty’s Government make representations to the UN and the AU to insist on the removal of Chadian soldiers from any peacekeeping effort in the country?
Baroness Warsi
I am not sure what was raised at that particular meeting, but I shall certainly check the record and write to my noble friend about that. In relation to the efforts of the African Union forces, we are, of course, grateful for the front-line position that they have taken in this matter. We feel that it is for the African Union to decide the most effective make-up of its forces—but ensuring at all times the high standard of behaviour among those deployed on this mission. We have regular discussions with the African Union on this issue and on a whole variety of peace and security issues, but I shall make sure that our Permanent Representative to the AU raises these matters with the AU Commission.
Lord Boateng (Lab)
My Lords, I was in the region last week, and what was very clear to me on the ground was that the violence has moved from Bangui and into the rural areas of the Central African Republic. In the past 72 hours some 75 people or more have been killed in Boda, some 100 kilometres outside Bangui. What urgent steps are being taken, not simply to reinforce the AU-EU peacekeeping efforts but to ensure that backing up those efforts is a DfID and EU presence on the ground, addressing the issues of interfaith relationships and sustainable livelihoods, because it is joblessness and hopelessness as well as sectarian hatred that fuels these outrages?
Baroness Warsi
The noble Lord raises a number of issues, and I agree with what he says, but ultimately we have to return to a political process. There was a process agreed at N’Djamena in April last year, I think. There have been political changes at the top, as the noble Lord will be aware, with the President resigning and a new President now heading up the interim council. Ultimately, these incredibly complex matters will be resolved only when we return back to the political process. As for DfID’s contribution, I can inform the House that the contribution has increased, and the department has made a total contribution to date of £15 million.
Lord Chidgey (LD)
My Lords, the Foreign Policy Association analysts have stressed that the key challenge is disarming both the Seleka and anti-balaka groups before any possibility of a ceasefire and wider peace agreements can be raised. With the deployment of 500 EU troops sending the right signal, does my noble friend share the EU representatives’ concerns at the limited number of AU troops deployed in the CAR so far? Do the Government agree with the UN’s assessment that at least 10,000 troops, mostly from the AU, will need to be deployed before progress towards a ceasefire and peace agreement can be contemplated?
Baroness Warsi
My noble friend will be aware that matters have progressed through the UN Security Council resolution. The two resolutions passed—in December 2013 and in January this year—have been about strengthening the mandate both for the French Operation Sangaris and also for African Union support through MISCA. I can inform the House that the number of African Union forces deployed has increased since we discussed this matter on 16 January. It is not up to the authorised full operational level of 6,000 but it has gone up over the past few weeks. That is in addition to the French forces and now the potential EU force, depending on completion of the parliamentary scrutiny procedure.
Baroness Kinnock of Holyhead (Lab)
My Lords, the UK Government have rightly voted for the deployment of the EU rapid reaction force for the CAR at the ambassadors’ meeting in Brussels; subsequently at the European Council of Foreign Ministers, where the Secretary of State voted in favour; and then again at the UN Security Council. Can the Minister therefore please, following on from my noble friend’s first Question, give us a progress report on precisely what form of engagement, beyond the 15%, the UK proposes to undertake to ensure that we can soon contribute to the efforts now being made by the African and French peacekeepers?
Baroness Warsi
The noble Baroness will be aware that it was a EUFOR force that we helped and supported. It has a very clear mandate. Part of the discussions in setting that mandate were about individual member contributions, and it was felt at that stage that our contribution would be the 15% towards the core course. At this stage it is important that the matter passes through the parliamentary scrutiny process. I understand that it is in the Commons today, and I think that it will be in your Lordships’ House tomorrow. If that were to pass it could be in time for the Foreign Affairs Council on 10 February. We could then have a further Council direction for the formal deployment.
Children and Families Bill
(10 years, 3 months ago)
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Baroness Anelay of St Johns (Con)
My Lords, there are occasions when it is my duty as government Chief Whip to signify the Queen’s consent. This is just such an occasion. I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Children and Families Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 11: Welfare of the child: parental involvement
Amendment 1
Lord Faulks
“In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not”
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am delighted to be opening the Third Reading of the Children and Families Bill. As the House will appreciate, I have joined the Bill at a late stage but I recognise how much detailed debate and scrutiny there has been in this House over many months. I hope noble Lords will agree that, working together, we have been able to make improvements to a Bill that will have a positive impact for children and young people and their families. There are some further issues where we have been persuaded that legislative changes are appropriate, and others where consequential amendments are required, so the Government tabled amendments on these areas last week. I hope that all of the amendments will be welcome, and that we will make good progress today.
Returning to the amendment, I begin by thanking my noble friend, the noble and learned Baroness, Lady Butler-Sloss, for her contributions and for bringing her experience to the debate on the amendments to Clause 11 and the issue of parental involvement. The clause has been the subject of much debate throughout the passage of the Bill and I am pleased that there has been widespread approval of the intentions behind it. Noble Lords agree that, in most cases, it is best for children to have both parents involved in their lives, but I also understand the concerns of those who have highlighted the need for a clearer understanding of the policy.
We have listened to the concerns raised by noble Lords and I repeat my thanks to the noble and learned Baroness, Lady Butler-Sloss, for her important contributions throughout the consideration of Clause 11. Our aim in tabling this amendment is to retain the principle behind her amendment agreed on Report while ensuring that it will work in practice as noble Lords intend. We have removed the phrase,
“promotes the welfare of the child”,
as it is clear that any involvement that promotes a child’s welfare will serve to further the child’s welfare, which is already captured in the main body of the clause. Retention of this phrase in the amendment would result in repetition of the wording of new subsection (2A) and might, we feel, lead to confusion. The remaining changes to the wording seek to tidy up the drafting while retaining the principle of the original amendment.
Noble Lords have highlighted a need for the clause to be clearly communicated to separating parents. We agree. I want to reassure noble Lords that we are taking steps to address any potential misunderstanding of the clause by parents, in particular through content that is being developed for the Sorting out Separation web app. When Clause 11 becomes law, we will make clear in the information on this web app—and in information about the changes that we disseminate to partner organisations—that the clause does not give parents a right to a particular amount of the child’s time. We will also ensure that the organisations with the HSSF—the Help and Support for Separated Families—kitemark have clear and accurate information about the changes. We recognise the huge expertise and experience of organisations whose work is focused on supporting vulnerable parents. Their input will help to ensure that the messaging and tone of the information that we develop is right, and that the information is properly targeted.
I hope that noble Lords will agree that this amendment meets the concerns that have been raised previously by the House. I again thank the noble and learned Baroness for bringing this important matter to the House’s attention. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I am delighted to put my name to this amendment and I thank the Minister for what he has said, particularly his extremely helpful explanation. I should like, through him, to thank those behind him from the Bill team and the civil servants who were extremely helpful in our discussions. They were very helpful to me and, through me, to this amendment.
I was concerned to have an amendment in these words and I am happy to accept the revision that the Government have made. I am well aware that any amendment that is not a government amendment has to be rewritten; that seems to be a given part of parliamentary life. I am totally happy with that. One of my reasons was that in the absence of legal aid in private family cases, there was a very real danger that the dominant parent would overpersuade the less dominant parent that there was a right to equal sharing of the child’s time after separation. Unfortunately, the Government began by calling this particular clause “Shared parenting”. I am grateful to them for having realised their mistake so quickly and taking it away, but the press picked it up. Consequently, people out there believe that this clause means shared parenting.
I had very useful discussions with an organisation, Families Need Fathers, and I ask the Minister to see that any information that is sent out to various organisations also goes to that one because it has an utterly sensible approach. It is very keen that the non-resident parent should have a proper connection with the child to further the child’s welfare, but recognises that it is not shared parenting. It is an extremely useful organisation and I commend it.
I want to be sure that when the information, assessment and mediation meetings take place, that is also when an explanation of what is meant by the relationship between the child and the non-resident parent is made extremely clear. Having said that, I am happy to support this amendment.
Baroness Howarth of Breckland (CB)
My Lords, my name was also on the original amendment tabled by the noble and learned Baroness, Lady Butler-Sloss. I regret that the phrase,
“the welfare of the child”,
has not been retained. I am pleased that the Government have taken this as far as they have. Emotions run very high during divorce and separation proceedings and where children are used as chattels in the battle. For all the reasons that the noble and learned Baroness has already outlined, there is still a perception that it means shared parenting. I encourage Ministers to continue the battle—with the media, if you like—to ensure that that message does not go forward.
As a previous chair of the Children and Family Court Advisory and Support Service, I know how strongly some fathers will battle on, even if they really do not want care of the child. I say that as someone who has a strong belief in having two parents and had a wonderful father of my own. I always think it is important to say that because, if you are talking about difficult fathers, you need to make it clear that you are pro-fathers. I hope that the Government will do all they can to ensure that it is the welfare of the child that will count when this amendment moves forward.
Baroness Jones of Whitchurch (Lab)
My Lords, first and rather belatedly, I welcome the Minister. I can tell him that he missed a lot of very interesting discussions in his absence, but I am sure that he is well acquainted with where we have reached with the Bill. We look forward to working with him on these issues in the future.
Our names were also added to the amendment in Committee and on Report, so we feel we have a little ownership of it. The noble and learned Baroness, Lady Butler-Sloss, put it very well: there seems to be an established procedure that our wording can never be quite good enough and that it has to be corrected. We accept that the current wording is marginally better in terms of tidying up, so we are grateful for that. As the noble Baroness, Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss, have said, the important thing now is how this is communicated because there was some miscommunication before. We are grateful to hear the plans that the Minister has for publicity because we would stress how important it is to get the message out there by whatever means necessary. Having said that, we are pleased to support the amendment.
Lord Faulks
My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady Howarth, and to the noble and learned Baroness, Lady Butler-Sloss, for their contributions. Nobody claims exclusive possession of this amendment. It has been very much a joint effort and I include the Opposition in that. We take on board what has been observed about the importance of the message getting through. We will undertake to share the information with Families Need Fathers, both for accuracy and tone so that there can be no misunderstandings. The information will also be made clear to parents at the mediation stage in identical terms. I accept that the dissemination of this information is crucially important so that nobody can be under any misapprehensions, as were discussed in earlier debates on the Bill.
Baroness Northover
Baroness Northover (LD)
My Lords, Amendments 2 and 3 will amend Clause 37. In previous debates we have spoken in some detail about the position of social care within the new education, health and care plans. I thank noble Lords who have raised this important issue and in particular the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes, for taking the time to discuss this with us outside the Chamber.
We welcomed the high-quality debate in Grand Committee and on Report on social care and recognise the important issues that were raised. On Report, we committed to bringing back an amendment to include the Chronically Sick and Disabled Persons Act 1970 in the Bill as a means of, first, providing assurance that assessed social care needs for disabled children will be met under the existing duty in Section 2 of the CSDPA; and, secondly, ensuring that the EHC plan includes all the relevant social care services needed by disabled children.
Following Report, there have been further productive discussions between my noble friend Lord Nash, officials, Peers and representatives of the Special Educational Consortium, to ensure the legislation is amended to meet these important aims.
We are pleased to bring forward amendments to Clause 37 to require that the EHC plan includes all services assessed as being needed for a disabled child or young person under 18, under Section 2 of the CSDPA, regardless of whether it relates to the learning difficulty or disability which gives rise to the SEN. The duty for local authorities to provide services to disabled children where it is decided that they are necessary under the CSDPA will apply. We will ensure that the SEN code of practice provides an explanation of the services under Section 2 of the CSDPA that must be included in the EHC plan, and explains the existing duties to provide those services, to give clarity and reassurance to both parents and practitioners.
Specifically, where the local authority decides that it is necessary to make provision for a disabled child under Section 2 of the 1970 Act following an EHC assessment, this amendment will mean that the local authority must, first, identify which provision is made under Section 2 of the 1970 Act; secondly, specify clearly that provision in the EHC plan; and, thirdly, deliver that provision.
In addition, the Bill continues to require that any other social care provision which is reasonably required by the learning difficulty or disability that gives rise to the SEN must be included in the EHC plan. This covers provision made under Section 17 of the Children Act which is not covered by the CSDPA—for example, residential short breaks.
It will also cover adult social care provision for young people aged 18 to 25, where a care plan is drawn up under provisions in the Care Bill. The adult care plan should form the social care part of the EHC plan for young people over 18, and the Care Bill includes a duty to meet assessed needs in the adult care plan. Again, we will set out clearly in the code of practice the social care services that must be included in the EHC plan.
I urge your Lordships to support these amendments at the conclusion of the debate. I beg to move.
Lord Rix (CB)
My Lords, I warmly welcome the government amendments to Clauses 37 and 51 on social care and redress. I thank the Minister and officials most warmly for listening to the arguments from across the House and the sector and for improving the Bill accordingly. The government amendments move us closer to the holy grail of integrated education, health and social care.
Making it clear that the provision of social care is on a statutory footing in their plans will undoubtedly aid children and young people with a learning disability and their families. The change, I hope, will mean that social care is not at risk of being an afterthought or an appendix as is currently the case in many statements.
I further thank the Minister and his officials for listening to us on the issue of a single point of appeal and for the commitment to conduct a review and pilots. As is always the case with these things, clarity is needed in a number of areas on the detail and I understand that the Special Educational Consortium and Every Disabled Child Matters will write to the department on this matter. I confirm with the Minister that the pilots will look at the possibility of hearing both appeals and complaints on education, health and care, not only complaints.
With that said, I thank the Minister again for making important and positive changes to the Bill.
Lord Low of Dalston (CB)
The Minister was kind enough to mention me as having taken part in the discussions on the subject to which the amendments relate, and I follow my noble friend Lord Rix in warmly welcoming the amendments to Clause 37 that the Minister has tabled. They go a long way towards dealing with the point that we raised about the language used to describe the social care required. By referring to the Chronically Sick and Disabled Persons Act, they also go a long way towards addressing the question about enforceability.
To my regret, I have to be somewhere else shortly and will not be able to take part in the debate on the other amendments, so I shall take this opportunity of expressing my appreciation not only to Ministers but to their officials for the extensive way in which they have taken part in discussions throughout the lengthy passage of the Bill, and responded fully to many of the points raised. Obviously it is not appropriate at this point to refer too far forward to other subjects of discussion but, as my noble friend Lord Rix mentioned this, I may perhaps be permitted to say that I too very much welcome the package of government amendments on the review of the appeal process. There were obviously considerable difficulties in implementing the single point of appeal, which we were arguing for, right here and now, so the Government have taken the right course in agreeing to set up a review. I look forward to welcoming the outcome of that review in due course—but that is for another day. Today, I simply warmly welcome both the government amendments and—if I may be permitted to do so—the considerable number of additional amendments that the Government have tabled, and express my warm-hearted appreciation both to Ministers and to the officials who have backed them up in the production of the amendments. I also thank them for their flexible response to the debates on the Bill in general.
Baroness Hughes of Stretford (Lab)
My Lords, I understand what the Minister has done with these amendments, and I welcome the fact that we finally have recognition that, as the noble Lord, Lord Nash, admits in his letter of 31 January, there is an individually owned duty to provide services to disabled children where they are assessed under Section 2 of the Chronically Sick and Disabled Persons Act. I also recognise that through this amendment—theoretically, anyway—the assessed social care needs for disabled children will be met under the existing duty. The amendments will mean that any social care provision which a child or young person is entitled to receive under that social care legislation must be included in the plan.
I had intended to ask the Minister some questions, and it is good that in her opening remarks she put on record what I wanted her to clarify: that local authorities must—she emphasised the word “must”—decide whether a child is eligible for services under the 1970 Act, and must also decide what services the child needs. If they decide that a child needs those services they must put them in the plan—and, crucially, they must deliver those services. The Minister has already put that on the record.
I would like to make two more points. First, the letter from the noble Lord, Lord Nash, also says that he will set out clearly in the code of practice the social care duties that must be included in the EHC plan, and explain the duties to provide those services where they are applicable. Could the Minister say in her summing up whether there are particular social care services that must be provided—and whether there are some, therefore, that may not be provided? Is there a distinction there?
The second point is that in relation to the code of practice the explanation to the local authorities is crucial. As it stands, the Bill, even after this amendment, is a very complex way of framing the respective duties of health, education and social care to provide the services. I certainly would have preferred, for the sake of clarity for those implementing the Act, as it will then be, for social care to be included in Clause 42 rather than Clause 37; Clause 37 deals with EHC plans whereas Clause 42 deals with the duty to deliver the services. I think it would be helpful to local authorities to see very clearly in one place in the Act that all three elements of this new planning process—health, social care and education—have to deliver. Unless the duty on social care achieved by this rather tortuous mechanism is clearly spelt out to local authorities it may not be fully recognised by social workers. Will the noble Baroness comment on that? I welcome the changes.
Baroness Northover
My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baroness, Lady Hughes. When the noble Lords, Lord Rix and Lord Low, who have enormous expertise, became involved in this area, it was immediately apparent to me and to others that we needed to listen very carefully. I appreciate very much their gratitude that there has been this movement. Moving close to a holy grail is quite something. I thank them on behalf of the officials. It is right that the officials’ contribution should be recognised, so I am very happy that the officials are hearing that. I thank the noble Lords on their behalf.
As the noble Lords will have noticed, when my noble friend Lord Nash is persuaded he acts, which is I think reflected in the number of changes that we are seeing in today’s business. He will be dealing with the issue of appeals and redress in the next group.
I am glad the noble Baroness, Lady Hughes, picked up the very clear “musts” in the way that I laid out the responsibilities and the need to deliver the provision that has been agreed. The social care legislation to be explained in the code includes CSDPA 1970, the Care Bill and Section 17 of the Children Act. These pieces of legislation have differing duties, which will be explained clearly. If I need to write further to clarify, I will do so.
I note the number of organisations that are following our debates with enormous care. Whenever they feel we have not done enough, they make sure that we know. I hope that they will help to ensure that they, too, speak to those with whom they are in touch to make sure that the changes are fed through. We will be working very hard to make sure that that code of practice is extremely clear and helpful, both to individuals who might benefit from it, and to practitioners. We are very grateful to the organisations to which the noble Lord, Lord Rix, has referred for their work, and look forward to continuing to work with them. We very much appreciate the consensual way in which we have been able to address this.
“(e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act);(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).”
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I want to speak to the group of amendments beginning with Amendment 4, which are tabled in my name. The amendments follow previous, very constructive discussions in Committee and on Report about the SEND tribunal and redress, with contributions from a number of noble Lords. I thank in particular the noble Lords, Lord Rix and Lord Low, my noble friend Lord Storey and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for their contributions in those debates and subsequent discussions with me and my noble friend Lord Howe.
As noble Lords will have heard me say previously, one of our main aims in introducing the special educational needs clauses in the Bill has been to reduce the adversarial nature of the SEN system. We want children, young people and parents to have a better experience when engaging with the SEN system, particularly when children and young people are being assessed and, if people have complaints, when they are seeking redress.
We have taken action to ensure that people have a better experience of the system. Just recently, the Minister for Children and Families announced a £30 million programme to provide parents and young people with independent supporters to help them through the process of assessment and drawing up EHC plans. The new assessment process which will be brought in by the Bill will be more joined up and participative, with the education, health and social care services being more directly involved and with a more active role for parents, children and young people. Education and health will work together jointly to commission the services that children and young people with SEN will need.
With reference to complaints, we have maintained in the Bill the duty on local authorities to arrange disagreement resolution services so that parents and young people can resolve disagreement with local authorities about authorities’ duties under this part of the Bill, and with schools and further education colleges about their provision for individual children and young people with SEN.
We have introduced consideration of mediation and the opportunity to go to mediation before parents and young people can register appeals with the tribunal. We know that many parents currently find appealing to the tribunal stressful and off-putting, despite the tribunal’s efforts to hold the appeal hearing in an informal venue where the lay person feels comfortable presenting their own case.
Mediation offers parents and young people an excellent opportunity to discuss their concerns about assessments and education, health and care plans in a non-adversarial setting, assisted by a trained mediator. If they are able to reach agreement with the local authority, it means that they or their children will be provided with the support that they want more quickly than if they waited for a tribunal hearing to be arranged. There is no compulsion on the parties to agree, so if parents and young people are still concerned about what special educational provision is being offered, they can appeal to the tribunal.
However, the Bill as currently drafted means that health and care provision is excluded from the disagreement resolution, mediation and appeal processes. Noble Lords have rightly raised their concerns about this. Following the commitment that I gave on Report, we have worked with colleagues at the Department of Health and the Ministry of Justice to develop a package of proposals to address this issue. These amendments provide that package.
The amendments will widen the disagreement resolution and mediation arrangements to cover health and social care and will require the holding of a review of the complaints and redress arrangements for those with education, health and care needs, with the review including pilots to test the tribunal making recommendations about health and social care.
On disagreement resolution and mediation, all local authorities currently have to make disagreement resolution services available. We will widen these so that when an assessment or reassessment is being carried out, or an EHC plan being drawn up or reviewed, parents and young people will be able to ask for disagreement resolution on health and social care complaints as well as on education complaints. As with the current arrangements, engaging disagreement resolution services will be voluntary on both sides—the parent or young person and the local authority or CCG. Similarly we are proposing to widen mediation to cover health and social care. This will mean that after an EHC plan has been drawn up, parents and young people will be able to go to mediation about the health and social care elements even if they did not have a concern about the education element. If they wanted mediation on health or social care, the CCG and local authority, respectively, would have to take part.
On Report we had an extensive discussion about the merits of a review of redress in the system. I am pleased to have tabled Amendment 33 today, which will establish such a review. The Secretary of State and the Lord Chancellor will hold the review to look at how well the redress arrangements under the Bill are working; and more widely at other complaint arrangements relevant to children and young people with education, health and social care difficulties. The review will take account of the Francis and Clwyd reviews of complaints in the health service. We will involve other organisations which have an interest, such as the tribunal, Healthwatch, the Local Government Ombudsman, the Health Service Ombudsman and Parent Carer Forums.
The Secretary of State and the Lord Chancellor will report back to Parliament within three years of the implementation of the SEN provisions making recommendations as to the future of redress and complaint arrangements, including recommendations on the role of the tribunal. We believe that we would have to give sufficient time to build up the evidence on which to make recommendations. However, three years is a maximum and if the review felt it had the evidence in less than that time it could report to Parliament earlier. I estimate that we might have sufficient evidence by the summer of 2016, so I can say that the review would report no less than two years from the implementation of the Bill and no more than three years.
Part of the review will involve pilots testing the tribunal making recommendations on the health and social care aspects of plans where parents and young people have complaints about them and they are already appealing to the tribunal about the special educational element of the plan. This would mean that they could have their complaints about the plan considered as a whole rather than in isolation. The recommendations would not be binding on CCGs and local authorities as social care providers but we would expect them to consider seriously any recommendations the tribunal made. The pilots would begin in the spring of 2015 as the first appeals about EHC plans begin to be heard, be carried out in at least four local authority areas and would last for two years while it builds up evidence on which to base any recommendations about the future role of the tribunal.
I believe that, taken together, this is a strong package which addresses the need to provide parents and young people with a more joined-up way of dealing with complaints which go across education, health and social care. I beg to move.
Lord Storey (LD)
My Lords, my noble friend Lady Northover used the term “consensual”. That is a very appropriate word to use—it is almost the hallmark of the Bill. On every issue we have tried to come to a consensual agreement, understanding the needs of children and families. These amendments are very helpful. I said on Report that if we could not agree a single point of appeal as part of this Bill that would happen in the future without a shadow of doubt.
It seems to me that people who look at this objectively would think, “Wow—amazing. We have a plan for each child that’s joined up for education, health and social care. That’s very progressive legislation”. And then they would scratch their head and say “But if something goes wrong, or you want to make an appeal about something, why are there three separate appeals mechanisms and three different routes?” That is very confusing and intimidating to parents—there should be one point of appeal. That has been the line that many of us have taken all the way through the passage of this Bill.
I am absolutely sure that the Minister and his team have tried to accommodate that view. I have met with various Ministers and civil servants from other departments. I actually think the amendments probably make sense, because the culture of those departments is very different. There would be a danger that if we did not tread carefully, we would make a mess of the appeals process. So yes, we want a single point of appeal in the future. Yes, it makes sense to deal with disagreement in mediation. Yes, it makes sense to have pilot schemes that we can look at. That will be a really important step forward.
I do not intend to speak again today so I will end my comments by thanking the Minister and my noble friend Lady Northover for the incredible commitment and amount of time they have given during the passage of the Bill. They have been prepared to meet at any time, almost at the drop of a hat, any group on any subject. That has been amazing. I also thank the members of the Bill team, who have been absolutely stunning. I do not think I have come across a group of people who have been so prepared to help in a neutral, fair and supportive way—if you can have those three words linked together. I thank all concerned.
Lord Touhig (Lab)
My Lords, in speaking to Amendments 4, 5 and 33, I commend the Minister and his officials for engaging with noble Lords on all sides on the issue of a single point of appeal.
Amendments 4 and 5 move some way towards putting in place the missing piece of the jigsaw: a unified system of redress. Noble Lords, and indeed the Minister, have spoken of the exasperation that many families feel when they are up against a system that too many feel is adversarial. A petition organised by the National Autistic Society secured 15,000 signatures in support of a single point of appeal. I declare an interest as a vice-president of the National Autistic Society. Many families have battled the bureaucratic quagmire to gain access to support that they desperately need.
To date, we have not had a cogent explanation as to why the First-tier Tribunal, which sits in the Health, Education and Social Care Chamber, cannot hear appeals on all three elements of the education, health and care plan. Joining up redress across the three services is undoubtedly a complicated business, and the review of complaints and appeals promised by the Government, together with the pilots testing an expanded role for the tribunal, will provide us with an opportunity to work out how best to achieve our common objective. The consequences of not doing this have been spelt out and the Minister has certainly listened.
Turning to Amendment 33, the review of resolution of disagreements, together with the pilots testing an expanded role for the tribunal, will provide a pivotal opportunity to fully overcome the barriers to creating a unified appeals process. The Government’s policy statement about the review uses different terminology to describe the scope of the review and pilots. The review and pilots must consider the full range of options, including both appeals and complaints. This is vital for ensuring that parents trust the new system and that in the long run it will be truly responsive to the needs of children, young people and their families. The review and the pilots must include the possibility of the tribunal hearing both complaints and appeals, which should be fully explored.
It is welcome that the amendment places a duty on the Secretary of State and Lord Chancellor to lay the resulting report before Parliament. This is an important way of ensuring scrutiny and further informed discussion around these key areas. However, the amendment to Clause 74 does not outline any duty to consider the findings or to reflect the findings in regulations. This leaves the outstanding question as to what duty there will be on the Secretary of State and Lord Chancellor to respond to any recommendation to undertake definitive action as a consequence. In his opening remarks, the Minister went some way to try to explain how that will happen. I will read Hansard carefully and I hope that we will all end up in the same place at the end of the day.
I commend the Government on the substantial progress that has been made in the Bill. However, there is an outstanding concern about the transition from education to adulthood, particularly for young people and young adults with autism. Transition is a key focus of the Bill. At present the draft code of practice makes no reference to the Autism Act 2009. The draft code should signpost professionals towards this Act and the statutory guidance so that they can understand the needs of and their duties towards children and young people with autism. Will the Government consider signposting that within the code of practice and ensure that these reforms are adequately reflected in the transition section of the renewed autism strategy, which the Government are now about to undertake?
On Second Reading, I said that the House had the potential to turn the Bill into a landmark piece of legislation. Noble Lords on all sides have worked hard to ensure that the Bill achieves its stated intention: the improvement of the system of special educational needs for children, young people and their parents. To be fair, the Government have listened and worked constructively with those who sought to make changes. The Bill is intended to create a person-centred system which deploys a joined-up approach to delivering education, health and care needs for children with special educational needs. For that, we are all most grateful.
Baroness Howarth of Breckland
My Lords, I am not very good at accolades, but I just add to what has been said about the Minister’s capacity to listen and respond. It has indeed been remarkable and extremely helpful, so I hope that he will forgive me for asking a few more questions—it is in my nature.
I turn to the question of mediation. I had a number of exchanges with the noble Lord, Lord McNally, about the definition of mediation. I hope that the Minister can say for the record that mediation here has the widest definition. We know that some mediators operate a particular structure of mediation which can be very narrow and unhelpful to some of the programmes that are being developed. There are some innovative programmes of intervention on the mediation spectrum, and I hope that those are what we will have under the helpful government amendments.
On a rather unhappy note, all those provisions will be costly at a time when local government is facing further cuts. I know that the Local Government Association—I declare an interest as vice-president—is concerned about the implications. With the best will in the world, those who wish to provide services are sometimes inhibited from doing what they would like by the sheer cost. I noticed that the Minister mentioned a sum in his introduction. Perhaps he could clarify that—it went rather quickly across my thinking. We need to know whether some of the money will be clearly ring-fenced for local authorities to use for those very specific pieces of work.
On the review of tribunals—again, I think this is utterly remarkable—if the Government are able to achieve that joined-up piece of work, then we are well on the way. I am not sure that I would call it the holy grail of joined-up services, but it is what we have all been working towards for a very long time, and we are much further along the track than we have ever been.
I hear what the Minister said about the end date, but can he say when the start date is likely to be? The start date is really important in relation to the amount of time that will be available before the end of the two or three years, whichever is to be proposed.
Again, I add my gratitude to that of others for what we have achieved in the Bill. I hope that the Minister will take as much interest in its implementation as in its legislation.
Baroness Hughes of Stretford
My Lords, it is always understandable, in our relief at seeing positive improvements to the Bill, of which this is one of the most important—we talked about social care before—that noble Lords welcome them, and so do I. However, I am mindful of the persistence and doggedness that it took to get to this point not only here but in the other place. I do not want to take anything away from the change, which is very positive, but rewriting the history of the Bill as being one of consensus is probably a step too far.
I welcome the amendments that the Government have brought forward today and I understand the Minister’s desire to see whether mediation can be an effective alternative to a formal appeals process. I make no criticism of that, as it is entirely understandable, and the amendments that apply to mediation will make it available across the spectrum of health, education and social care.
I have three questions for the Minister: one on mediation and a couple on the review and pilots. I read carefully the amendments on mediation and particularly noted the requirement that the mediator must be independent of the agency providing the services with which the parent or young person disagrees. That point of independence is absolutely right and understandable, but can the Minister say how this will work in practice? One of the things that concerns me is that, if a parent or young person wants to contest, say, both health and social care elements of the plan, it is very important that they should have one mediator who is independent of both the NHS and the local authority. As the noble Lord, Lord Storey, has just said, our debates around this issue have laboured the need for a single avenue of redress for families. That applies just as much to the mediation process as it would to the formal appeal process, as we were arguing.
I ask that question because there are of course separate amendments for mediation in health and in social care. I want to ensure that, when the time comes, which may be when regulations are considered, there will be the opportunity to consider this level of detail and to make sure that families are not relating to two or three separate mediators, plus the First-tier Tribunal, because in a sense that would not achieve the spirit that we sought in the debate on the issue.
My other points concern the review and the pilots. I welcome Amendment 33, which I think takes up the amendment that we tabled on Report about the need for this to be looked at in some detail. It may be three years’ time before we have the results. I hope that there are enough of us still around to see the outcomes of those pilots and the review to make sure that we can use the results productively. In that regard, can the Minister say whether during that time he envisages that there will be some kind of oversight of the pilots and the review process? Could there be some interim findings or representation from interested parliamentarians on some kind of review board or body, with sector representatives? He mentioned parents and young people as well. For us to approve this now and then wait three years is a long time to see what, if anything, is happening. Some oversight of that process would be very welcome.
Lord Nash
My Lords, I thank my noble friend Lord Storey for his kind words. On the point made by the noble Lord, Lord Touhig, about the scope of the review, I assure him that we will not rule out any conclusions from it. We are currently revising the code and will engage with all interested parties, including the National Autistic Society, about their concerns with its drafting.
Concerning the points made by the noble Baroness, Lady Howarth, we will have a wide definition of mediation. In my opening remarks, I mentioned that there would be £30 million for independent supporters. That money will go through voluntary and other organisations, rather than to local authorities, but in addition we are giving local authorities £70 million to support implementation of the reforms.
On the start date for the review, the pilots will begin in the spring of 2015 when the first EHC plan appeals will be heard. We expect the review to begin at the same time and, if possible, slightly earlier.
As far as the points made by the noble Baroness, Lady Hughes, are concerned, when I saw the period of three years I probably had the same feelings that she has. They say that there is only one thing more dangerous than a young person in a hurry, and that is an old person in a hurry. Nevertheless, we will try to get the result as soon as we can, but it would not be sensible to try to have it earlier than in two years’ time.
I am very happy to discuss the make-up of the review and who is on it. It is important that that is seen to be as objective as possible. I am grateful for the noble Baroness’s remarks about us perhaps reaching an eventual consensus on this matter.
Again, I thank all noble Lords who have participated in this aspect of the Bill, and I hope that they will be able to continue working with the departments and offer their expertise as we shape the review.
“(4A) Regulations under subsection (4)(c) may include provision conferring power on the First-tier Tribunal, on determining an appeal against a matter, to make recommendations in respect of other matters (including matters against which no appeal may be brought).”
“Right to mediation
(1) This section applies where—
(a) a decision against which an appeal may be brought under section 51 is made in respect of a child or young person, or(b) an EHC plan for a child or young person is made, amended or replaced.(2) Before the end of the prescribed period after the decision is made, or the plan is made, amended or replaced, the local authority must notify the child’s parent or the young person of—
(a) the right to mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc), and(b) the requirement to obtain a certificate under section 52 before making certain appeals. (3) If the parent or young person wishes to pursue mediation under section (Mediation: health care issues) or (Mediation: educational and social care issues etc), he or she must inform the local authority of—
(a) that fact, and(b) the issues in respect of which he or she wishes to pursue mediation (“the mediation issues”).(4) If the mediation issues are, or include, the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the parent or young person must also inform the local authority of the health care provision which he or she wishes to be specified in the plan.”
“Mediation: health care issues
(1) This section applies where—
(a) the parent or young person informs the local authority under section (Right to mediation) that he or she wishes to pursue mediation, and(b) the mediation issues include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.(2) The local authority must notify each relevant commissioning body of—
(a) the mediation issues, and(b) anything of which it has been informed by the parent or young person under section (Right to mediation)(4).(3) If the mediation issues are limited to the health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan, the responsible commissioning body (or, where there is more than one, the responsible commissioning bodies acting jointly) must—
(a) arrange for mediation between it (or them) and the parent or young person,(b) ensure that the mediation is conducted by an independent person, and(c) participate in the mediation.(4) If the mediation issues include anything else—
(a) the local authority must—(i) arrange for mediation between it, each responsible commissioning body and the parent or young person,(ii) ensure that the mediation is conducted by an independent person, and(iii) participate in the mediation, and(b) each responsible commissioning body must also participate in the mediation.(5) For the purposes of this section, a person is not independent if he or she is employed by any of the following—
(a) a local authority in England;(b) a clinical commissioning group;(c) the National Health Service Commissioning Board.(6) In this section “responsible commissioning body”—
(a) if the mediation issues in question are or include the health care provision specified in an EHC plan, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person;(b) if the mediation issues in question are or include the fact that no health care provision, or no health care provision of a particular kind, is specified in an EHC plan, means a body that would be under a duty to arrange health care provision of the kind in question if it were specified in the plan.”
“Mediation: educational and social care issues etc
(1) This section applies where—
(a) the parent or young person informs the local authority under section (Right to mediation) that he or she wishes to pursue mediation, and(b) the mediation issues do not include health care provision specified in the plan or the fact that no health care provision, or no health care provision of a particular kind, is specified in the plan.(2) The local authority must—
(a) arrange for mediation between it and the parent or young person,(b) ensure that the mediation is conducted by an independent person, and(c) participate in the mediation.(3) For the purposes of this section, a person is not independent if he or she is employed by a local authority in England.”
“Mediation: supplementary
(1) Regulations may make provision for the purposes of sections (Right to mediation) to 52, in particular—
(a) about giving notice;(b) imposing time limits;(c) enabling a local authority or commissioning body to take prescribed steps following the conclusion of mediation;(d) about who may attend mediation;(e) where a child’s parent is a party to mediation, requiring the mediator to take reasonable steps to ascertain the views of the child;(f) about the provision of advocacy and other support services for the parent or young person;(g) requiring a local authority or commissioning body to pay reasonable travel expenses and other expenses of a prescribed description, up to any prescribed limit;(h) about exceptions to the requirement in section 52(3);(i) about the training, qualifications and experience of mediators and mediation advisers;(j) conferring powers or imposing requirements on local authorities, commissioning bodies, mediators and mediation advisers.(2) In section 52 and this section “mediation adviser” means an independent person who can provide information and advice about pursuing mediation.
(3) For the purposes of subsection (2), a person is not independent if he or she is employed by any of the following—
(a) a local authority in England;(b) a clinical commissioning group;(c) the National Health Service Commissioning Board.(4) In this section “commissioning body” means a body that is under a duty to arrange health care provision of any kind.”
“(2A) The disagreements within this subsection are those about the exercise by the local authority of its functions relating to EHC needs assessments, the preparation and review of EHC plans, and re-assessment of educational, health care and social care needs, where the disagreement is between—
(a) the local authority and a responsible commissioning body, or(b) a responsible commissioning body and the parents of children, or young people, in the authority’s area.”
“(5A) For the purposes of subsection (5) a person is not independent if he or she is employed by any of the following—
(a) a local authority in England;(b) a clinical commissioning group;(c) the National Health Service Commissioning Board.”
““responsible commissioning body”, in relation to any particular health care provision, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person concerned.”
Baroness Northover
“(ba) section 73;”
Baroness Northover
My Lords, this group of amendments builds upon those that we brought forward on Report and, we hope, address some of the important points raised by noble Lords during that debate. We are grateful to those noble Lords who have continued to raise the important issue of support for young offenders with EHC plans in custody. I particularly thank the noble Lord, Lord Ramsbotham, for his expert and, as ever, very determined contributions throughout and for his continued determination to ensure this small but highly vulnerable group of children and young people get the support that they need.
I am pleased that noble Lords accepted the Government’s amendments on Report. That means that today’s debate is, I hope, starting from a strong position. The Bill already ensures that: young offenders, their parents and professionals working with them can request an assessment for an EHC plan and those assessments can now start in custody; EHC plans will provide up-to-date, current information on entry to custody, owing to the requirement for local authorities to maintain the EHC plans of those under 18 who are not in education, employment or training for any reason; both home local authorities and relevant NHS health service commissioners are under a duty to use their best endeavours to arrange the education and health provision set out in an EHC plan for children and young people in custody; EHC plans must be kept by the home local authority while a young offender is detained and must be reviewed and maintained again immediately on release; and both youth offending teams and relevant custodial institutions are required to co-operate with the local authority.
This is a significant set of improvements over the current system. However, now we want to go even further to address the remaining concerns expressed by noble Lords during our previous debate on this subject—namely, that “best endeavours” seemed, certainly in the mind of the noble Lord, Lord Ramsbotham, not to create a strong enough obligation on local authorities and health commissioners, and that youth custodial institutions should be required to have regard to the code of practice.
Following productive discussions between our officials, the Special Educational Consortium and the Standing Committee for Youth Justice, we are delighted to be able to say that through Amendments 28 and 29 we are strengthening the “best endeavours” duty so that it now says that local authorities and relevant health commissioners must arrange appropriate special educational and appropriate health provision.
Not only that, but Amendments 30 and 31 amend the definition of “appropriate provision” so that it is clear that local authorities and health service commissioners must first seek to arrange the provision that is in an EHC plan. Where that is not practicable, they will arrange provision that corresponds as closely as possible to the EHC plan. Where what is in the EHC plan is no longer appropriate, the local authority or NHS health commissioner must arrange an alternative that is appropriate.
Amendments 22 and 32 also require both relevant youth accommodation and youth offending teams to have regard to the code of practice. This means that we can set out in statutory guidance how we expect them to fulfil their duties to co-operate with the local authority in ensuring that children and young people with EHC plans receive the support they need while in custody.
These changes will be further strengthened in future by commitments in the Ministry of Justice’s response to the Transforming Youth Custody consultation published in January. I know that my noble friend Lady Walmsley—I see that she is not in her place, but I hope she will hear this—will be pleased to hear that, in response to an e-mail from her, this document makes it clear that the arrangements for the new providers of education in young offender institutions, due to be in place by November this year, will require them to co-operate with local authorities in regard to young offenders with EHC plans. They will also retain the existing responsibilities that the current providers have for identifying and supporting young offenders with SEN. The document also makes it clear that identification and support for those with SEN will be part of the new secure colleges that the Government will set up through forthcoming legislation.
Finally, Amendment 34 will remove Clause 76, previously Clause 70. Due to an oversight, the amendment to delete this clause was inadvertently not moved following the debate on Report. I am sure that that was entirely my fault.
Taken together, these amendments will strengthen the changes that noble Lords agreed on Report and will ensure that children and young people with EHC plans in custody will receive the support that they need. I hope that noble Lords will be happy to support them.
Lord Ramsbotham (CB)
My Lords, I am extremely grateful to the Minister for what she has just said, and also for the many discussions and debates that we have had with both Ministers and officials during the Bill’s passage. I am extremely grateful for what has been done. Not only is it a great advance on what was there before but it has the benefit of building on the experience of many years ago regarding what could and should be possible in young offender institutions for people with problems that have otherwise gone unaddressed. I am particularly grateful for the movement that has been made since Report and for the strengthening of the requirement on local authorities to make certain that the change has happened.
I am also extremely grateful for two other things. The first was the Minister’s assurance that those of us who are interested in this subject, including people who are far more expert in it than I am, will be involved in the preparation of a code of practice which will be such an extremely important document in the future. The second was her assurance that the Ministry of Justice will be involved in those discussions as well. As I have explained before, there have been many good initiatives around the country but the Ministry of Justice’s response to them has not been all that was desired and they have been dropped.
Finally, I am grateful for the platform that has been provided for youth offending teams. A disturbing fact is that few commissioning groups in the country appear to realise that they have a responsibility for things such as mental health treatment of people who are undergoing community sentences. The fact that that is on the statute book with a clear “must” will provide just the stimulus that is needed to pull people together and make things better. I really am grateful for all the work that Ministers and officials have done on this part of the Bill.
Baroness Warnock (CB)
Having put my name to the original amendment to remove the then Clause 70, perhaps I may also add my gratitude. This is a real step forward in the education of young people in custody—not just people with special educational needs, which most of them have in any case. In general, it is a landmark move forward, so I express my appreciation to the Government for that.
Baroness Hughes of Stretford
My Lords, if you consider the amendments on young offenders that will have been added to the Bill in total when it is enacted and compare that to the position when we started—the complete exclusion of young offenders from any of the provisions on special educations needs—you can appreciate the enormous journey that has been made. I welcome that the Government have, in the end, listened to the arguments that were made by Members across the House. This issue has concerned many noble Lords on all Benches but I want to acknowledge in particular the expertise and leadership that the noble Lord, Lord Ramsbotham, brought to the issue, corralling us all together and making sure that we ultimately got the changes that we see today—which I very much welcome.
Baroness Northover
Noble Lords will know what a huge relief it is to any Minister when the noble Lord, Lord Ramsbotham, expresses his pleasure at something we have done. I know how much he likes the word “must”, and I am extremely pleased to have been able to deliver this word to him. I thank the noble Baronesses, Lady Warnock and Lady Hughes. We are well and truly corralled for very good reasons, and I am very pleased that the noble Lord is content with where we have got to and with the current and future involvement of the Ministry of Justice. I hope that noble Lords will support these amendments. I beg to move.
“(7A) Where, by virtue of subsection (7), the appropriate person has informed the mediation adviser that he or she wishes to pursue mediation with the home authority—
(a) the adviser must notify the authority, and(b) the authority must—(i) arrange for mediation between it and the appropriate person,(ii) ensure that the mediation is conducted by an independent person, and (iii) participate in the mediation.For this purpose a person is not independent if he or she is employed by a local authority in England.”
“(8) Regulations under section (Mediation: supplementary) may make provision for the purposes of subsections (7) and (7A) of this section, and accordingly section (Mediation: supplementary) has effect for those purposes with the following modifications—
(a) the references in subsection (1) to commissioning bodies are to be ignored;(b) the reference in subsection (1)(e) to a child’s parent is to be read as a reference to the parent of a detained person who is a child;(c) the reference in subsection (1)(f) to the child’s parent or young person is to be read as a reference to the appropriate person;(d) in subsection (3), paragraphs (b) and (c) are to be ignored;(e) subsection (5) is to be ignored.”
(b) if it appears to the home authority that it is not practicable for that special educational provision to be provided, educational provision corresponding as closely as possible to that special educational provision, or”
(b) if it appears to the detained person’s health services commissioner that it is not practicable for that health care provision to be provided, health care provision corresponding as closely as possible to that health care provision, or”
“(ga) youth offending teams;(gb) persons in charge of relevant youth accommodation;”
“Review of resolution of disagreements
(1) The Secretary of State and the Lord Chancellor must carry out a review of how effectively disagreements about the exercise of functions under this Part are being resolved.
(2) The Secretary of State and the Lord Chancellor must prepare a report on the outcome of the review.
(3) The Secretary of State and the Lord Chancellor must lay the report before Parliament before the end of the period of three years beginning with the earliest date on which any provision of this Part comes into force.”
“Purchase of tobacco etc. on behalf of persons under 18
(1) A person aged 18 or over who buys or attempts to buy tobacco or cigarette papers on behalf of an individual aged under 18 commits an offence.
(2) Where a person is charged with an offence under this section it is a defence—
(a) that the person had no reason to suspect that the individual concerned was aged under 18, or(b) in a case where the person has bought or attempted to buy cigarette papers, that the person had no reason to suspect that the individual concerned intended to use the papers for smoking.(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) A local weights and measures authority in England and Wales must enforce the provisions of this section in its area.
(5) Section 9 of, and Schedule 1 to, the Health Act 2006 (issue of fixed penalty notices in relation to certain smoking related offences) apply in relation to an offence under this section as they apply in relation to an offence under section 6(5) or 7(2) of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person authorised by a local weights and measures authority (whether or not an officer of the authority) in writing, either generally or specially, to act in matters arising under this section.(6) Section 11 of, and Schedule 2 to, the Health Act 2006 (offence of obstruction of enforcement officers and powers of entry etc) apply for the purposes of this section as they apply for the purposes of Chapter 1 of Part 1 of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person (whether or not an officer of the authority) authorised by a local weights and measures authority in writing, either generally or specially, to act in matters arising under this section; (c) references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;(d) section 11(5) is to be ignored;(e) paragraph 10 of Schedule 2 is to be ignored.(7) “Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I shall speak also to Amendments 36 to 41 and 45.
I am very pleased to have tabled this package of government amendments aimed at protecting young people from tobacco and nicotine addiction, which seek to do four things. They would introduce a regulation-making power to prohibit the sale of nicotine products to persons under the age of 18; would create a new offence of the proxy purchasing of tobacco; would make a technical change to the standardised packaging amendments that were passed by your Lordships on Report; and would amend existing smoke-free legislation in the Health Act 2006 to deliver the regulation-making powers on smoking in cars carrying children, as was your Lordships’ wish on Report, but with a more workable legislative framework. The amendments come at a late stage in the passage of the Bill, for which I apologise.
I will deal first with the provisions on the age of sale of nicotine products. There has been widespread support for the introduction of an age-of-sale restriction from the public health community and from the electronic cigarette industry. Responsible manufacturers of e-cigarettes are clear that their products are intended for people over the age of 18. I wrote to all noble Lords on 27 January to explain the key elements of this proposed new clause. I will summarise the main provisions. They provide the Secretary of State with the power to make regulations to prohibit the sale of nicotine products to persons under the age of 18. At present there is no general legal restriction on people under the age of 18 buying nicotine products, including electronic cigarettes, which are also known as e-cigarettes. The regulations to be made under this power would be subject to the affirmative resolution procedure to ensure that Parliament has the opportunity to scrutinise how the regulations would operate in practice before they were made.
This measure does not capture tobacco products, which are already subject to law restricting their sale to persons aged 18 and over. The penalty for committing the offence of selling a nicotine product to a person under 18 years of age would be a fine not exceeding level 4 on the standard scale, which is currently £2,500. We also have very little evidence on, for example, the impact on children’s developing lungs of their use of products such as e-cigarettes. The public health community is concerned that nicotine products could act as a gateway into smoking tobacco, as well as undermining the Government’s efforts to reshape social norms around tobacco use. We need to remember that young people can rapidly develop nicotine dependence and that nicotine products deliver nicotine and cause addiction.
Attempts were made to include an age-of-sale provision applicable throughout the EU in the revised European tobacco products directive, but this was not achieved. We therefore want to do this domestically through this Bill. I hope noble Lords will understand why we are using the opportunity the Bill provides to take these additional steps. It is important that we act now to manage the risk of a gateway effect into tobacco use and the development of lifelong addictions to smoking.
Lord Faulkner of Worcester (Lab)
First, I thank the Minister for his kind words about my signing all the amendments in this group with the exception of Amendment 41, which I did not sign not because I disagreed with it—I think that it is absolutely excellent—but because other noble Lords put their names to it ahead of me and the list was full when I asked whether I could add mine.
I start with a general point, which I cannot resist making. I first went to see the Public Bill Office after Second Reading last July and asked its advice on whether there was any possibility of including a clause on standard packaging for tobacco products as a child protection measure in the Bill. I never dreamt that by Third Reading the Bill would contain such a range of powerful tobacco control measures, especially in view of the fact that there was no reference to a single one when the Bill came to us from another place.
I particularly thank the noble Baronesses, Lady Finlay of Llandaff and Lady Tyler of Enfield, and the noble Lord, Lord McColl, for agreeing to sign our original cross-party amendments on standard packaging. I commend the noble Lord, Lord Ribeiro, for persisting with his campaign to ban smoking in cars when children are present, and my right honourable friend Andy Burnham and my noble friend Lord Hunt of Kings Heath for their support on all these issues. I particularly thank the Health Minister, the noble Earl, Lord Howe, whose courtesy, willingness to listen and determination to get the policy right nobody in this House could possibly fault. I also mention in dispatches the noble Lord, Lord Taylor of Holbeach. As the Minister said, he indicated on the second day of the Report stage of the Anti-social Behaviour, Crime and Policing Bill, as recently as 14 January, that he had an open mind on proxy purchasing, although he was not as forthcoming as the Minister has been with his amendment today.
When the Government come to implement the policy on proxy purchasing, I wonder if they would like to look at one element of the experience in Scotland. When Scotland introduced a law on proxy purchasing in October 2011, it brought in a retailer registration scheme at the same time. This is a low-cost licensing scheme that operates in conjunction with fixed penalty notices and gives the courts the ability to impose banning orders. It requires all tobacco retailers to be registered on one national register in order to sell tobacco. The costs to the industry of the scheme are minimal and are limited really to the one-off labour cost needed to fill out the form. Costs to the Government include the initial set-up costs of advertising and marketing to give retailers information about the need to comply with the scheme and the process to be undertaken, and the cost of a database to hold national-level information on retailers. Such a scheme would give local enforcement agencies a very valuable weapon in tackling illicit trade and in enforcing other tobacco control regulations—for example, the ban on sales to minors. It would also help to protect the great majority of honest retailers from unfair competition from the unscrupulous minority who are prepared to deal in illicit products.
Finally, I go back to the speech from the noble Lord, Lord Taylor of Holbeach, on the anti-social behaviour Bill and commend one sentence in it that I have not heard from any Minister before. He said:
“The Government are determined … to stamp out smoking as a habit, particularly among young people, so they are being proactive”.—[Official Report, 14/1/14; col. 141.]
Indeed they are and the amendments before us today are proof of that. They are an indication of just how far we have come and noble Lords in all parts of the House deserve great credit for the contribution that they have made to public health by adding these vital tobacco control amendments to this Bill.
Baroness Tyler of Enfield (LD)
My Lords, I, too, would like to say a few words about Amendment 41. I also was one of those disappointed to get there too late to add my name to it. I thank the Minister for listening and for everything that he has done to get us to the position we are now in. The amendment he has brought forward with other noble Lords is laudable, and it is right that we are working hard to make sure that it is legally workable. I pay tribute to him for that.
I have a couple of other comments. I, too, am so pleased that this is part of a comprehensive package of tobacco control measures—something to try to prevent young people picking up that nicotine addiction that too often leads to dependency early in life. This is a landmark set of measures, both for child protection and for the public health of young people. I thank everyone who has been involved in that. It also demonstrates what we can do in your Lordships’ House when we work in a non-partisan way. The discussions and the debates that we have had across the House and across Benches have brought home to me how good it can be that we can work in this way.
Finally, on enforcement and workability—I made this point on Report—I am very pleased that there will be opportunities for both Houses to discuss methods of implementation, provided we get to that stage. There are many people who have a lot of expertise to bring to bear. Only this morning, I was looking at a Canadian Cancer Society review from this year which listed the countries which already have bans of this type in place. It includes Canadian provinces, Australian states, six of the US states, Mauritius, South America, Bahrain and Puerto Rico. I say that to emphasise that it can be done. It is being done in other parts of the world. Of course, they all have their own ways of doing things. I suspect that none of them will be directly comparable, but it clearly can be done. The fact that there is so much experience elsewhere in the world is something that we should take account of when we have those follow-up discussions on implementation.
Baroness Finlay of Llandaff (CB)
My Lords, it has been an enormous privilege to be part of the movement across all Benches in this House to do something about controlling the use of tobacco, particularly in relation to child protection. Tobacco control has for many years been something that medicine, the discipline from which I come, has been arguing and pushing for. It is with a great sense of relief that I see these amendments before us today.
I thank everyone who has contributed to these and previous debates, but I especially thank the noble Earl for the way in which he has remained in contact, listened to discussions, been very open to suggestions and has really taken on board a rapidly changing landscape in the atmosphere of this House, which has supported these moves. I would have added my name to the other amendments had I not been so busy checking the one to which I did add my name before the time ran out.
The issue of e-cigarettes is really important; they have crept up on us rapidly. They give a bigger nicotine hit, so users say, than cigarettes and they have flavourings that are likely to attract young people. So, moves towards controlling them as well are really important. I know that the Chief Medical Officer has looked at this carefully and is concerned. I share those concerns, as do many others in my discipline of medicine. I hope that in the years ahead we will see a drop in cigarette and tobacco-related diseases presenting in our A&E departments, GP surgeries and hospitals.
Lord Ribeiro (Con)
My Lords, I add my appreciation to my noble friend the Minister for getting us to the point where we are today. Little did I wonder when I introduced my Private Member’s Bill way back in July 2012 that we would actually be at this position. As the noble Baronesses, Lady Finlay and Lady Tyler, rightly said, this has been a cross-party initiative right across the House. I am grateful for the conversations that I have had with my noble friend and for the way in which the Government have shifted their position both publicly and privately. That is very rewarding.
Thanks to the Tube strike today, I came in by taxi. The best way to find out what the average member of the British public thinks about anything is to ask your taxi driver. I noted that he had a no-smoking sign in his cab. I asked, “What do you think about this Bill on smoking in cars that we might be able to resolve today?”. He held up a packet of cigarettes, to my surprise, and said, “I’m a smoker. I don’t smoke in the cab, I go outside to smoke. Why would anybody want to smoke in a car with children present? Why would they?”. That was his reaction. When we know that 85% of smokers think that it is bonkers to smoke in a car when children are present, we realise that we have finally made the point that this is more about child protection—protecting young children with young lungs, who are likely to end up with long-term respiratory problems—than it is about removing personal liberties.
I hope that the Government will continue to re-energise this educational programme because it is that 15% of the public who do not recognise the importance of not smoking in cars that we need to get at. I have every confidence that the Government will do so. Legislation can always be used as a blunt instrument but it is interesting that, since the seat-belt legislation was brought in, the current compliance rate is more than 90%. Some 95% of people who clunk-click would never even think of driving off without putting their seat belts on. In years to come, I hope that people will wonder why they ever smoked in cars with children present.
Baroness Howarth of Breckland
My Lords, somehow I never manage to get my name on amendments, but it never prevents me from speaking. I welcome the package of measures being proposed. Ever since I introduced the amendment that stopped smoking in the Peers’ Guest Room, I have been one of the team quietly working towards the place that we have now reached. The Minister must forgive me if I ask him to say where we are and when we will reach the point at which all these measures will be implemented.
I muttered to the noble Baroness, Lady Finlay, “Is it going to happen, or not? Or is it simply a power that a Minister will have?” Can the Minister give us a clearer picture as to when it will happen? I am still waiting for the shutters to go down in 2015 on tobacco in small shops. Every year it means that more children are not protected by all the methods that he wishes to introduce.
I have watched the noble Earl’s own journey. I believe he has always wanted to be here. He has taken us steadily, and somewhat cleverly, through to a point where the industry which was vociferous in its opposition has no representatives present here today. That is a very interesting position to have reached. I am immensely grateful for that but, with my usual impatience, I want to know when the implementation date will be.
Lord Stoddart of Swindon (Ind Lab)
My Lords, I am not going to break the consensus but I must declare an interest—as I did previously—in that I am an associate member of the Lords and Commons Cigar and Pipe Smokers’ Club.
This House has made its decisions on these matters and it is not for me, nor anyone else, to say that it was wrong, particularly since one of the amendments was voted on and carried. The House of Commons has yet to consider these amendments and I have no doubt that it will do so in its wisdom and in the knowledge that one of its duties is to protect all minorities, as well as majorities.
The noble Lord, Lord Faulkner of Worcester, helpfully quoted a Minister as saying that the policy of the Government was to stamp out smoking altogether. That is fair enough, but if that is their view—if they believe that smoking is so dangerous that it ought to be stamped out altogether—why do they not bring forward a Bill to make tobacco smoking illegal? I have asked that question before; I have never had an answer, and I doubt very much whether I am going to get an answer today. Those who take to smoking provide the Treasury with about £10.5 billion in extra revenue every year. An honest Government—a Government who put principle before financial gain—would say that this is so dangerous that we ought not to allow it to happen. I do not think that the Government will say that today.
I wish to ask one or two questions for clarification in relation to Amendment 41. The noble Earl has said “smoking in cars” several times today, but that is not what the amendment says. Amendment 41 refers to where a person under the age of 18 is present “in the vehicle”. There are many more vehicles than cars. I do not want to be helpful to the Government, but I am being helpful in pointing this out.
This clarification is necessary because, of course, there are other kinds of vehicle. What about motor caravans? They are not cars—they are big lorries, if anything. Is smoking to be banned in a motor caravan, which is a living space? A towed caravan is also a living space. Will they be affected? What about rickshaws? Smoking in cabs, incidentally, is already banned, if I am not mistaken, under previous legislation. We do not have a ban on rickshaws but we do have rickshaws in London. Are they vehicles? These matters ought to be clarified.
Another kind of vehicle that someone raised with me—I did not think of it myself—is a motor launch. Is that a vehicle? Will smoking be banned in launches when children are present?
These matters need clarifying and the Government will have the opportunity in another place to make those clarifications. I hope that I have been helpful.
Baroness Masham of Ilton (CB)
My Lords, I welcome these amendments and I congratulate the noble Earl and all concerned. With this legislation there must be education. Smoking is a public health matter and I hope that local authorities will take up these measures with great energy and that the other place will accept them.
Lord Hunt of Kings Heath (Lab)
My Lords, this is an impressive suite of measures and we are all grateful to the noble Earl for bringing them forward today. My noble friend Lord Faulkner referred to the early discussions that he and colleagues across the House had with the Public Bill Office to ensure that it was in order to bring an amendment on smoking within the Bill, and so, with a little flexibility and the door slightly ajar, a great number of substantive changes have been made. The noble Lords who took that initiative deserve a great deal of credit.
I wish to speak principally to Amendment 41, to which I have added my name, in relation to the banning of smoking in cars, I say to the noble Lord, Lord Stoddart, when children are present. The main thrust of my amendment which was agreed to on Report has now been incorporated within the Government’s amendment. This will enable it to be sent to the House of Commons in a watertight fashion, where I hope it will be accepted. It follows the principle we have come to that there ought to be a ban on smoking in cars when children are present. As I acknowledged on Report, the details need to be consulted upon, and the Government have the ability to do that because of the regulation powers contained in the amendment.
Many noble Lords have been thanked today. I wish to add my thanks to them, particularly my noble friend Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord Ribeiro, for their work in this area. I should also mention the British Lung Foundation, which has done outstanding work to support this initiative, and of course also ASH, which has given general support on a number of these important amendments. I hope noble Lords will also acknowledge the work of my honourable friend Mr Alex Cunningham MP, who pioneered the Private Member’s Bill in the other place on which we have built our work.
Earl Howe
My Lords, I am grateful to noble Lords from all parts of the House for their support for the government amendments, and I thank all noble Lords who have been so energetic and assiduous in this area of policy for the action that they have taken, and the focus that they have afforded to Ministers to promote the health of young people under 18 in this respect. I completely concur with the noble Baroness, Lady Finlay, who told us how addictive nicotine is: tobacco use remains the single biggest preventable cause of death in England. We surely must do all we can to encourage communities to make tobacco less desirable and less accessible, if we are to stop the perpetuation of smoking from one generation to the next.
My noble friend Lord Ribeiro was right, too. The purpose of the amendments is to protect children and young people from the harms of tobacco use and a lifetime of nicotine addiction. I was intrigued and interested to hear from the noble Lord, Lord Faulkner, about the retailer registration scheme in Scotland, and I do indeed undertake to look at it.
The noble Baroness, Lady Howarth, asked me to be a little more precise about the timetable for implementation across the piece. As regards nicotine products, we have not taken a decision on timing. It will be partly dependent on the timetable for laying and making regulations, but the Government want to move as quickly as possible to get the provisions in place. As regards standardised packaging, the timetable will be wholly dependent on the decision the Government take once we have received Sir Cyril Chantler’s report, and we have not taken that decision yet. On proxy purchasing, we need to engage with stakeholders appropriately. It is very difficult for me to give the noble Baroness a timetable because there are technical issues to be looked at; indeed, we would want to examine the experience of Scotland. But we are clear that this is a measure that should be proceeded with.
On smoking in cars, I think my answer has to be: one step at a time. Questions of whether the Government would move forward with legislation or what the detail of the regulations would include are debates to be had at another time, once both Houses have expressed their will on the principle. It would be inappropriate for me to express firm views in advance of those discussions.
That leads me to the questions posed by the noble Lords, Lord Hunt and Lord Stoddart. The noble Lord, Lord Stoddart, asked about the definition of vehicles. The answer is that we have allowed ourselves the scope to define in regulations, should regulations be laid, what kinds of vehicles should be covered. The noble Lord, Lord Hunt, asked me to confirm that the police could be involved in the enforcement of this offence should it be created. I can confirm that the wording of the amendment that we are tabling today allows that scope but, as I have indicated, we need to engage with the police and other stakeholders to determine exactly how this would work.
Finally, the noble Lord, Lord Stoddart, posed the question that he has asked on a number of occasions as to why the Government do not simply make smoking itself illegal. My answer has to be that almost 20% of adults in England smoke and it would be difficult if not impossible to criminalise 7 million people at a stroke. We want above all to help current smokers to quit and to stop young people taking up smoking in the first place. We know that two-thirds of smokers want to quit but their addiction makes doing so very difficult. That is the approach we are taking.
Lord Stoddart of Swindon
The Minister says that he does not want to criminalise 7 million people, or 20% of the population. But of course that has been done before, as was pointed out by the noble Lord, Lord Ribeiro. The non-wearing of seat belts was made a criminal offence for between 25 million and 30 million people at the time that the legislation went through, which, incidentally, I supported. The excuse that there are too many people smoking who would be criminalised simply will not wash.
Lord Stoddart of Swindon
I was in the House of Commons at that time, and I can assure the noble Earl that the number of complaints I had, from my own constituents and other people, about the compulsory wearing of seat belts was enormous. But I bravely resisted those complaints and spoke in favour of the then Government who brought the seat-belt legislation forward, and of course it was later extended to back-seat passengers as well.
Earl Howe
I am sure that noble Lords would love to continue this debate, and perhaps we could do so on another occasion. I am grateful to the noble Lord, Lord Stoddart, for reminding us of those debates.
We all agree, I am sure, that action we take now to stop young people taking up smoking will have a significant beneficial impact on public health in the long term, which was a point made by my noble friend Lord Ribeiro. It will help young people to live longer and healthier lives, and I say, “Hear, hear!” to that.
“Prohibition of sale of nicotine products to persons under 18
(1) The Secretary of State may by regulations make provision prohibiting the sale of nicotine products to persons aged under 18.
(2) A person who breaches a prohibition in regulations under subsection (1) commits an offence.
(3) Subsection (2) does not apply if—
(a) at the time of the sale, the person to whom the nicotine product is sold is employed by a manufacturer of nicotine products to which regulations under subsection (1) apply or by a dealer in such products (whether wholesale or retail), and(b) the purchase of the product is for the purposes of the manufacturer’s or dealer’s business.(4) Where a person is charged with an offence under this section it is a defence that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) The Secretary of State may by regulations—
(a) amend section (Purchase of tobacco etc. on behalf of persons under 18) (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or(b) provide for that section to apply (with or without modifications) in relation to nicotine products.(7) Regulations under this section may make provision in relation to—
(a) all nicotine products,(b) nicotine products of a specified kind, or(c) nicotine products subject to specified exceptions.(8) The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.
(9) For the purposes of this section “nicotine product” means—
(a) a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,(b) an item which is intended to form part of a device within paragraph (a), or(c) a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.(10) It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.
(11) The following are not nicotine products for the purposes of this section—
(a) tobacco;(b) cigarette papers;(c) any device which is intended to be used for the consumption of lit tobacco.(12) In this section—
“specified” means specified in regulations under this section;
“tobacco” has the same meaning as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”
“Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)
(1) The Children and Young Persons Act 1933 is amended in accordance with subsections (2) to (6).
(2) In the italic heading before section 12A, after “tobacco” insert “or nicotine products”.
(3) In section 12A (restricted premises orders)—
(a) in subsection (1), after “tobacco” insert “or nicotine”,(b) in subsection (3), for “or cigarette papers” substitute “, cigarette papers or nicotine product”, and(c) in subsection (7)(a), after “tobacco” insert “or nicotine”.(4) In section 12B (restricted sale orders)—
(a) in subsection (1), after “tobacco” insert “or nicotine”,(b) in subsection (3)—(i) in paragraph (a), for “or cigarette papers” substitute “, cigarette papers or nicotine product”,(ii) in paragraph (b), for “or cigarette papers” substitute “, cigarette papers or nicotine products”,(iii) in each of paragraphs (c) and (d) omit “cigarette” in each place, and(iv) in each of those paragraphs, after “tobacco” insert “or nicotine products”, (c) in subsection (5), after “tobacco” insert “or nicotine”, and(d) in subsection (6)—(i) omit “cigarette”, and(ii) after “tobacco” insert “or nicotine products”.(5) In section 12C(1)(a) (enforcement), for “or cigarette papers” substitute “, cigarette papers or nicotine product”.
(6) In section 12D (interpretation)—
(a) in subsection (1), in the opening words, for ““tobacco offence”” substitute ““tobacco or nicotine offence””,(b) in that subsection omit the “or” at the end of paragraph (b) and at the end of paragraph (c) insert “, or(d) an offence committed under section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 on any premises (which are accordingly “the premises in relation to which the offence is committed”).”, and(c) after subsection (2) insert—“(2A) In sections 12A to 12C “nicotine product” means a nicotine product within the meaning of section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 the sale of which to persons aged under 18 is for the time being prohibited by regulations under subsection (1) of that section.”
(7) In section 5 of the Children and Young Persons (Protection from Tobacco) Act 1991 (enforcement action by local authorities in England and Wales)—
(a) in subsection (1)(a), for “and sections 3 and 4 above” substitute “, sections 3 and 4 above and section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 (prohibition of sale of nicotine products to persons under 18)”, and(b) after subsection (1) insert—“(1A) Subsection (1) applies in relation to section (Prohibition of sale of nicotine products to persons under 18) of the Children and Families Act 2014 only if regulations under subsection (1) of that section are for the time being in force.”
(8) The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by or under section (Prohibition of sale of nicotine products to persons under 18).
(9) In subsection (8) “enactment” includes a Measure or Act of the National Assembly for Wales.”
(a) ”
(b) make provision for the appropriate minister to direct, in relation to cases of a particular description or a particular case, that any duty imposed on a local weights and measures authority in Great Britain or a district council in Northern Ireland by virtue of provision under paragraph (a) is to be discharged instead by the appropriate minister.”
““appropriate minister”—
(a) in relation to England, means the Secretary of State,(b) in relation to Wales, means the Welsh Ministers, (c) in relation to Northern Ireland, means the Department of Health, Social Services and Public Safety, and(d) in relation to Scotland, means the Scottish Ministers;”
“(1) The Health Act 2006 is amended as follows.
(2) In section 5 (smoke-free vehicles)—
(a) after subsection (1) insert—“(1A) Regulations under this section may in particular provide for a private vehicle to be smoke-free where a person under the age of 18 is present in the vehicle.”, and
(b) in subsection (2), for “The regulations” substitute “Regulations under this section”.(3) In section 9 (fixed penalties), after subsection (1) insert—
“(1A) The appropriate national authority may by regulations provide that, in the circumstances specified in the regulations, an authorised officer of an enforcement authority (see section 10) who has reason to believe that a person has committed an offence under section 8(4) in relation to a vehicle in relation to which the authorised officer has functions may give the person a penalty notice in respect of the offence.”
(4) In section 10(1) (power to designate bodies or descriptions of body as enforcement authorities)—
(a) after “designating the” insert “persons or”, and(b) after “descriptions of” insert “person or”.(5) In section 79 (orders and regulations)—
(a) in subsection (4) (powers to which affirmative procedure applies), in paragraph (a) (powers in Part 1), for “or 8(7)” substitute “, 8(7) or 9(1A)”,(b) in that subsection, in paragraph (f) (powers in Schedule 1), for “or 8” substitute “, 8 or 17”, and(c) after that subsection insert—“(4A) No statutory instrument containing regulations under section 9(1A) or paragraph 17 of Schedule 1 may be made by the Welsh Ministers unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.”
(6) In Schedule 1 (fixed penalties), after paragraph 16 insert—
“Power to amend or modify Schedule17 The appropriate national authority may by regulations—
(a) amend this Schedule so as to modify its application in relation to penalty notices issued by an authorised officer of an enforcement authority of a particular kind, or(b) provide for this Schedule to apply with modifications in relation to such notices.””
“Parent carers
(1) In the Children Act 1989, after section 17ZC (as inserted by section 89) insert—
“17ZD Parent carers’ needs assessments: England
(1) A local authority in England must, if the conditions in subsections (3) and (4) are met, assess whether a parent carer within their area has needs for support and, if so, what those needs are.
(2) In this Part “parent carer” means a person aged 18 or over who provides or intends to provide care for a disabled child for whom the person has parental responsibility.
(3) The first condition is that—
(a) it appears to the authority that the parent carer may have needs for support, or(b) the authority receive a request from the parent carer to assess the parent carer’s needs for support.(4) The second condition is that the local authority are satisfied that the disabled child cared for and the disabled child’s family are persons for whom they may provide or arrange for the provision of services under section 17.
(5) An assessment under subsection (1) is referred to in this Part as a “parent carer’s needs assessment”.
(6) Subsection (1) does not apply in relation to a parent carer if the local authority have previously carried out a care-related assessment of the parent carer in relation to the same disabled child cared for.
(7) But subsection (1) does apply (and so a parent carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the parent carer or the disabled child cared for have changed since the last care-related assessment.
(8) “Care-related assessment” means—
(a) a parent carer’s needs assessment;(b) an assessment under any of the following—(i) section 1 of the Carers (Recognition and Services) Act 1995;(ii) section 6 of the Carers and Disabled Children Act 2000;(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.(9) A parent carer’s needs assessment must include an assessment of whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in the light of the parent carer’s needs for support, other needs and wishes.
(10) A local authority in carrying out a parent carer’s needs assessment must have regard to—
(a) the well-being of the parent carer, and(b) the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility.(11) In subsection (10) “well-being” has the same meaning as in Part 1 of the Care Act 2014.
(12) A local authority, in carrying out a parent carer’s needs assessment, must involve—
(a) the parent carer,(b) any child for whom the parent carer has parental responsibility, and(c) any person who the parent carer requests the authority to involve.(13) A local authority that have carried out a parent carer’s needs assessment must give a written record of the assessment to—
(a) the parent carer, and(b) any person to whom the parent carer requests the authority to give a copy.(14) A local authority in England must take reasonable steps to identify the extent to which there are parent carers within their area who have needs for support.
17ZE Parent carers’ needs assessments: supplementary
(1) This section applies for the purposes of section 17ZD.
(2) The references in section 17ZD to providing care include a reference to providing practical or emotional support.
(3) Where a local authority—
(a) are required to carry out a parent carer’s needs assessment, and(b) are required or have decided to carry out some other assessment of the parent carer or of the disabled child cared for,the local authority may combine the assessments.(4) The Secretary of State may by regulations make further provision about carrying out a parent carer’s needs assessment; the regulations may, in particular—
(a) specify matters to which a local authority is to have regard in carrying out a parent carer’s needs assessment;(b) specify matters which a local authority is to determine in carrying out a parent carer’s needs assessment;(c) make provision about the manner in which a parent carer’s needs assessment is to be carried out;(d) make provision about the form a parent carer’s needs assessment is to take.(5) The Secretary of State may by regulations amend the list in section 17ZD(8)(b) so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.17ZF Consideration of parent carers’ needs assessments
A local authority that carry out a parent carer’s needs assessment must consider the assessment and decide—(a) whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;(b) whether the disabled child cared for has needs for support;(c) if paragraph (a) or (b) applies, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and(d) if they could be so satisfied, whether or not to provide any such services in relation to the parent carer or the disabled child cared for.”(2) In section 104 of the Children Act 1989 (regulations and orders)—
(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) after “(3AA),” insert “(3AB),”, and(b) after subsection (3AA) insert—“(3AB) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZE(5).””
Lord Nash
My Lords, both in Committee and on Report, we have discussed support for parent carers. I am delighted to move Amendment 42, which will insert a new clause on the assessment of support for parent carers into Part 5 of the Children and Families Bill. I particularly thank the noble Baroness, Lady Pitkeathley, and my noble friend Lady Tyler for the time they spent discussing the issue with me and officials. I sincerely thank the parent carers whom I met recently for sharing with me their moving stories.
On Report, I committed to bring back an amendment in response to the powerful arguments that had been made. I am pleased to bring forward an amendment to consolidate existing legislation on parent carers of disabled children into the Children Act 1989 and to streamline the legislation so that it is consistent with the approach being taken to young carers and carers of adults. The consolidated legislation will remove the requirement for those with parental responsibility for disabled children to be providing substantial and regular care in order to be assessed. It will take a more consistent approach across carers and avoid confusion. The legislation will also require local authorities to assess on the appearance of needs as well as following a request by a parent carer. This will benefit those parents who are not aware of the rights.
The amendment specifically requires a local authority to consider the well-being of the parent carer in carrying out the needs assessment alongside the need to safeguard and promote the welfare of the disabled child, which of course must remain of paramount importance. The requirement to consider well-being builds on existing legislation, which already requires local authorities to consider aspects of parental well-being, including whether they wish to work or to undertake education, training or leisure activities. The amendment widens the definition of “well-being” to the definition in Part 1 of the Care Bill. This wider definition includes other aspects of well-being, such as physical and mental health and emotional well-being. The amendment means that we are taking a more consistent approach to different groups of carers.
As I said on Report, I also recognise that there is work to do to ensure that guidance sets out clearly the legislative framework on how services should work together to support families. My officials are working with representatives of parent carers and local authorities to consider the changes to statutory guidance that are needed.
I hope that your Lordships agree that this amendment is necessary, and I urge noble Lords to support it. I beg to move.
Baroness Pitkeathley (Lab)
Noble Lords will not be surprised to hear that I am very pleased with the government amendment. Much more important, parent carers everywhere will be relieved and delighted. All that we ever wanted was for parent carers to have the same rights to assessment as those which have been given by this Government and previous Governments to carers of adults and to young carers. We also wanted the well-being principle to be enshrined in legislation for parent carers as it has been for other carers.
We are given to understand that nothing so pleases the Almighty as a sinner that repenteth. While I would not for a moment wish to accuse the noble Lord of being a sinner, he and his officials were certainly a bit resistant to these ideas at the beginning, but—no matter—the important thing is where we have ended up. This amendment sends a strong message to parent carers that their well-being really matters. I pay warm tribute to the Minister and his officials for being willing to listen, to meet parent carers and to bring this elegant and wide-ranging solution to the problems which those parent carers so graphically illustrated in his meeting with them.
Baroness Tyler of Enfield
I associate myself with the eloquent remarks of someone whom I consider to be very much my noble friend, the noble Baroness, Lady Pitkeathley.
Having been involved in the discussions as we have gone through the various stages of this Bill, I am extremely pleased with where we have come out, which is a far more consistent package of rights to assessment and support for parent carers. They will now be on a level playing field with young carers and carers of adults. The two Bills together, this Bill and the Care Bill, will make a huge difference to carers. In this amendment, we are thinking particularly of parent carers and the important role that they play.
We are hugely in the debt of carers as a whole in this country for their very hard and self-sacrificing work, and I am absolutely delighted that legislation is now almost on the statute book which recognises that. I pay tribute to the Minister and his officials for listening and responding, and for working so hard to get us to where we are.
Baroness Howe of Idlicote (CB)
My Lords, as one who has been part of the process of this Bill almost from day one and who has watched the amazing progress that has been made, I want to thank the Minister for two things. The first, which has already been discussed, is the ability to provide education facilities for young offenders within institutions, which is a major step forward; the other is this amendment.
Parent carers should of course have the same consideration as other carers. To see parent carers of disabled children and their general well-being now being considered on the same basis is a huge tribute to the Minister and his team, who we have seen so effectively listen and respond to so many of these amendments. Even though I happened to be the mover of one amendment which did not get quite as far as I wanted it to, I share every bit of the appreciation for the work that has gone on behind the scenes as well as on the Front Benches. I thank everybody involved.
Baroness Howarth of Breckland
My Lords, I want to speak briefly to say two things. The first is that I understood some of the early concerns about ensuring that all children in need receive equal attention and about the difficulties when one group might find themselves with greater attention. I understand where the noble Lord was coming from in trying to think through that issue, but in our discussions it was quite clear—I think he understood—that, if you work with these as a family, you are not actually giving more attention. If the assessment can be done as a family, then it works as a holistic measure. Secondly, I want to pay tribute to the noble Baroness, Lady Pitkeathley. Without her indefatigable work for carers, we probably would not be where we are.
Lord Nash
My Lords, I thank the noble Baroness, Lady Pitkeathley, for welcoming this amendment and echo what the noble Baroness, Lady Howarth, has just said about her tireless efforts in this area. It is entirely down to her that we are where we are. I would also like to thank her for her comments about repentance and my noble friend Lady Tyler and the noble Baronesses, Lady Howe and Lady Howarth, for their words.
As I said previously, we cannot underestimate the contribution that parent carers of disabled children make. It is right that we recognise the particular challenges that they face in supporting their families. I am very pleased that we are able to bring parent carers of disabled children into the Children and Families Bill today.
“Arrangements for living with former foster parents after reaching adulthood
(1) The Children Act 1989 is amended as follows.
(2) After section 23C (continuing functions in respect of former relevant children) insert—
“23CZA Arrangements for certain former relevant children to continue to live with former foster parents
(1) Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.
(2) A “staying put arrangement” is an arrangement under which—
(a) a person who is a former relevant child by virtue of section 23C(1)(b), and(b) a person (a “former foster parent”) who was the former relevant child’s local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority,continue to live together after the former relevant child has ceased to be looked after.(3) It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—
(a) to monitor the staying put arrangement, and(b) to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.(4) Support provided to the former foster parent under subsection (3)(b) must include financial support.
(5) Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.
(6) The duties set out in subsection (3) subsist until the former relevant child reaches the age of 21.”
(3) In Part 2 of Schedule 2 (local authority support for looked after children) after paragraph 19B (preparation for ceasing to be looked after) insert—
“Preparation for ceasing to be looked after: staying put arrangements19BA (1) This paragraph applies in relation to an eligible child (within the meaning of paragraph 19B) who has been placed by a local authority in England with a local authority foster parent.
(2) When carrying out the assessment of the child’s needs in accordance with paragraph 19B(4), the local authority must determine whether it would be appropriate to provide advice, assistance and support under this Act in order to facilitate a staying put arrangement, and with a view to maintaining such an arrangement, after the local authority cease to look after him or her.
(3) The local authority must provide advice, assistance and support under this Act in order to facilitate a staying put arrangement if—
(a) the local authority determine under sub-paragraph (2) that it would be appropriate to do so, and(b) the eligible child and the local authority foster parent wish to make a staying put arrangement.(4) In this paragraph, “staying put arrangement” has the meaning given by section 23CZA.””
Lord Nash
My Lords, I thank the noble Earl, Lord Listowel, and the noble and learned Baroness, Lady Butler-Sloss, for the way in which they have brought this matter to the attention of the House. I also pay tribute to the late Paul Goggins, the MP for Wythenshawe and Sale East, who sadly passed away on 30 December. He was a champion for children in care and I know worked closely with the noble Earl, Lord Listowel, on a range of issues including promoting staying-put arrangements.
The noble Earl and the noble and learned Baroness made a compelling case for enabling young people to remain with their former foster carers once they turn 18 where this is what they and their foster carers agree they want.
With this year’s figures showing only a slight improvement in the numbers who have been able to stay in such arrangements, we have agreed that more action is now required. So I am delighted to be putting forward a government amendment that addresses this extremely important matter. We have consulted on our new clause with a range of voluntary organisations, including the Fostering Network, Barnardo’s and the Who Cares? Trust. I am pleased to say that they have all fully supported its wording.
Proposed new Sections 1 to 6 deal with what constitutes a staying-put arrangement, the duties placed on local authorities for the duration of the arrangement and the conditions that underpin the support of the local authority. The new clause says that a staying-put arrangement is one where the young person is someone who was in care immediately prior to their 18th birthday as an eligible child, and continues to reside with their former foster carer once they turn 18. So long as the arrangement is consistent with the welfare of the young person, the local authority will be required to provide advice, assistance and support to them and their former foster parent to support the maintenance of the arrangement. It would also be required to monitor the arrangement.
Proposed new Section 23CZA(4) explicitly says that the support provided to the former foster carer must include financial support. This is a crucial element of the new duty. These duties will continue until the former relevant child reaches the age of 21 unless either they or their former foster parent decides to end the arrangement sooner.
Local authorities are already under a duty to assess the needs of eligible looked-after children and devise a pathway plan for their transition into adulthood. The assessment process usually starts around the time of the child’s 16th birthday. The second part of the clause places a duty on local authorities to determine, at this early assessment stage, the appropriateness of working towards facilitating a future staying-put arrangement.
We will also issue statutory guidance which underpins the new duty. We have published a draft of this guidance on our website and sent it to noble Lords. We have been consulting voluntary sector organisations about the wording of the guidance and will continue to do so over the coming weeks.
The guidance sets out more detail about the types of support local authorities will be expected to provide. It also sets out how providing staying-put arrangements fits within the wider statutory duties to support young people make the transition to adulthood.
I would welcome comments from Peers in the next couple of weeks on the wording of the guidance. I hope that your Lordships agree that the amendment is a hugely positive step for children in foster care, I urge noble Lords to support it and I beg to move.
The Earl of Listowel (CB)
My Lords, I am grateful to the Minister for bringing forward this amendment and welcome it most wholeheartedly. I am grateful for his kind words. As he says, the amendment will make a huge difference to the lives of hundreds of young people leaving care each year. It has been described as the most important change for young people in care for a generation.
If our children or grandchildren were pushed out of their home at the age of 18, we would be very troubled and do everything in our power to change that. Your Lordships have done just that with this amendment. Just consider the difference that this will make for young women. We know that many women leaving care are prey to sexual exploitation. They are more likely to have pregnancies as teenagers and more likely to have their own children taken into care. It is highly arguable that a contributing factor is their poor relationship with their father. I was speaking earlier today to a woman who lost her father at the age of 14, and the traumatic effect that had on her life impressed that on me once more.
It has been encouraging, during the Bill’s process, to meet young women lobbying me with their male foster carers, looking to continue that healthy relationship with an interested male carer. I am convinced that for many of these young women, the opportunity to have a continuing relationship with a man interested in their success and welfare will have a very beneficial impact on their self-esteem and their future choice of men. I was very pleased to hear my noble and learned friend Lady Butler-Sloss talk about the charity, Families Need Fathers, and I certainly support what she said.
I thank the Minister. He has bent over backwards to listen to my concerns, as I know that he has to many of your Lordships, and he has acted on them. I remember him warning me at our first discussion that there was no money left to fund changes to the law. It is to the Government’s great credit that they have gathered together the £40 million necessary to fund staying put. If I may say so, I hope that the Minister will enjoy reflecting with his family on the difference that he has made to the lives of young people leaving care. I know that his wife already does much important work for young people.
I am also most grateful to the children’s Minister, Edward Timpson MP, for his concern to see this change and to the Secretary of State, the right honourable Michael Gove, for agreeing it and for finding the money to fund it.
I hope that I may extend a few further notes of appreciation to those who have been involved. I am grateful to the Opposition for their support for the amendment, and particularly to the noble Baroness, Lady Hughes, for her enthusiastic support and for setting up the staying-put pilots which provided the essential evidence in making the case for that change. I am grateful to the officials, who worked so hard to make this possible, crunched the numbers on the costs and produced the helpful draft guidance, which I welcome, in time for Third Reading. I am grateful to my colleagues, the noble Baronesses, Lady Perry and Lady Massey, my noble friend Lady Howarth, my noble and learned friend Lady Butler-Sloss, and the noble Lord, Lord Storey, for their advice and support. I am grateful to all those who spoke with such unanimity and strength in Committee—albeit, understandably, occasionally flagging up the caveat of cost. That was extremely helpful.
I am also most grateful to the late and much lamented Paul Goggins MP—I was pleased to hear the Minister’s words of tribute to him and his work. He tabled the staying-put amendment in the Commons and lobbied the Speaker there hard and successfully to have it debated. He gave such strong encouragement to me on the two occasions we met to discuss the amendment. He was a remarkable and lovely man, and it was a privilege to have the opportunity to work with him.
I am grateful to Ann Coffey MP, who spoke to the amendment in the Commons and gave much appreciated later support. I am also grateful to David Simmonds, lead councillor for the Local Government Association on child welfare, for meeting me to discuss the matter and clearly doing such a successful job in lobbying the Government for proper funding of staying put, and to Craig Whittaker MP, chair of the All-Party Parliamentary Group for Looked after Children and Care Leavers, for his advice and support.
I am grateful to the coalition of charities which made this possible, including Barnardo’s, the NSPCC and the Who Cares? Trust, and most especially to Robert Tapsfield, chief executive of the Fostering Network, who led the charge. The help offered by his officer, Vicki Swain, was faultless.
I hope that one day soon we will be looking at extending staying put until age 25—the noble Baroness, Lady Morgan of Drefelin, made a powerful case for this in Committee—and to young people in children’s homes. However, today is the time to celebrate the immensely welcome initiative from the Government. Staying put is a revolution and a landmark. The Government are doing so much good work for children in care, if I may be permitted to say so, and I salute them for it.
Baroness Hughes of Stretford
My Lords, I thank the noble Earl, Lord Listowel, for agreeing to lead on this issue from the Cross Benches. He has been exemplary in the way that he has taken this forward once the issue arrived in this House. I also thank him and the Minister for their recognition of my very good friend Paul Goggins, who is a great loss to the other place and particularly to the cause of improving the lives of children in care.
I am also grateful to my colleagues at the other end because it was very important for us to get cross-party agreement from the two main parties, the Conservative Party and the Labour Party, to the spending commitment involved here. I am pleased that we were able to get that, so that had the Government not agreed to this today we could have given the assurance that we would want to implement it. As the noble Earl, Lord Listowel, says, these amendments extend to a national provision the pilots initiated under the previous Labour Government. I am very pleased that we are able to do that because it will make a huge difference to a great many young people.
I have read the draft guidance and very much welcome the emphasis, which the Minister referred to, on the financial support that local authorities must consider in staying-put arrangements. However, I would also reflect on the fact that the references to any tax and benefit implications for the foster families perhaps need to be strengthened. Local authorities really need to help foster carers unravel any tax and benefit implications of a staying-put arrangement, particularly when they get financial support. The key will be in getting local authorities to implement this fully. Perhaps the Minister could comment on how the Government intend to monitor what is happening so as to know how many young people are being offered, and are taking up, the possibility of a staying-put arrangement and how well those are going.
This is the last time in what has been a very long Bill that I will be on my feet this afternoon. I was reminded earlier that it was July when we had Second Reading. I would like a moment on behalf of myself and my noble friends Lady Jones, Lady Morgan and Lord Stevenson, to make some thank yous. What is remarkable is the number of very substantial improvements made to the Bill during its consideration in this House, which has shown the House of Lords at its best. Despite the fact that many of the changes which we have agreed here had been proposed in the other place and rejected, the willingness of many Members across the House to work together in common cause on key issues has dramatically improved the original Bill, as we received it. On adoption, family justice and special educational needs there are now significant changes which are very welcome. There are new areas of policy as well, as we have been discussing this afternoon, on parent carers, the protection of children from smoking and so on.
There were some lost opportunities for which there was substantial but, in the end, insufficient support to carry the day, particularly on compulsory SRE and online child protection measures. I have no doubt that we will return to those because I know that the noble Baroness, Lady Howe, is not going to give up her indefatigable campaign of online child protection issues. I look forward to supporting her in other opportunities.
While at times the pace of our considerations no doubt caused some concern for the Government, this was in no small measure due to the detailed scrutiny which Members were prepared to give to the Bill, with the time to discuss it and flesh the issues out. We were aided substantially by a wide range of organisations outside the House willing to help us to make the most of the opportunity that the Bill provided, and I thank them very much.
I thank all the Ministers and the Bill team for their willingness to meet us and to listen. They gave very generously of their time and I very much appreciate that. We had some good discussions, and obviously many of those bore fruit.
I also want to mention the Hansard recorders in Grand Committee. We stretched the normal time limits on a number of occasions and I was very conscious of that. I want to put on record that we appreciated their help.
I also thank Sophie Davis, who helps the opposition team in our office. She is terribly well organised, and I am sure that noble Lords who have had e-mails from her and the opportunity to speak to her have found that she is unfailingly courteous and very measured. She has been a great help.
Lastly, I thank the Ministers here today, the noble Baroness, Lady Northover, and the noble Lord, Lord Nash, for their constructive approach and their willingness to bring forward changes that we have discussed. I think that many of us will have heard with regrets the noble Lord’s announcement on Report that he has no intention of remaining a Minister after the general election. One may think that after making such progress with this Bill, it would be rather a waste if this were to be both the first and the last Bill that he took through this House. I hope that he reconsiders. In any event, whatever he does, we wish him well. I thank both Ministers again.
Lord Nash
I thank the noble Baroness, Lady Hughes, for her kind remarks. It has been a pleasure working with her and the noble Baroness, Lady Jones, over the past few months. I have never had so many compliments—certainly not so many back-handed compliments—quite so quickly. The noble Baroness might be interested to know that the draft of the few words that I might say after the final amendment said, “This is my first and last Bill”, and I found myself taking out the words “and last”, so you never know.
I echo the noble Baroness’s remarks about the noble Earl, Lord Listowel; it is in fact entirely thanks to his relentless determination on this issue that we have arrived at the point where we have today with the staying-put arrangements. I thank him for his time in meeting me and officials to discuss the matter and the clause itself. As I mentioned earlier, I would welcome comments from Peers on the draft guidance in the coming weeks, and I will take back the noble Baroness’s comments that she made today.
On the question of monitoring implementation, the noble Baroness, Lady Howarth, made a comment about implementation. I have been saying in the department for some time now that I hope we are not just going to pass the Bill and retire to the sidelines; it is all about making sure that it happens. I just had a word with my honourable friend the Minister responsible for this field and told him that the noble Baroness had made the point again about implementation, and he said that perhaps she would like to come to our first implementation meeting. It is not my brief but I shall be there, and I intend to be at as many as I can get to. As everyone has said, it is about changing practice and ensuring that it actually happens.
On the point about monitoring made by the noble Baroness, Lady Hughes, we will be monitoring the statistical returns from local authorities to assess the take-up of staying put. Also, the revised Ofsted inspection framework includes a new sub-judgment on care leavers that has a focus on accommodation, including staying put. Based on these sources of information, we will be able to identify whether any local authority is not fulfilling its duties, and will not hesitate to challenge those that are not.
We are continuing to work with sector organisations on the guidance to ensure that it supports the effective implementation of this important new duty. We are committed to doing more to support care leavers, and I believe that the proposed new clause is a crucial step forward. I hope that noble Lords will support it.
Lord Ramsbotham
“Use of the Human Rights Act in legal proceedings
After section 2F of the Children Act 2004 (as inserted by section 101) insert—“2G Use of the Human Rights Act in legal proceedings
The Commissioner may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—(a) the Commissioner need not be a victim or potential victim of the unlawful act to which the proceedings relate,(b) the Commissioner may act only if there is or would be one or more victims of the unlawful act,(c) section 7(3) and (4) of that Act shall not apply, and(d) no award of damages may be made to the Commissioner (whether or not the exception in section 8(3) of that Act applies);and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section.””
Lord Ramsbotham
My Lords, I am conscious that my amendment is something of an oddity today because it is the only non-government amendment on the list. I raise it because I still have hopes that it might become a government amendment. It is an amplification of a point that I raised on Report, and about which I asked a supplementary question of the Minister.
The issue concerns the Children’s Commissioner and the request that he or she would share equal footing with the equality and human rights commissioner in being able to bring cases under the Human Rights Act. On Report, the Minister said that initiating and intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function; I certainly took that at face value. Following on, he said that the commissioner would have sufficient interest in a case, because of his or her statutory role to promote and protect children’s rights, to satisfy any judge who might question the right of the commissioner to intervene. He emphasised that the Government did not wish to put into the Bill anything to do with such a right, but assured me in answer to a supplementary question that incoming commissioners would be briefed on their powers in bringing cases before courts.
Unfortunately, about half an hour before the Public Bill Office closed for business last night, the Children’s Rights Alliance for England contacted me, having consulted legally—unfortunately, after the good meeting I had earlier had with Ministers about the Bill. The alliance pointed out that, currently, the Children’s Commissioner is actually prohibited from bringing legal proceedings under the Human Rights Act because to do so you have to be a victim. The Children’s Commissioner does not qualify as a victim in a case.
This was got around for the equality and human rights commissioner through a clause in the Equality Act 2006, which made an amendment to Section 7 of the Human Rights Act, allowing the equality and human rights commissioner to bring legal proceedings. All I am seeking, as I did on Report, is to acknowledge the Minister saying that he agreed that the two commissioners should have equal rights; and that amendments, instead of being made to the Equality Act, should be made to this Bill and to the Children Act 2004, to allow the Children’s Commissioner to bring things forward without running into the risk of being prohibited to do so by something which I suspect was not meant by the Government or anyone else. That is why I move the amendment. I apologise for doing so at this late hour, but we have made so much progress in the Bill that I hope that the Minister, in the spirit in which he has tackled everything else, will feel able to reconsider my original request.
Baroness Howe of Idlicote
My Lords, I support everything that my noble friend has said. I very much hope that the Minister will find a way to make this a possibility.
Lord Nash
I am grateful to the noble Lord, Lord Ramsbotham, for tabling the amendment, and congratulate him on the speed with which he grasped the moment to do so. This offers an opportunity to provide further clarity on the matter.
In a nutshell, the amendment would mean that, when seeking to bring a case under the Human Rights Act, the commissioner would be exempt from the requirement that he or she must be the victim in the case. This would replicate a provision in the legislative framework of the Equality and Human Rights Commission, and would in effect put the Children’s Commissioner on the same footing as the EHRC. I have several reservations in respect of the proposed amendment. I am happy to discuss the point further with the noble Lord, but I must state those reservations now.
First, I do not accept that the Children’s Commissioner and the equality and human rights commissioner have the same role. As I have indicated at various stages during the passage of the Bill, we see the role of the Children’s Commissioner as being largely strategic, whereas the EHRC has oversight of both strategic human rights issues and individual casework. The amendment would give the commissioner a power to pursue individual cases under the Human Rights Act, which would increase the risk that the OCC loses its strategic focus. Noble Lords will appreciate that we have tried to avoid that.
Lord Ramsbotham
My Lords, I thank the Minister for the care and attention he has given to his reply to my amendment. All of us in this House were enlightened by what he had to say and I am gratified to hear his confirmation that the Dunford report’s proposal for close working between the equality and human rights commissioner and the Children’s Commissioner is something that will be encouraged. If that happens, and they work together, the actual office of Children’s Commissioner is bound to be strengthened. I am sure that, when noble Lords look at the Hansard of the debate and see the care and content of the Minister’s summing up, they will reflect that we have indeed been fortunate throughout this Bill in having such care and attention paid to all the points that we have raised. That has been one of the great pleasures of it.
Having already thanked the Minister and the Bill team, I would like to mention something that I forgot: I thank him for the frequent letters and contacts, which were enormously helpful and made the lives of those who had no research support much easier. As the Minister said, there will be a lot of people who will look back on this Bill—particularly children and young people in the future—with greater opportunity than there was previously. That has been due to the work of an awful lot of people. It has been a great pleasure and privilege to be one of those involved. I beg leave to withdraw my amendment.
“(ca) regulations under section “(Prohibition of sale of nicotine products to persons under 18) or (Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)),”
Anti-social Behaviour, Crime and Policing Bill
(10 years, 3 months ago)
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