House of Commons

Tuesday 30th June 2015 Commons Chamber

Tuesday 30 June 2015

The House met at half-past Eleven o’clock

Prayers

Tuesday 30th June 2015 Commons Chamber

[Mr Speaker in the Chair]

Business Before Questions

Contingencies Fund 2014-15

Ordered,

That there be laid before this House an Account of the Contingencies Fund, 2014–15, showing–

(1) a Statement of Financial Position;

(2) a Statement of Cash Flows; and

(3) Notes to the Account; together with the Certificate and Report of the Comptroller and Auditor General thereon.—(Stephen Barclay.)

Oral Answers to Questions

Tuesday 30th June 2015 Commons Chamber

The Secretary of State was asked—

[Alan Mak (Havant) (Con)]

1. What steps he is taking to support small and medium-sized businesses to become more competitive.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

Our business growth service provides expertise to ambitious firms who want to grow and become more competitive, and over this Parliament we will make extensive cuts to red tape which will save businesses £10 billion.

[Alan Mak]

I thank the Secretary of State for his answer. Headromance is a Havant-based hair salon launched in 2012 by two young entrepreneurs. It now employs 10 stylists and five apprentices. Will my right hon. Friend update the House on the measures this Government have taken to support the growth of apprenticeships?

[Sajid Javid]

I warmly welcome my hon. Friend to his place. I am not sure I would have much need of the services of Headromance—I am sure that applies to the shadow Business Secretary too—but that does not stop me warmly congratulating its owners on their success and in particular on backing apprentices. As my hon. Friend knows, during this Parliament we want to see apprenticeship starts rise to 3 million, and we have a number of measures in place to achieve just that.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I draw attention to my entry in the register of interests. Many small and medium-sized freight businesses struggle with the cost of training drivers. Have the Government any plans to look at this afresh with a view to helping people train to become lorry drivers in the UK?

[Sajid Javid]

As the hon. Gentleman will know, it is very important for the Government to listen to all industries about their skills and training needs, including for freight drivers. Of course, the option of apprenticeships is open to that industry, but we must look at other measures too.

[Mike Wood (Dudley South) (Con)]

The business rates system is one of the major barriers to competitiveness for small and medium-sized enterprises. What plans do Ministers have to reform and alleviate some of that burden?

[Sajid Javid]

My hon. Friend will know that the Chancellor announced a full review of business rates in the last Budget. It is important to note that although that will be a proper full review looking at what sensible changes can be made, it will stay fiscally neutral, so it will not be possible to satisfy everyone.

[Peter Kyle (Hove) (Lab)]

Brighton and Hove is the most entrepreneurial city in the country but still lags behind the region for productivity. What is the Secretary of State doing to increase productivity among small businesses?

[Sajid Javid]

There are a number of actions that Government can take, and some of them were taken by the coalition Government and are now bearing fruit, such as cutting taxes and the employment allowance. During the lifetime of this Parliament, there will be a big focus on productivity, and there will be further measures, including on deregulation.

[Rishi Sunak (Richmond (Yorks)) (Con)]

The last Labour Government had an appalling record on regulation, introducing something like six new regulations a day. What does my right hon. Friend think that did for the productivity of small and medium-sized companies in the UK?

[Sajid Javid]

I welcome my hon. Friend to the House, and he is absolutely right: the last Labour Government had an appalling record on so many things, including regulation, and the more we can keep the red tape challenge going, and our policy of one in, two out, the more we will help businesses.

[Jim Shannon (Strangford) (DUP)]

In Northern Ireland 99.9% of small businesses are the core of the industrial base. They create some 347,000 jobs. What can the Secretary of State do to ensure that those jobs can be retained and more jobs can be created?

[Sajid Javid]

The hon. Gentleman is right to point out the importance of small businesses, particularly in the context of Northern Ireland. He will know that many of the policies that impact on small businesses in Northern Ireland are devolved, but there are a number where we can make an impact through the UK Government. One is foreign investment, which has been going up in Northern Ireland, and we will continue to focus on that.

[David Morris (Morecambe and Lunesdale) (Con)]

2. What steps he is taking to simplify regulation for self-employed people.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

The enterprise Bill will help to save businesses £10 billion through further deregulation. We have committed to launching a review into tackling the specific disadvantages faced by the UK’s 4.5 million self-employed.

[David Morris]

I thank my right hon. Friend for that answer. As the self-employment ambassador, the issue of the IR35 constantly crops up when self-employed people write to me. Can we meet to see how we can simplify this?

[Sajid Javid]

I thank my hon. Friend for the work he has done and continues to do as self-employment ambassador. I would be delighted to meet him to discuss how we can make the system fairer, quicker and simpler for the self-employed. He will know that tax policy, in particular, is an issue for the Treasury, and I will bring it to the attention of my hon. Friend the Financial Secretary.

[Marie Rimmer (St Helens South and Whiston) (Lab)]

The number of self-employed people is growing, but they are often disadvantaged and face additional burdens when applying for a mortgage or to set up a pension scheme for themselves. What steps is the Minister taking to ensure that these barriers are not erected and do not attack the self-employed?

[Sajid Javid]

The hon. Lady is right to point out that issue. She may know, as I am sure she read it carefully, that the Conservative party had a very pro-business manifesto. We have rightly committed ourselves to having a review of the challenges faced by self-employed people and their businesses, and that would include looking at the issue she raises: access to mortgages.

[Mr Philip Hollobone (Kettering) (Con)]

The self-employed in Kettering and across the country are the unsung heroes of the economic recovery, yet their terms and conditions, with no sick pay, no holiday pay and inadequate pension provision, are akin to those on zero-hours contracts. What will the Secretary of State do in this Parliament to ensure that the rewards for the self-employed, with their enterprise and endeavour, are properly recognised?

[Sajid Javid]

My hon. Friend, as usual, is spot on. He should know that this review will look at precisely those issues. A number of challenges are faced by the self-employed and it is about time the Government took a careful look at them. That is exactly what we will be doing.

[Andrew Gwynne (Denton and Reddish) (Lab)]

The Government’s universal credit plans are set to burden 600,000 self-employed people with additional red tape requiring them to provide a new set of monthly accounts. Given that the Secretary of State is responsible for cutting red tape, what is he doing about that? What is he doing to put self-employed people first?

[Sajid Javid]

The hon. Gentleman will know that the universal credit plans are essential to make sure that work pays, and I would have thought he would support that. On the issues that it might raise for small businesses and the self-employed, it is important that we look at the net burden of regulation on businesses and keep reducing it.

[Ian C. Lucas (Wrexham) (Lab)]

3. If he will implement an active and interventionist industrial strategy to assist economic growth in the UK.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

The biggest challenge facing the economy is improving productivity, and that challenge varies by sector. Dialogue with business, including through the sector councils, as part of our industrial approach, is key to addressing this issue.

[Ian C. Lucas]

As a member of the last Labour Government, I am very proud that the Labour party, in government, established the Automotive Council, which has provided the framework for the most successful decade in UK car production for a very long time. Will the Secretary of State confirm that he will not, on the altar of ideology, endanger that success?

[Sajid Javid]

I look forward to working with the Automotive Council. In fact, I have already had a meeting with it and I told it something the hon. Gentleman would agree with, which is that the automotive industry is one of the brightest stars in the constellation of British business.

[Mr Steve Baker (Wycombe) (Con)]

May I reassure my right hon. Friend that if he does wish to follow a more liberal policy than his predecessor, he will have plenty of support from Conservative Members?

[Sajid Javid]

I can tell my hon. Friend that we will have active dialogue with various industries, across sectors, and we will make sure that we are listening and seeing what the Government can do.

[Andy McDonald (Middlesbrough) (Lab)]

Given tomorrow’s eagerly awaited announcement by the Teesside Collective on its ambitious industrial carbon capture and storage proposal, will the Minister, with his colleagues, ensure that industrial, energy and climate change policies are aligned and that every other assistance is given to the collective in bringing about an early realisation of this vital project?

[Sajid Javid]

I have listened very carefully to the hon. Gentleman, and if he would like to furnish me with more information about the Teesside Collective and how we can help, I would be happy to take a look.

[Mr David Jones (Clwyd West) (Con)]

The Government’s northern powerhouse strategy has the potential to offer huge benefits to north Wales. What discussions has my right hon. Friend’s Department had with the Welsh Government with a view to developing it?

[Sajid Javid]

As my right hon. Friend will know, this is a one nation Government. We want to make sure that, as the economic recovery continues, it includes every part of the UK, and that will of course include Wales. We are more than ready to talk to the Welsh Government. I have had a number of discussions with my right hon. Friend the Secretary of State for Wales, who at this point is a lot more interested than the Welsh Government in economic development in Wales.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

The Chancellor says that he supports modern industrial policy and the Prime Minister has said that he wants an active industrial policy, but, according to the Financial Times, the new Business Secretary has told officials in the Department that they should not talk about industrial policy. Now we hear him talking about an “approach”. Can he tell industries around the country whether he still has an industrial policy and, if so, what on earth it is?

[Sajid Javid]

I think I have already answered the hon. Gentleman’s question, but I am happy to repeat that answer. This Government will have an active dialogue with all industrial sectors. We will listen to their needs on skills, infrastructure and training, and work with them. That includes the sector councils. We will also make sure that we are open to new industries, to competition and to disruptive industries, and that we become the most open economy in the world.

[Anna Turley (Redcar) (Lab/Co-op)]

4. What recent assessment he has made of the effectiveness of the Government’s strategic support for industries and sectors.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

In preparation for the forthcoming spending review, I am assessing the effectiveness of BIS policies, including strategic support for industry. We will continue an open dialogue with business, including through sector councils.

[Anna Turley]

A long-term industrial strategy is vital for my constituency, which boasts a major chemical process complex in Wilton. Recently, the workforce have been taking to the gates because they believe that long, hard-won, nationally agreed terms and conditions are being undercut on the site. What assurance can the Minister give me, and what steps is he taking to make sure, that nationally agreed terms and conditions are being applied on such sites, and that the British workforce are not being undercut by recruitment from overseas?

[Sajid Javid]

I welcome the hon. Lady to her place. I know that a number of industries, including the one that she has mentioned, are important to Redcar. I am more than happy to take a closer look at the issue that she raises. I am afraid that I do not know the details of it, but if she would like to furnish me with them, I or my right hon. Friend the Minister for Small Business, Industry and Enterprise will take a closer look.

[Tom Pursglove (Corby) (Con)]

Steel producers are an important employer in Corby. Will my right hon. Friend meet representatives of the steel all-party parliamentary group, who are working closely together, to talk about strategic support, especially on carbon taxation?

[Sajid Javid]

I welcome my hon. Friend to his place and congratulate him on his work to help the steel industry to meet those challenges. I will be more than happy to meet him and representatives of the APPG and see what more we can do, especially on the high energy costs that the industry faces.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

I have previously suggested a strategic support mechanism for the open-cast coal industry—a carbon tax exemption for specific sites. An independent economic analysis suggests that an exemption with a value of £195 would produce a net income to the Treasury of £57 million and would also allow the sites to be restored. Will the Secretary of State consider that urgently and work with the Treasury to include the exemption in the July Budget or, following a previous offer, meet me to discuss it?

[Sajid Javid]

Steel is a very important industry, employing thousands of people in Britain. It is important to see what we can do to help, so I or my right hon. Friend the Minister for Small Business, Industry and Enterprise will be more than happy to meet the hon. Gentleman.

[John Pugh (Southport) (LD)]

What plans, if any, do the Government have to make local enterprise partnerships more democratically accountable? They have more funds than the regional development agencies, but are less accountable.

[Sajid Javid]

It is right that LEPs are business-led, but it is also important that they include democratically elected people, and that is how they are working. It is important to review LEPs after a few years of operation and to ensure that they are truly accountable.

[Huw Irranca-Davies (Ogmore) (Lab)]

5. What steps his Department plans to take to improve productivity in businesses and industries.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

Productivity growth ultimately comes from business and the hard-working people of Britain, but the Government can, of course, help. That is why my Department is working closely with the Treasury on a forthcoming productivity plan.

[Huw Irranca-Davies]

The Minister is right about the reliance on individual workers to drive up productivity and about what the investor community can do as well, but he will know that the Office for Budget Responsibility has said that if productivity per worker was 4% higher during this Parliament, that would have a significant effect on reducing the national debt, and correspondingly, that if it was not, the national debt could rise. Does he agree with this rather gloomy assessment and, if so, what does he think the figures for individual growth per worker will be by the end of this Parliament?

[Sajid Javid]

The hon. Gentleman will know that the UK has had a long-running productivity challenge, which was made all the worse by Labour’s great recession. An increase in productivity is the surest way to raise real wages and I can assure him that it will be a major focus of this Parliament. We will shortly publish a productivity plan which I hope will reassure him that the Government take this very seriously.

[Neil Carmichael (Stroud) (Con)]

Does the Secretary of State agree that in challenging the productivity problem, we need to address our minds to skills and making sure that we have the appropriate pipeline of skills running through the education system to the businesses that desperately need them?

[Sajid Javid]

I congratulate my hon. Friend on becoming Chair of the Education Committee. He is right to talk about the link between better skills and increased productivity, and I hope that in his new role he can make a valuable contribution to that.

[Michelle Thomson (Edinburgh West) (SNP)]

Given that we are five years into the long-term economic plan and regrettably our productivity is 17% lower than the average among G7 economies, with growth in the EU 5% over the same period, why does the Minister believe that productivity will rise during the lifetime of this Parliament, since it fell during the last Parliament?

[Sajid Javid]

I welcome the hon. Lady to her place. She is right to point out the challenges of productivity, which have been a long-term challenge for this country. I hope she recognises that over the past five years the previous Government did a huge amount to turn around the economic fortunes of this country. We are the fastest-growing country in the G7, and just today we saw the Office for National Statistics revise growth figures for last year. That means thousands of jobs throughout Britain, including Scotland, making us the jobs factory of Europe.

[Michelle Thomson]

The Scottish Government, of course, are focused on growing our economy, using our four Is—innovation, internationalisation, investment and inclusion. Will the Minister support the Scottish National party call for a change to remove the sudden decrease in the investment allowance from £500,000 down to £25,000 from 1 January 2016 to help continue our success?

[Sajid Javid]

If the SNP wants to help business in Scotland, it should look at deregulating much more. In many of the areas that are devolved to Scotland, whereas the UK Government have been working hard to cut regulation, the Scottish Government have been working hard to boost regulation. Deregulation is one of the best ways to help productivity and growth in Scotland.

[Rebecca Pow (Taunton Deane) (Con)]

6. What discussions he has had with the Secretary of State for Culture, Media and Sport on the importance of superfast broadband to rural businesses.

[The Minister for Culture and the Digital Economy (Mr Edward Vaizey)]

There have been no recent discussions between the Business Secretary and the Culture Secretary, but as the Secretary of State for Business was the Secretary of State for Culture and therefore responsible for the broadband programme, a meeting is not necessary at this moment.

[Mr Speaker]

He can talk to himself.

[Rebecca Pow]

The second phase of the connecting Devon and Somerset superfast broadband programme has not been signed this week, and this could have an enormous negative impact on the economy of my constituency, Taunton Deane. For example, one business, the British Association for Shooting and Conservation, has recently moved from Staple Fitzpaine, taking eight rural jobs with it because it had no broadband. Please will the Minister intervene urgently to ensure that this vital service is provided not just for Taunton Deane, but for the whole of Somerset?

[Mr Vaizey]

I am delighted to welcome my hon. Friend to her place. Within weeks of arriving here, she is already proving that she will be a champion for her constituents, particularly on this issue. I am delighted that 52,000 premises in her constituency have superfast broadband. Another 10,000 will get it and I will continue to work with her and all MPs in Devon and Somerset to ensure that the broadband roll-out programme goes to plan.

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

Has the Minister had any discussions with the devolved institutions about co-operating on rural broadband? The providers are UK-wide and there are opportunities for such discussions.

[Mr Vaizey]

We work closely with the Northern Ireland Executive on the issue. Something like £23 million is helping to roll out superfast broadband in Northern Ireland and get it to the level it should be at.

[Mr Ranil Jayawardena (North East Hampshire) (Con)]

My hon. Friend the Member for Taunton Deane (Rebecca Pow) was right to mention rural businesses. Does the Minister agree that it is important for BT and others to streamline the way in which local authorities can provide match funding to help the final 5%?

[Mr Vaizey]

Yes. The success of the broadband programme so far means that focus is now turning to the final 5%, and in the next few months we will announce our plans to deliver for them. I am delighted that some £14 million has helped Hampshire get to 89%, and phase 2 will take it to 96%.

[Carolyn Harris (Swansea East) (Lab)]

Does the Minister think that it is acceptable that in half the Government’s enterprise zones firms do not have full access to superfast broadband?

[Mr Vaizey]

It is important that we get superfast broadband to as many businesses as possible. I was delighted that last week we were able to say that 25,000 businesses have taken advantage of our excellent voucher scheme.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

7. What assessment he has made of the effects in Lincolnshire of the Government’s policies on small businesses.

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

Between 2010 and 2014 the number of private sector businesses in the east midlands increased by 28,000. Last week it was an absolute pleasure to meet representatives from local enterprise partnerships right across the midlands, including from Lincolnshire. There was such enthusiasm to make the midlands the engine that we want it to be, replicating the northern powerhouse —[Interruption.] I am sorry that Opposition Members find that funny; I thought that they would have welcomed the northern powerhouse, as their Labour colleagues in those local authorities do. In any event, we know that small businesses are at the heart of our long-term economic plan.

[Stephen Phillips]

I am grateful to my right hon. Friend for that answer. She will want to join me in welcoming the latest figures, which show that employment in the north-east, the north-west and the east midlands is growing faster than in London. Will she ensure that that record of seeing growth and prosperity outside London continues, reflecting this Government’s one nation approach?

[Anna Soubry]

I completely endorse my hon. and learned Friend’s sentiment and absolutely agree with him. Between 2010 and 2014, 58% of net new jobs were created outside London and the south-east, whereas between 2004 and 2010 the figure was only 37%. That is further evidence that our long-term economic plan is working.

[Several hon. Members]

rose—

[Mr Speaker]

Order. The Minister has broadened the question a bit, which she is perfectly entitled to do, but not to the extent that it would encompass Northern Ireland, Merseyside or even west Yorkshire. Those Members will have to await their opportunity.

[Mr Dennis Skinner (Bolsover) (Lab)]

rose—

[Mr Speaker]

Ah, the hon. Gentleman is stirring in his den. Mr Skinner.

[Mr Skinner]

I have listened carefully for the past half an hour to find out exactly what the Tory Government are trying to do about places in the east midlands such as Bolsover, which is very close to Lincolnshire, because when the Labour Government were in power, both myself and Gordon Brown, the then Chancellor of the Exchequer, were the northern powerhouse. I asked him for 40 million quid to flatten the pit tips at Markham Vale, and he gave it me. Then I asked for some more money for an interchange straight up the M1 into Markham pit yard, and I got that as well. We were fixing the roof while the sun was shining. We don’t want none of this claptrap about the Tory northern powerhouse. [Interruption.]

[Anna Soubry]

I thought—[Interruption.]

[Mr Speaker]

Order. We must hear the answer.

[Anna Soubry]

I thought that we were about to call for a Division during that so-called question. Let me remind the hon. Gentleman what his real record is. The real record is one of the longest and deepest recessions in our country’s history. The real record is bringing this nation to the verge of bankruptcy. Instead of talking down the east midlands—and I am an east midlands person through and through—the hon. Gentleman should be talking it up, and rightly so. From my experience, we will see the creation of a midland engine that will give us the long-term growth and the jobs of the future that his party failed to deliver.

[Karl MᶜCartney (Lincoln) (Con)]

Considering the growth of business opportunities in our county and particularly in the city of Lincoln, will the Minister build on the recently announced £130 million investment in the University of Lincoln, a chief component of the midlands engine, and grant us enterprise zone status?

[Anna Soubry]

I am very happy to provide a triumph for Lincoln, given that it is the city of my birth. In any event, I am very happy to meet him to talk about the future of the university and the real role it can play. As I have said—forgive me for repeating it, Mr Speaker—I have met all the representatives of the LEPs from right across the midlands. Indeed, we talked about Lincoln University and the real desire to create a midlands engine, and rightly so.

[Mr Speaker]

It has to be said that repetition is not a novel phenomenon in the House of Commons.

[Helen Whately (Faversham and Mid Kent) (Con)]

8. What steps he is taking to reduce regulation of businesses.

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

As we have heard, the Government are committed to reducing the regulatory burden on all businesses. The one in, two out initiative has put a real brake on the introduction of new regulations. Through the enterprise Bill, we will target regulators’ actions as part of our commitment to cut a further £10 billion of red tape for the benefit of businesses.

[Helen Whately]

I thank my right hon. Friend for her answer. There are many pubs in my constituency, as well as the Shepherd Neame brewery and the Whitstable brewery. These local businesses are important as employers, and for their role in rural communities. Outdated bureaucracy is one more hurdle for them to overcome. For instance, pubs are required to advertise changes in their licence, costing about £500 a time, and many local authorities require licence fees to be paid by cheque, rather than allowing more modern methods of payment. What steps will the Government take to reduce the burden of bureaucracy on pubs and breweries?

[Anna Soubry]

I welcome my hon. Friend to her place and thank her for her question. She provides examples of exactly the sort of regulation that we are seeking to look at and, indeed, to remove if necessary. That is why I will shortly announce a new Twitter account, @CutRedTapeUK, which no doubt—[Interruption.] It is all right. I am familiar with Twitter—oh, yes—and hashtags. I am trying to make the very serious point, which may be lost on Opposition Members, that we want to hear from businesses, and indeed from anybody, about the red tape, regulation and the burden it imposes, notably on small businesses, so that we can cut it.

[Nick Smith (Blaenau Gwent) (Lab)]

20. The summer sporting and music calendar is in full swing, but fans are being let down by shady ticket sellers. This week, Taylor Swift fans are disappointed after the company from which they have bought tickets online disappeared without trace. When can we have better regulation of the secondary ticket market so that fans are not ripped off? [Interruption.]

[Anna Soubry]

I have heard of Taylor Swift, too. We are doing a review of that because we recognise that there is a problem. [Interruption.] The hon. Gentleman is straining to hear above all the chuntering on the Benches in front of him. I think my hon. Friend the Minister for Skills has responsibility for that—we are aware of the problem and we are doing a review—but I am more than happy to meet him to talk about it.

[Michael Fabricant (Lichfield) (Con)]

Does my right hon. Friend agree that key to reducing regulation will be renegotiation in Brussels, so will she #congratulate the Secretary of State, who is sitting right by her, for his brilliant speech last night to the CBI, telling it that to argue against Brexit is madness before we have actually renegotiated anything?

[Anna Soubry]

I think I should just say yes, Mr Speaker, but I would add that my right hon. Friend the Secretary of State was actually talking about all businesses, not just those here.

[Bill Esterson (Sefton Central) (Lab)]

I am sure that businesses will tell the Minister on Twitter what they told Ernst and Young, which is that the number of regulations has gone up, not down, under this Government. Is not the reality that this Government are all talk and no action when it comes to getting rid of regulations?

[Anna Soubry]

I am tempted to say, “The hon. Gentleman would know, wouldn’t he?” I am really surprised at his churlish attitude, and I absolutely do not agree with what he has been told. We know, because it was properly evaluated, that under the previous Administration we actually achieved £10 billion of savings for businesses by cutting red tape. The hon. Gentleman should welcome and praise that.

[John Mc Nally (Falkirk) (SNP)]

9. What steps he is taking to encourage prompt payment to small businesses.

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

The Government are leading the way in paying their suppliers promptly. We have already legislated to “cascade”, as it says here, 30-day terms throughout public sector supply chains. We have also legislated for new transparency measures in the public and private sectors, which will allow full public scrutiny of payment performance. We will go further and consult on our proposals for a small business conciliation service.

[John Mc Nally]

There are many roofing businesses and other small and medium-sized enterprises in Falkirk, and the time and effort involved in chasing late and incomplete payments is a serious burden on them. What plans do the Government have to ensure that the onus is on large contractors to pay, as opposed to SMEs having to chase?

[Anna Soubry]

I completely take the point, and I thank the hon. Gentleman and welcome him to his place. As he will understand, smaller businesses are often reluctant to take action through law. That is why we are considering a conciliation service, which could provide a genuine answer. I would be delighted to come to Falkirk at some stage on my travels and meet some of the companies in question to assure them that we are on their side.

[Huw Merriman (Bexhill and Battle) (Con)]

According to the Federation of Small Businesses, half of small firms were paid late last year. What progress has the Minister made in ensuring that large firms do not take advantage of small businesses in their supply chain and risk livelihoods in the process?

[Anna Soubry]

I take a firm view that it is absolutely scandalous when people do not honour the terms and conditions of their contract and pay late. That is not acceptable, particularly in the modern world. I hear terrible stories about supermarkets; one can only imagine what would happen if someone went shopping on a Saturday and then said at the checkout, “I think I’ll settle my bill in about 120 days.” Obviously they would be told that it was not acceptable, and it is not acceptable for large businesses to treat smaller businesses in that way. That is why we take the problem so seriously.

[Toby Perkins (Chesterfield) (Lab)]

I very much welcome the tone that the Minister is taking, which is in sharp contrast with the feebleness of the Government’s efforts on late payments over the past five years.

Some 2,500 businesses go bust every year not because of a failed business model but simply because they have not been paid on time. Some £46 billion is now owed to UK firms, a figure that rose throughout the Government’s previous term. Will the Minister take serious action, and does she agree that the last Government’s actions were inadequate? What message will she send to businesses that do not pay on time about the actions that the Government will take?

[Anna Soubry]

I hope that I have sent a strong message. I could not be clearer—it is completely unacceptable. [Interruption.] There is no need to add extra regulatory burdens. The law is quite clear: if two parties have come together and settled terms and conditions through a contract—forgive me for sounding like the lawyer I am, Mr Speaker—and one party then breaks the contract by not paying on time, legal action is available to the other party. As we know, the problem is that small businesses are understandably reluctant to go to law. I am exploring other options, including the continuation of naming and shaming.

[Mr David Nuttall (Bury North) (Con)]

10. What steps he is taking to increase the competitiveness of UK businesses.

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

The World Bank recognises the United Kingdom as one of the best places in the world to do business, ranking us eighth. We committed in our manifesto to make the UK No. 1 in Europe and in the top five worldwide in the Doing Business rankings by 2020.

[Mr Nuttall]

Does the Minister agree that for millions of small businesses that never export to the European Union, either because they simply serve the domestic market or because they export only to countries outside the EU, the regulations imposed by Brussels are a burden that damages their ability to compete?

[Anna Soubry]

I absolutely recognise, and the Government recognise, that EU regulations can hit small and medium-sized businesses particularly hard, which is not right or fair. A key priority of our European better regulation agenda is continuing to ensure that the European Commission honours its commitment to introducing lighter regimes for SMEs and exemptions for micro-enterprises where appropriate.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Surely the Minister realises that if we want our businesses to be more competitive, we have to look to skills. Has she seen Professor Alison Wolf’s report “Heading for the Precipice”, which is a damning comment on the lack of skills training in this country and the crisis in further education and adult skills?

[Anna Soubry]

Not only did we deliver 2 million apprenticeships—

[Mr Sheerman]

indicated dissent.

[Anna Soubry]

The hon. Gentleman shakes his head, but that is a fact. He does not like to hear the facts. There were 2 million apprenticeships under the previous Government, and we are determined to achieve 3 million. That is the way we upskill in our country. He should look at the Labour party’s record in government; it was pitiful compared with ours.

[Mr Speaker]

The hon. Member for Huddersfield (Mr Sheerman) is supposed to be a statesman in the House—[Interruption.] Order. He should be setting an example. It is not a two-way debate. He blurted out his question and he must listen to the answer.

[Kit Malthouse (North West Hampshire) (Con)]

11. What steps his Department is taking to support people who want to start their own business.

[Mr Speaker]

I call Anna Soubry—[Interruption.]

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

I am more than happy to answer questions.

More than 30,000 people have benefited from more than £155 million worth of loans expert business advice provided by the Start-Up Loans company, and around 70,000 unemployed people have set up their own businesses with the help of the new enterprise allowance scheme. The business support helpline provides free expert advice to help people start their own businesses in England.

[Kit Malthouse]

North West Hampshire is literally pullulating with people such as Joanne Bishop of Atalanta Jewellery who pluck up their courage and their savings to start their own business. They often have a skill or an idea that they want to put into action, but they lack the expertise to do so, and are often faced with the might of the state. Will the Minister outline what she and her Department will do to provide support to entrepreneurs in future, particularly in taking on the Government?

[Anna Soubry]

I think “pullulating” is a parliamentary word, Mr Speaker, but I think it was a new one on both of us.

We take that issue seriously and various schemes are available, including the business support helpline. I would be more than happy to meet my hon. Friend, who I welcome to his place, to discuss the issue. Ensuring that once people have started a business they can continue to grow it and get support, is an issue we take seriously.

[Mr Speaker]

I have been advised by a scholarly source that “pullulating” means to breed rapidly or abundantly. We are immensely grateful to the hon. Member for North West Hampshire (Kit Malthouse) for his dexterity in the English language.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

Like me, the Minister will no doubt be concerned that only one in five of those new start-up businesses is led by women. I know that she is keen on Twitter accounts, but let me give her a better idea of something that her own Department came up with, although sadly her predecessors refused to implement. Will she commit to monitoring selling to businesses led by women in the supply chain, and help to get British women back into business?

[Anna Soubry]

We know that more women are employed now than ever before. Call me an old-fashioned feminist but—[Interruption.] I understand that Opposition Members could call me far worse than that. I support the many wonderful initiatives that have been introduced to encourage women to come into business and set up their own businesses. It is striking, however, that all the meetings I have had with big businesses have been very male-dominated. We find an abundance of women in the small business sector—[Interruption.] The hon. Lady shakes her head but that is a fact, and that is because women have so much talent.

[Antoinette Sandbach (Eddisbury) (Con)]

12. What plans he has to support the science sector in the next five years.

[The Minister for Universities and Science (Joseph Johnson)]

In the previous Parliament the Government demonstrated our commitment to science by protecting the science budget, even as we were forced to make discretionary savings of £98 billion elsewhere. Over the next five years, as we saw in our manifesto, our commitment to science will run through it like the words in a stick of rock. We have reaffirmed our commitment to investing £1.1 billion of science capital, rising every year until 2021, including £2.9 billion on grand challenges.

[Antoinette Sandbach]

Thornton science facility was handed by Shell to Chester University, which is attended by many of my constituents. With large, high-skill employers such as Airbus, Bentley and others in the north-west, what more can my hon. Friend do to link employers to educational institutions and encourage the uptake of STEM— science, technology, engineering and maths—subjects?

[Joseph Johnson]

I agree with my hon. Friend that Thornton science park deserves national recognition as an exciting regional centre for innovation, enterprise and higher education. I also welcome the strong leadership from the University of Chester in drawing together an impressive range of partners from business and academia. We need to see more such collaboration between universities and business all over the country.

[Daniel Zeichner (Cambridge) (Lab)]

Does the Minister appreciate that many of our great scientists at places such as the Babraham Institute and the Laboratory of Molecular Biology in Cambridge are civil servants and stuck on the civil service pay freeze, and are being offered much better terms abroad? Will we compete? It is time to do so.

[Joseph Johnson]

All parts of the public sector have been obliged to contribute to the national savings effort undertaken in recent years, but I would note to the hon. Gentleman that research councils have been exempted from those constraints and, as a consequence, have been able to compete around the world in attracting the best scientists to this country. They are doing so extremely effectively.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

Our universities are critical to the strength of our science base, but following the tripling of tuition fees in the last Parliament, four out of five students no longer think that their courses are value for money. The Minister’s predecessor said that he saw no case for raising tuition fees in this Parliament. What does the Minister think? Will tuition fees go up in this Parliament? A simple yes or no will do.

[Joseph Johnson]

Due to the financial situation we inherited, we are of course forced to review all BIS spend—as all Departments are reviewing their spend. As our manifesto made clear, the Government are committed to continuing to ensure that we have a stable and sustainable funding regime for our universities and higher education institutions. They are secure and financially stable, and we will continue to ensure a fair balance of interests between taxpayers and students.

[Christina Rees (Neath) (Lab)]

13. What recent estimate he has made of the proportion of jobs in the economy which are low-skilled.

[Melanie Onn (Great Grimsby) (Lab)]

15. What recent estimate he has made of the proportion of jobs in the economy which are low-skilled.

[The Minister for Skills (Nick Boles)]

We are focused on increasing the number of jobs at all levels of skill and on investing in 3 million apprenticeships, which will help people to improve their skills and command higher wages.

[Christina Rees]

The Welsh Labour Government have created more than 17,000 job opportunities for 16 to 24-year-olds to develop skills and earn the minimum wage through their flagship scheme Jobs Growth Wales. Some 82% have been taken on by private firms, which has led to apprenticeships, further education and permanent work. Jobs Growth Wales has also enabled more than 270 young entrepreneurs to start new businesses. Does the Secretary of State have plans to roll out similar schemes this side of Offa’s Dyke?

[Nick Boles]

We welcome efforts by all parts of the UK to grow jobs and apprenticeships, and we have our own policies here. We will produce 3 million apprenticeship starts at all levels over the next five years, but we welcome anything else that the Welsh Government do to create jobs and apprenticeships.

[Melanie Onn]

Thanks to Labour’s groundbreaking commitment to tackling climate change, investment in wind energy in Grimsby has created much needed high-skilled jobs in our local economy. With 25% of our young people not in education, employment or training, support for that industry is essential for my constituents’ future, but the Government have now announced the removal of subsidies for onshore wind. What effect does the Minister expect that to have on investor confidence in the offshore wind sector?

[Nick Boles]

It is not my area but, as the hon. Lady said, the cut in subsidies is for onshore wind. Her constituency is focused on offshore wind, where the Government’s support is committed and going up. I welcome the high-skilled jobs that that support is bringing to her constituency, which has seen a 38% fall in the number of people claiming benefits since 2010.

[Kit Malthouse (North West Hampshire) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Business, Innovation and Skills and President of the Board of Trade (Sajid Javid)]

May I first pay tribute to my predecessor, the equally hirsute former Member for Twickenham? As part of the coalition Government, Dr Cable did a great deal to support British business.

Speaking of former members, I see that last month Lord Sugar resigned his membership of the Labour party, citing its negative business policies and general anti-enterprise approach. It seems that while the Government are busy creating 3 million more apprenticeships, Lord Sugar has told the Opposition that they are all fired.

[Kit Malthouse]

As a small businessman—I draw the attention of the House to my entry in the Register of Members’ Financial Interests—I welcome the Government’s work in the past four years to roll back the red tape that has dogged small businesses. Now that the Government are firmly in control of the Department, can Ministers reassures us that they will redouble their efforts? In particular, will they develop measurable targets, for cutting red tape and administration for small business, against which we can measure success?

[Sajid Javid]

I fully agree with my hon. Friend. We will continue to work very hard to cut regulations, building on the very successful red tape challenge in the previous Parliament and the policy of one in, two out. Cutting regulation for businesses is like a tax cut for those businesses. The only difference is that it does not cost the Exchequer anything, so we should cut as much regulation as possible.

[Mr Chuka Umunna (Streatham) (Lab)]

Britain has the worst productivity in the G7, bar Japan. Proper adult skills provision, not just apprenticeships, plays a vital role in addressing that, but the adult skills budget has been cut by 35% in the past five years. Now the Chancellor tells us that a further £450 million is to be taken out of the Department’s budget, which could lead to the end of further education as we know it. In the light of these very real concerns, what assessment has the Business Secretary undertaken on the risks posed for the sector? Will he now guarantee that no college will close as a result of what he and the Chancellor are going to do?

[Sajid Javid]

One of the most important things for businesses, and for a vibrant economy, is making sure we continue to deal with the record budget deficit we inherited from the previous Labour Government. The hon. Gentleman knows that himself. He has been busy telling the press very recently:

“to be running a deficit in 2007, after 15 years of economic growth, was…a mistake.”

He understands the importance of this, and it means the Government have to make difficult decisions. He also said very recently to the Financial Times that

“We are starting from square one.”

I think he was talking about the economic credibility of the Labour party. I do not think that was an accurate statement; I think he was—

[Mr Speaker]

Order. The Front-Bench exchanges have to be brief. A lot of Back Benchers want to get in. It is very self-indulgent to have these long-winded exchanges from the Front Bench.

[Mr Umunna]

When consolidating, you have to make appropriate choices—you do not want to cut off your nose to spite your face. If we want to increase revenue, we need to increase productivity. Look at South Gloucestershire and Stroud College, which the Secretary of State attended: this month it confirmed that 70 staff posts are in danger due to the reduction in its adult learning funding. The principal of that college said:

“we need to reduce our costs in line with the reduction in funding to maintain our solvency.”

Should the alarm bells not be ringing when his own college is citing issues of solvency before we have seen the full scale of what he is going to do to the productive capacity of the economy?

[Sajid Javid]

It was an excellent college—[Hon. Members: “Was!”] And it still is. I know many people who attend the college and they speak of it very highly. The important point is that all colleges, not just that college, have the resources they need to do their jobs. We will not put that at risk, especially as they continue to invest in apprenticeships, which are one of the surest ways to give people the training they want and to ensure they have skills that are wanted in the marketplace.

[Bob Blackman (Harrow East) (Con)]

T3. I have been contacted by further education colleges in my constituency that are concerned about the decisions being made in-year to reduce funding. Will my right hon. Friend lay out a strategy that enables colleges to have a five-year programme, even if it means a gradual reduction in funding?

[The Minister for Skills (Nick Boles)]

I know my hon. Friend recognises that difficult choices have had to be made and will have to be made during the spending review to bring the deficit down. It is that process of deficit reduction that has led to the massive growth in employment. I absolutely hear the argument he makes. Long-term certainty would be of tremendous value to colleges, and I will definitely make sure that that argument is made.

[Jeff Smith (Manchester, Withington) (Lab)]

T2. Will the Secretary of State tell me what discussions he has had with the Secretary of State for Transport to ensure that business and growth do not suffer as a result of the delay to the electrification of the trans- Pennine line?

[Sajid Javid]

I was disappointed by that recent news, because it is important that we continue to invest in infrastructure—not least for increased productivity and, therefore, jobs growth. I have not yet had a discussion with the Transport Secretary, but I am looking forward to doing so.

[Mr Christopher Chope (Christchurch) (Con)]

T5. Does my right hon. Friend think that the CBI’s poverty of ambition for a radical new relationship with the EU is attributable to the fact that the CBI receives funding from the EU?

[Sajid Javid]

The point I made yesterday to the CBI was not just about the CBI, but was a call to all business groups. The best way to get the EU reforms that many of them seek is for them to help the Government with their negotiations, speak to their partners in other European countries and then make up their minds at the end of the process.

[Simon Danczuk (Rochdale) (Lab)]

T4. I am sure the Secretary of State will agree that helping businesses to grow and develop is a key aim of the devolution and northern powerhouse agendas. Will he explain, therefore, why the word business does not appear anywhere in the Cities and Local Government Devolution Bill?

[Sajid Javid]

Not only do I agree with the hon. Gentleman about the importance of business, but my father’s first business began in his constituency, so I understand the importance of this to people in Rochdale and elsewhere. It is important that the word “business” and the importance of business appear throughout Government policy, as they do in the Conservative manifesto and, as I am sure he will hear next week, in the Budget.

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

T6. Low-paid workers in my constituency will have been pleased to see the first above-inflation rise in the minimum wage since the financial crash, but what more can the Government do to encourage employers to pay the living wage where affordable?

[Nick Boles]

My hon. Friend is absolutely right. It is tremendously welcome that, as a result of the recovery, it has been possible for the Government to implement this second increase in the minimum wage—and the first that is higher than the rate of increase in both inflation and average earnings—which takes the minimum wage to £6.70. We want any employer that can afford to pay the living wage, without losing jobs, to do so, and we encourage them all to think of doing so soon.

[Melanie Onn (Great Grimsby) (Lab)]

T9. Workers at the Young’s Seafood factory in Grimsby are worried for their futures after Sainsbury’s ended a contract with it. Grimsby already has the 17th highest unemployment rate in the country, and in the past few years it has seen several established companies leave the area, leaving behind nothing to replace them. Given that the Young’s site provides 500 skilled jobs, what support can the Government offer to avoid further losses of skilled jobs?

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

Officials from my Department have already met people at Young’s in her constituency, following the question from my hon. Friend the Member for Cleethorpes (Martin Vickers). Those meetings are continuing. I assure the hon. Lady, however, that if it is bad news, all the good support she would imagine coming from the Department for Work and Pensions to make sure people can find new work will be put in place. None the less, I am more than happy to meet her and my hon. Friend to discuss the matter.

[Andrew Bingham (High Peak) (Con)]

T7. The Minister knows my background and support for small businesses in High Peak. I am delighted that 135 new businesses were set up in my constituency in the last Parliament, leading to more than 4,000 new apprenticeships. Will he tell me and my constituents what plans he has to build on this record, see unemployment fall and provide more opportunities across High Peak, particular for young people?

[Nick Boles]

My hon. Friend reminds us that this is a “one nation” recovery that is benefiting all parts of the country, including his own stunningly beautiful constituency. We are determined over the next five years to create thousands more businesses, millions more jobs and millions more apprenticeships for his constituents and the constituents of all hon. Members.

[Mr Iain Wright (Hartlepool) (Lab)]

May I congratulate the Secretary of State on his appointment and wish him and his ministerial team every success? On Thursday, he announced the sell-off of part or all of the UK Green Investment Bank, but it is unclear what proportion will be sold off. When it was established in 2012, the bank’s impact assessment said it was the only option that addressed market failure and barriers. How have these market failures been fully addressed and how will the Government’s sketchy plans for the most active green investor in the UK not undermine market confidence?

[Sajid Javid]

I congratulate the hon. Gentleman on being elected Chairman of the Business, Innovation and Skills Select Committee and look forward to working with him. Since it was set up three years ago, the UK Green Investment Bank has been very successful. In fact, this year, for the first time, it is expected to turn a profit. I want to make it stronger and even more successful, however, and one of the best ways to do that is to ensure it can access both private capital and private equity—

[Mr Speaker]

Order. I call Michael Tomlinson.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

T8. I welcome the Government’s work to encourage businesses to take more people on by reducing the burden of employment law, helping more people in my constituency to get into work. What reassurance can the Secretary of State give me that he will further reduce the burden of regulation, thus helping businesses in Mid Dorset and North Poole and across the country?

[Anna Soubry]

I welcome my hon. Friend to his place. As he has heard, it is an absolute priority for the Government to continue the great work we achieved over the last five years, with £10 billion-worth of saving by deregulation and a promise of £10 billion more to come in the next five years. I look forward to working with my hon. Friend and others—via Twitter or whatever—so we can find out where the regulations are that do not need to be there, get rid of them and make sure that we keep Britain working.

[Wes Streeting (Ilford North) (Lab)]

Having failed to rule out a hike in university tuition fees during this Parliament, can the Minister rule out at least that there will be no changes either to tuition fee levels or the terms of repayment on student loans for existing students and graduates? Yes or no?

[The Minister for Universities and Science (Joseph Johnson)]

The hon. Gentleman has previous experience as president of the National Union of Students, so it is valuable to us to have him here. He will know that the OECD has praised the UK as being one of the only countries in the world to have come up with a sustainable way of funding higher education, and this Government have every intention of continuing to ensure that our higher education system is funded successfully and sustainably over the years ahead.

[Amanda Milling (Cannock Chase) (Con)]

T10. Small businesses are a substantial part of the local economy of my constituency. I was pleased to welcome the news that, since launch, 22 people have already taken up start-up loans worth nearly £140,000 to start new businesses in Cannock Chase. However, relatively speaking, this is low. What steps are the Government taking to encourage more people to take advantage of this scheme in areas such as my constituency?

[Anna Soubry]

I welcome my hon. Friend to her place. We know that start-up loans have led to considerable success. One thing I am keen to do is to ensure that we keep all small businesses, especially entrepreneurs and people looking to start up their business, well informed and absolutely aware of the various schemes available to them. I know the British Business Bank, through its website and other media, can provide that information, and I want to make sure that it is working, so that in the real world, people have access to funds, to schemes and the advice they often need when starting up their business.

[Susan Elan Jones (Clwyd South) (Lab)]

The Secretary of State will be aware of the great concern about the Government’s failure to meet export targets. With UK Trade & Investment’s own surveys saying that more than a quarter of businesses reckon that there is no business benefit from UKTI, how does he propose to deal with this problem?

[Sajid Javid]

We have seen some growth in exports over the last five years, but not enough. This remains a challenge, which means looking carefully at UKTI and improving what it does. That is exactly what the Minister for Trade and Investment, Lord Maude, is doing. The hon. Lady may know that we have seen record inward investment, which is also important and a job of UKTI to promote. It has now topped £1 trillion—the highest in Europe.

[Stephen Hammond (Wimbledon) (Con)]

The Secretary of State will know that from this September, companies will have two years in which to introduce the new general data protection regulations, estimated to cost £2 billion. Will he ensure that his Department does all it can to minimise costs and to make industry aware, so that they can comply within the timescale?

[Anna Soubry]

I thank my hon. Friend for his question; he makes an important point. I know my diary is going to get busy, but I would very much welcome a meeting to discuss this with him because—[Interruption.] I do not know why Labour Members seem to be complaining about Ministers meeting Back Benchers—I would be happy to meet even the right hon. Member for Birmingham, Hodge Hill (Liam Byrne). I look forward to working with my hon. Friend on this important matter, of which we are aware. We must make sure that we do this properly.

[Gavin Robinson (Belfast East) (DUP)]

Has the Secretary of State had an opportunity to consider last week’s report from the Northern Ireland Consumer Council, which highlights the barriers to online consumers getting postage to Northern Ireland, the islands or the highlands of the United Kingdom? What steps can the Secretary of State take to create, dare I say it, a “one nation” consumer market where the inhibitors and the barriers are removed once and for all?

[Sajid Javid]

I have not yet had an opportunity to look at the report, but now that the hon. Gentleman has mentioned it, I shall certainly do so, and I shall then be able to respond to him on the issue that he has raised. He may be interested to know, however, that just today it was reported that consumer confidence throughout the United Kingdom had hit a 15-year high, which means that the Government’s long-term economic plan is working.

[Several hon. Members]

rose—

[Mr Speaker]

Order. I am sorry, but we must move on.

Points of Order

Tuesday 30th June 2015 Commons Chamber

12:35

[Angus Robertson (Moray) (SNP)]

On a point of order, Mr Speaker. Have you received any notification from the Government that they intend to announce plans on Thursday to restrict the rights of Scottish Members of Parliament here in the House of Commons, even if the matters concerned have an impact on the Scottish budget? The Daily Telegraph reports today:

“Number 10 hopes to use an obscure parliamentary procedure known as standing orders to lock Scottish MPs out of shaping legislation that only affects English voters. The move needs just a single vote of approval from MPs to be put into law in a move that would circumvent the months of parliamentary scrutiny which comes with full legislation.”

Have you been given any notice of those proposals, Mr Speaker, and have there been any discussions with you about the potential role of the Speaker in certificating such procedures?

[Mr Speaker]

I have a number of things to say to the hon. Gentleman. First, in so far as there are periodic discussions on a wide range of matters involving the Chair, those discussions take place properly between the participants. The matters that are discussed are not aired on the Floor of the House. I hope that the hon. Gentleman will respect the significance of that principle and its application in this context.

Secondly, I have received no formal notification whatsoever of Government intentions on the matter relating—as the hon. Gentleman said—to Thursday. I think the hon. Gentleman knows that this is an issue that has been discussed over a period, and, if memory serves me, his right hon. Friend the Member for Gordon (Alex Salmond) aired it only the other day in a point of order; so it is not a novel concept.

Thirdly, let me say very gently to the hon. Gentleman, who is an experienced denizen of the House, that he is far too worldly wise to be beguiled or swept along by the journalistic licence that causes a scribe to refer to Standing Orders as an obscure device. There is nothing obscure about Standing Orders. The hon. Gentleman, exercising his customary patience and statesmanship, must await the development of events.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

On a point of order, Mr Speaker. It concerns yesterday’s business. Some of us were very concerned about the mixed nature of the Prime Minister’s statement. Many of us thought that two separate statements would have been more appropriate. Did you take that into consideration, Mr Speaker, when the Prime Minister made his request to make a statement? Some of us found it very awkward that a tragedy—a deeply felt tragedy—was mixed up with a report from a European meeting that the Prime Minister had attended. They did not seem to us to sit well together.

[Mr Speaker]

I am grateful to the hon. Gentleman, who is a very experienced Member of the House. The short answer is that it was entirely a matter for the Prime Minister. Let me add—just to put the matter in context, and so that the hon. Gentleman is not misled—that it would always be a matter for the Minister in question, whether that Minister be the Prime Minister or any other Minister. I note what the hon. Gentleman has said, and it should be heard on the Treasury Bench, but it is still a matter for Ministers to decide.

In the circumstances—and I think that the Prime Minister had very good intentions in seeking to address the House on both subjects, even if the hon. Gentleman did not think it was the right way to go about things—I thought that my role was to try to maximise the number of contributors, bearing in mind that some Members would want to raise the atrocious events in Tunisia, while others would be more focused on the matters appertaining to the European Union.

The hon. Gentleman is very experienced, and I think he will testify that exchanges on statements nowadays tend to last somewhat longer. My own view is that the interests of the House, rather than the convenience of a Minister, should come first. I know that that does not altogether meet the hon. Gentleman’s concerns, but he has put them on the record, so let us see how matters progress. He may find that, as he is somewhat of a sage, his counsel will be heeded in future.

I think that the point of order appetite has been satisfied. The Clerk will now proceed to read the Orders of the Day.

Scotland Bill

Tuesday 30th June 2015 Commons Chamber

[3rd Allocated Day]

Further considered in Committee

[Natascha Engel in the Chair]

Clause 19

Disability, industrial injuries and carer’s benefits

12:41

[Ian Murray (Edinburgh South) (Lab)]

I beg to move amendment 128, page 21, line 39, leave out from “of” to the end of line 7 on page 22 and insert

“a disabled person or person with a physical or mental impairment or health condition in respect of effects or needs arising from that disability, impairment or health condition.”

The current definition of ‘disability benefit’ used in the Bill is restrictive and could place unnecessary limits on the kind of replacement benefit the Scottish Government has the power to introduce. It may not, for example, allow the Scottish Government to introduce a benefit to assist people with very low level disabilities or those for whom the effect of their disability is largely financial.

[The Second Deputy Chairman of Ways and Means (Natascha Engel)]

With this it will be convenient to discuss the following:

Amendment 112, page 22, leave out lines 6 and 7.

Removes the word “short-term” in the clause devolving disability benefit. It is not clear what “short-term” means in this context, how it will be defined or whom it may exclude from receiving the benefit.

Amendment 48, page 22, line 45, leave out sub-paragraph (a).

Clause 19 stand part.

Amendment 115, in clause 20, page 23, line 27, after “financial”, insert “or other”.

This amendment would enable the provision of assistance, in relation to benefits for maternity, funeral and heating expenses, in a form other than cash.

Amendment 49, page 23, line 33, leave out “8” and insert “9”.

Amendment 50, page 23, line 34, leave out “8” and insert “9”.

Clause 20 stand part.

Amendment 12, in clause 21, page 24, leave out lines 9 and 10.

Clause 21 stand part.

Amendment 129, in clause 22, page 24, line 27, leave out from “who” to “appears” in line 32.

The current Exception 6 would extend the power to provide discretionary housing payments only to those already in receipt of housing benefit. Those who lose entitlement to any housing benefit as a result of the under-occupancy charge are precluded from accessing discretionary housing payments. The amendment seeks to allow the Scottish Parliament to mitigate the impact of the bedroom tax.

Amendment 116, page 24, leave out lines 36 to 48.

This amendment would remove some of the restrictions, including those relating to sanctions, in relation to discretionary housing payments.

Amendment 13, page 24, leave out lines 36 and 37.

Amendment 132, page 25, leave out lines 1 to 8.

The exception in the Bill could be problematic where claimants have had their housing benefit wrongly suspended. The amendment would allow the Scottish Parliament to provide discretionary housing payments in cases which might be regarded as arising from non-payability of a reserved benefit.

Clause 22 stand part.

Amendment 8, in clause 23, page 25, line 28, leave out “short-term”.

Amendment 117, page 25, leave out lines 30 to 37.

This amendment would broaden when discretionary housing payments can be made by removing some restrictions including those relating to sanctions.

Amendment 111, page 25, line 39, leave out “occasional”.

Amendment 131, page 25, line 45, at end add “or

(b) who are part of a family facing exceptional pressure.”

Clause 23 stand part

New clause 31—New benefits—

“In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 8 (see section 23 above) insert—

“Exception 9

A benefit not in existence at the relevant date provided entitlement to or the purpose of the benefit is different from entitlement to or the purpose of any benefit that is—

(a) in existence at the relevant date,

(b) payable by or on behalf of a Minister of the Crown, and

(c) otherwise a reserved benefit.

For the purpose of this exception—

“the relevant date” means the date of introduction into Parliament of the Bill that becomes the Scotland Act 2015;

“reserved benefit” means a benefit which is to any extent a reserved matter.”

This New Clause broadens the circumstances under which the Scottish Parliament can create new benefits, as recommended by the Smith Commission.

[Ian Murray]

This afternoon, we are competing with the BBC’s coverage of Wimbledon; I hope we do not damage its ratings as Andy Murray kicks off his tournament. Of course, everyone in the House wishes Andy Murray well—not just for today’s match, but for the rest of the tournament. We apologise in advance if nobody watches his tennis match because their eyes are focused on this Chamber.

It is a privilege to speak on the Bill’s welfare provisions, to move amendment 128 and to speak to the other amendments as well as the very important new clause 31, which stands in my name and those of other hon. Members. I hope that Scottish National party Members—I had called them a braying mob, but there are slightly fewer of them this afternoon than last night—will not implode when I start by complimenting them: we will support their amendments 115 and 131, to which I have also added my name.

This area of the Bill devolves to the Scottish Parliament new and substantial powers over welfare, transferring to it £2.5 billion-worth of welfare responsibility. This is a real opportunity for Scotland; today we could pass amendments that fundamentally transform the Scottish Parliament’s relationship with the welfare system. It would then be up to the Scottish Government of the day to design the system that they want, and that the Scottish people have voted for, and find the resources to pay for it.

As much as the SNP has been desperate to be disappointed by the Bill, its approach to the welfare section has been broadly similar to Labour’s. I think that the only major difference arises from the SNP amendments to devolve national insurance. As I said yesterday—perhaps this was lost in the melee of the debate—that is a perfectly legitimate amendment for a party that believes in independence, but we disagree with that fundamental principle. As the party of devolution, we believe in a strong Scottish Parliament within the UK. We passionately believe that it is in the best interests of all Scots and the rest of the United Kingdom that there should be a pooling and sharing of resources, redistributing wealth from the haves to the have-nots.

The Conservatives believe in the redistribution of wealth from the have-nots to the haves. Since 2010, the House has seen a sustained attack on the most vulnerable. It was not the poorest and most vulnerable who caused the worldwide recession, but the reckless gambling on the financial markets. That led to a Government income crisis, which led to a Government obsessed with austerity, and that has choked off demand in the economy, hitting the poorest hardest right across the United Kingdom.

There are many examples, but the most pernicious, unfair and unequal of those welfare changes must be the bedroom tax. It has hit the most vulnerable very hard for the sake of very few savings on the welfare budget. A further £12 billon of unfunded welfare cuts were announced at the general election, with no detail whatever about where they would fall.

The Government’s problem is that they are failing to deal with the welfare system’s underlying problems. For example, the lack of affordable and social housing is increasing the housing benefit bill as many are forced into the much more expensive private rented sector. I see that happening every single day in my constituency.

[Alan Mak (Havant) (Con)]

There are reports in the press that Labour and the SNP are proposing to introduce higher welfare payments in Scotland and higher welfare bills, which the Bill would allow them to do. Does the hon. Gentleman not agree that both parties should spell out which taxes the Scottish people would have to pay to fund those commitments?

[Ian Murray]

We have a number of proposals relating to the Bill, including devolving housing benefit, which we will discuss this afternoon. We think that that money should be reinvested, wherever possible, in the building of social and affordable housing, because that would ultimately bring down the housing benefit bill. The hon. Gentleman tends to forget that if we invest to deal with the fundamental underlying problems in the system, we can bring the benefit bill down.

Getting people into work, introducing higher pay and building social housing to get people out of the more expensive private rented sector would all make a huge difference to the benefit bill. More money would then be available to reinvest in the system. Our double devolution proposals to get the Work programme, the Work Choice programme and Access to Work into the hands of the local authorities, which are in the best position to deliver them, would allow us to reinvest into the system. The Conservatives’ response of simply cutting the welfare bill rather than dealing with the fundamental underlying problems is the reason why the bill has been going up despite all the changes that the Government made during the last Parliament.

Let me make it clear that Labour is the only true guardian of the UK welfare system, supporting pensioners and the most vulnerable against Conservative cuts that will hit working people the hardest and against an SNP group determined to break up the system without having any idea of the consequences. That is why the Bill is so important. According to the House of Commons Library, if the Bill were passed in its present form, the Scottish Parliament would be responsible for 62% of all public expenditure. If the new clause proposing the devolution of housing benefit were passed, that figure would rise to 65%, but that is within the integrity of the UK welfare system.

[Richard Graham (Gloucester) (Con)]

I know that the hon. Gentleman is a reasonable man, and I do not want him to get too carried away with his narrative of how beastly the Conservatives have been to the poorest people. In my constituency, no new social housing was built during the 13 years during which we had a Labour MP. Now, 100 new social houses have been started. His narrative is precisely the one that his party tried, and failed, to get across during the general election. Does he not agree that it is time to look at welfare in a completely different light?

[Ian Murray]

That might be the experience in the hon. Gentleman’s constituency surgeries on a Friday and Saturday, but it is not the reality for my constituents. Many disabled people, and all the disability and voluntary sector organisations that have contributed to these parts of the Bill, have said something completely contrary to what he has just said. That might be the experience in his own backyard, but it is certainly not what I see in my constituency. The Scottish Council for Voluntary Organisations, the Child Poverty Action Group, Shelter Scotland, Enable and many other disability charities have all said that the situation is completely contrary to the one he is describing. I do not think that having the lowest level of house building since the 1920s is anything to be proud of. We should be doing something about that, across the House.

[Simon Hoare (North Dorset) (Con)]

The hon. Gentleman’s preamble was slightly depressing, because it failed to wake up to a fact that I thought Labour Front Benchers had woken up to—namely, that all his party’s intentions and warm words about welfare would come to nothing if they were not underpinned by a strong economy.

[Ian Murray]

I do not think that the hon. Gentleman was listening to my preamble, as he puts it, because I was talking about the underlying problems in the welfare system. They include: a lack of affordable social housing, which pushes people into the more expensive private rented sector, which pushes up the housing benefit bill; a lack of higher pay, which pushes up the benefit bill; and a lack of skills and opportunities to progress in the workplace and increase productivity, which also pushes up the welfare bill. Indeed, in Business, Innovation and Skills questions this morning, the Business Secretary said that the UK had a problem with productivity and that it had to be resolved. If we could resolve those three underlying problems in the welfare system, we might be in with a fighting chance of making life better for people in this country and of bringing the welfare bill down.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Is my hon. Friend suggesting that, although the baseline will always be the UK welfare system, lifting some of the restrictions that the Bill would place on the Scottish Parliament would allow it to build on the provisions?

[Ian Murray]

I shall come on to that. Indeed, new clause 31, which SNP Members have signed, too, incidentally, would essentially give the Scottish Parliament full power to introduce new benefits in all devolved areas and to top up any benefits in reserved areas. Anybody who wished to put together a manifesto for a Scottish parliamentary election would have to determine what they would do with the welfare system and would consequently have to pay for that, but the important principle is that the UK welfare state would remain integral and the Scottish Parliament, as an autonomous and powerful Parliament, would be able to make its own decisions to reflect the interests of the Scottish people.

The exact amount of money that is spent and who spends it are not the key concerns of the Bill, which is about ensuring that powers are exercised where they most benefit the people of Scotland. The Labour party was the architect of the welfare state—the system of social insurance that covers every citizen, regardless of income, from the cradle to the grave and that is perhaps one of our greatest achievements and the purest expression of our common values and shared purpose. As the architect of the modern welfare state, the Labour party will do everything it can to ensure that it serves the needs of people not just across the UK but, crucially in terms of this Bill, in Scotland. That is why we have sought to be the driving force in this section of the Bill, tabling a total of 21 amendments and new clauses, more than any other party, to ensure that the Smith agreement is not only delivered consistently in spirit and in substance but that the Bill goes much further in welfare provisions.

Each and every one of the amendments has a purpose: to improve the lives of families in Scotland while maintaining the fundamental principles of the underpinning of the UK welfare state. May I take the opportunity to thank all the charities and voluntary sector organisations from across Scotland who have assisted me in this task? They do valuable work day to day with those who are most in need, and we should thank them every single day for what they achieve. Without them, society would not operate in Scotland and across the UK. To put it simply, we should all thank them.

I am glad that the SNP has seen fit to support a number of the amendments. We will work closely together to ensure that we can deliver them. In the same spirit of inter-party co-operation and consensus, I have signed a number of the SNP’s amendments that attempt to improve the Bill. Although this is a fairly technical exercise and welfare is hugely complicated, I want to make it clear that fundamentally our amendments will ensure, as I said in response to my hon. Friend the Member for Denton and Reddish (Andrew Gwynne), that the Scottish Parliament has the unrestricted power to create any new benefits in areas that are devolved, in addition to the guarantees of the UK benefits and pension system, as well as the power to top up any benefits that remain reserved in this Parliament. That wide-ranging provision effectively gives the Scottish Parliament the power to design its own welfare system in its entirety. However, unlike others, we are determined to ensure that the welfare state remains an integrated and UK-wide system of social security to allow for the continued pooling and sharing of risks and of resources.

We will also actively pursue our policy of double devolution by devolving as many powers as possible to local communities so that they can be tailored to local needs and circumstance, starting with the Work programme, Work Choice and Access to Work, which we will debate later. Subsidiarity should be at the heart of the Scottish Parliament to ensure that the public are engaged and that there is full community spirit in designing the system that is best for community needs.

Before I speak about Labour’s specific amendments, I want to place on record my disappointment at the comments made by the hon. Member for Dundee East (Stewart Hosie) during yesterday’s debate. He described the proposals in the Smith agreement as “miserable”, and I think that that is quite wrong in the context of this Bill. We should be using this opportunity to improve on the provisions in front of us and to make the system better in Scotland. The Secretary of State has consistently said that he will consider sensible amendments to improve the Bill, both in substance and in spirit, and I hope that he will see many of our amendments on welfare as worth while, tabled in the spirit of co-operation and trying to make the Bill better rather than trying to make political points.

Clauses 19 to 23 concern the devolution to the Scottish Parliament of a number of welfare benefits, including power over disability benefits, industrial injuries allowance and carer’s allowance, the power to introduce top-up payments for people receiving reserve benefits, control over discretionary housing payments and the power to introduce new discretionary payments to help alleviate short-term need. The powers in the clauses are extensive, but there are a number of areas in which I believe they fall short, particularly as regards limiting the scope of the Scottish Parliament to make discretionary payments and create new benefits.

Paragraph 51 of the Smith commission’s report states that the Scottish Parliament

“will have complete autonomy in determining the structure and value of the”

devolved

“benefits…or any new benefits or services which might replace them.”

As I have said, we are committed, wherever possible, to abide by the spirit as well as the letter of the Smith commission’s recommendations. We believe that the term “discretionary”, as applied in this context, should not necessarily refer to the strict definition of the recipient of a payment or the duration or frequency with which they receive that payment. As Professor Paul Spicker stated in evidence to the Scottish Parliament’s Devolution (Further Powers) Committee:

“A payment is discretionary, not because it is short term or individual, but because it is in the power of the delegated authority to determine whether or not the payment will be made.”

However, the Bill as it stands adheres to a more restrictive interpretation of what constitutes a discretionary payment and includes a number of definitions of who can receive benefits and for how long and how often they can receive them, which would limit the autonomy of the Scottish Parliament in a way that, in my opinion, Smith did not intend.

Our amendments seek to ensure that the Scottish Parliament will not face unnecessary restrictions in its provision of discretionary payments to carers, those with disabilities or any other applicant, both in terms of who they are paid to and for how long and how often they are paid.

[Kate Green (Stretford and Urmston) (Lab)]

Does my hon. Friend agree that as well as being an unnecessary restriction in the legislation, the definition is also likely to give rise to a dispute about the ambit of the Bill? A wider definition that would embrace more people would be much simpler to administer.

[Ian Murray]

I agree, and we should be removing as much ambiguity as possible from the Bill. If the Scottish Parliament wanted to introduce a new benefit or a top-up benefit in one of these categories, the definition should be as wide as possible to enable it to do so. We do not want to end up with a dispute between two Governments or between recipients and the deliverer of the benefits or services about the definition in the Act. It would be good to get some clarity about what is meant by clauses 19 to 23.

As an example, I will consider disability benefit. As Inclusion Scotland has argued, the definition of disability benefits in clause 19 might “restrict the autonomy” of the Scottish Parliament in constructing a new disability benefits

“system based on empowering disabled people to lead active and productive lives and promoting the human rights of disabled people and independent living.”

We have therefore tabled amendment 128, which offers an alternative, broader and more flexible definition of disability benefit that would, among other things, allow the Scottish Parliament to introduce a benefit to assist people with low-level disabilities or those for whom the effect of their disability is largely financial.

Likewise, the definition of what constitutes a “relevant carer” is also, we believe, too prescriptive. As Enable Scotland observes, it

“prescribes to whom carers benefits would be payable, stipulating that the recipient would be over 16, not in full time education and not gainfully employed; and requiring that the cared-for person is in receipt of disability benefit.”

The Scottish Parliament’s Devolution (Further Powers) Committee’s report of May 2015 on the Smith commission proposals and the UK Government’s response concluded:

“The Committee is concerned that the current definition of carer in the draft clauses appears overly restrictive and could limit the policy discretion of future Scottish administrations in this area. The Committee recommends that the clause should be re-drafted to ensure that the future Scottish administrations are able to define what constitutes a carer.”

I agree with both Enable Scotland and the Scottish Parliament Committee that the clauses as drafted unnecessarily limit the scope of the Scottish Parliament’s powers and might limit their ability in future to create new benefits. We have therefore tabled amendment 48, which seeks to remove the definition from the Bill to allow the Scottish Parliament to arrive at its own definition. I am pleased that the SNP has supported the amendment and want to reciprocate by supporting amendment 115, which provides for the provision of non-financial assistance as regards benefits for maternity, funeral and heating expenses, and amendment 121, which inserts the additional qualifying criteria for provision of discretionary payments and assistance for being part of a family facing exceptional financial pressure.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Does the hon. Gentleman agree that the overall approach being taken in the UK now is of concentrating on tackling poverty by giving people skills, pushing the work obligation and removing barriers to employment, and that it is important that the welfare system should dovetail with that? There are of course provisions in this Bill to that effect. Does he agree that it would be wrong if Scotland were to take a different approach and go back to a dependency culture?

13:00

[Ian Murray]

It is not the purpose of our amendments to create some kind of dependency culture. Indeed, in my last sentence as the hon. and learned Gentleman was seeking to intervene I said that we accept the SNP’s amendment 121 that addresses payments and discretionary payments for families facing exceptional pressure, and the amendments on carers and disabled qualifications widen the definitions, so it becomes not just about supporting people with a financial need, but about work assistance and getting people back into work.

The issues around the Work programme, the Work Choice programme and Access to Work schemes are the third part of this Bill. We will come on to them later and examine some of the points, because the Government have tended to forget that this process is not just about forcing people off welfare; it is also about giving them the opportunity to get back into work and supporting them through that process. We want to support more people in that way, particularly disabled people and those who find it particularly difficult to access the labour market, and we should make sure the legislation is flexible enough to do that.

[Sir Oliver Heald]

One of the key aims of the UK Government is to ensure work always pays better than being on benefits. Does the hon. Gentleman agree that it would be a pity if any of these reforms altered that balance for Scotland?

[Ian Murray]

I do agree, but I find it a little ironic that the hon. and learned Gentleman says from the Conservative Government Benches that everything should be designed to encourage people into work, when in fact the whole design of the tax credit system was to encourage people into work and the first aim of the Conservative Government seems to be to cut tax credits which would make it less attractive for people to be in work. There is a fine balance to be struck between supporting people into the workplace and in the workplace and making sure work always pays. I think all Members would agree with that principle, but cutting tax credits is not the way to make sure work pays, because it will force people into choosing whether they are better-off out of work or in work. We must strive for much higher pay in order to reduce the welfare bill in tax credits, rather than cutting tax credits; that would be coming at it from the wrong angle.

I was talking about amendments 121 and 115. These are straightforward and common-sense amendments that grant greater autonomy to the Scottish Parliament in the way it provides support to the vulnerable and those at risk in Scotland. We have tabled a number of other amendments to this section of the Bill, including amendment 112 to clause 19 which removes the phrase “short-term” in regard to disability benefits, and amendment 111, which removes the reference to “occasional” financial assistance in clause 23.

Meanwhile, our amendments 12 and 13 to clauses 21 and clause 22 respectively would allow the provision of discretionary financial assistance in a reserved benefit. I do not believe any of these amendments are particularly controversial. Indeed they have garnered a broad cross-section of support from charities, including Enable Scotland, Inclusion Scotland, Learning Disability Alliance Scotland and the Scottish Council for Voluntary Organisations.

[Andrew Gwynne]

These amendments might not be controversial but does my hon. Friend agree that they send the important signal that a strong devolved Scottish Parliament should be able to determine the benefits for the Scottish people?

[Ian Murray]

That is right, because the commitment that was given to the Scottish people after the no vote at the referendum last September was that we would create one of the strongest devolved Parliaments in the world. In order to be able to do that, we have to give the necessary tools to the Scottish Parliament to determine not only its own direction in welfare and a host of other policy areas, but the finances it raises to pay for that. Accountability comes with that kind of financial responsibility and that is what, according to Smith, the Scottish Parliament was missing before the Scotland Act 2012 and the Scotland Bill before us today.

The Scottish Parliament needs to be given the ability to make its own decisions. Using terms such as “short-term”, “discretionary” and “on a short-term basis” do not give that flexibility. If someone were putting forward a new system of welfare in Scotland, it would be up to the electorate to decide whether they wanted that and wanted to pay for it.

I now come to arguably the most important amendment to this part of the Bill, new clause 31, which broadens the circumstances under which the Scottish Parliament can create new benefits, and brings it more into line with what I believe the Smith agreement intended. It has been co-signed by SNP Members and for that I am very grateful. Due to its significance we should be able to use it to transform this part of the Bill.

New clause 31 creates a new exception 9 in section F1 in part 2 of schedule 5 to the Scotland Act 1998—I know all Members will have read that and will know exactly what I am referring to—which allows for the creation of any benefit not currently in existence, payable by or on behalf of a UK Minister of the Crown, or otherwise a reserved benefit. In essence, this would allow the Scottish Parliament to create any new benefit which is not in existence on the date on which this Act is passed. This, I believe, goes significantly further than what is currently in the Bill.

I will be grateful if the Minister responds specifically on why this, in his view, would not be desirable or practicable, because it ensures that the power to create new benefits in Scotland rests with the Scottish Parliament and therefore the Scottish people, and that it has the flexibility and autonomy to exercise this power free from unnecessary restraint, in keeping with the spirit and substance of the Smith agreement. Of course, there will have to be joint working between the Governments to ensure that it is deliverable, and that brings me to an important common theme that has run through these Committee debates so far: the need for both Governments to work much closer together in partnership for the benefit of Scotland. We cannot emphasise that enough. We must have a much more solid partnership working and relationship to make these provisions work.

Let me be absolutely clear on this point so that there is no ambiguity: I believe in the fundamental principle that the final say on the creation of new benefits, the type of benefit created, whom it is paid to, and how long and how often it is paid, should reside with the Scottish Parliament. That is my view, and that is the view of the Labour party across the UK.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

On the exchange my hon. Friend had with the hon. and learned Member for North East Hertfordshire (Sir Oliver Heald) on the impact of the Government policy of cutting tax credits, which will hit people who are in work more than people who are simply on benefits, will these amendments, many of which have the support of the SNP, give any extra protection to the people in Scotland against the impact of cutting tax credits that will happen in England, or not?

[Ian Murray]

New clause 31 allows the Scottish Parliament to top up any reserved benefit in the UK and create any benefit in devolved areas, so there would be an ability to create a system that mitigates the reduction in tax credits. As I understand it, tax credits are not a benefit in terms of the system; they are done through the income tax system, so topping up tax credits would be outwith the scope of this arrangement, but there is no reason why under new clause 31 an additional benefit could not be put in place for people who are in work and have children, for example.

I am very pleased that we have managed to get cross-party support for new clause 31 and if the Government agree it, it would give the Scottish Parliament full autonomy on the welfare state, which I think is what the Scottish people and Scottish Parliament want. If the Government are going to support any amendment, I urge them to make it new clause 31, although I also recommend our other amendments.

[Mr Graham Allen (Nottingham North) (Lab)]

This is an interesting debate and a wide range of points have been made on welfare and benefits in general. I will try to stick to the two detailed amendments I have tabled, but I cannot resist making the general point that I see this as Scotland pioneering many of the things that should be commonplace throughout the Union. I hope that, if we are successful in proposing some of these amendments and progressive ideas, they will be available to everybody else in the Union.

This is the federal Parliament; this is the Parliament of all the four nations. The success of one nation within that Union should lead to the success of all. Those who wish to do this in Wales, Northern Ireland or parts of England should have that opportunity.

I hope we can tie this to the local government and devolution Bill currently in the other place. Its proposals will enable large parts of England—many of the constituent parts are actually larger than Scotland by combined authorities—through effective devolution from the massive, over-centralised state in Whitehall, or through regionally banding together to create their own units, to deploy some of the things that many found commonplace before 2010. I well remember the work programme put forward by my local city council. It was immensely successful but was then abolished by the incoming Government in 2010. I hope very much that places around the Union will be able to use these useful precedents of freedom and liberation at the lowest possible level—in this case at a national or even a sub-national level—to ensure the good welfare of people in their areas.

I have tabled amendments 129 and 132. Exception 6 in clause 22 requires those receiving discretionary housing payments to be also receiving housing benefit at the same time. Amendment 129 removes that prior requirement; it removes that restriction so that those people can receive discretionary housing payments without having first to claim housing benefit. What that does is quite simple: it allows people in the relevant place to make a judgment on this, rather than some “superbrain” in Whitehall. In this case, the Scottish Parliament would have the chance to work out its own manifesto commitments—Labour party manifesto commitments and Scottish National party manifesto commitments to scrap the bedroom tax. [Interruption.] Forgive me, but I think the important part of that sentence was “scrap the bedroom tax”, which we can probably agree on; I hope the SNP will agree with that.

I will not make this consensus fragile by referring to all those SNP Members who voted with the Conservatives last night. That would be to do something that has been pointed in my direction in the past, so I do not want to raise that sensitive issue. We are dealing with an issue—the bedroom tax—where people of good will throughout the Committee can rattle off examples in their own constituencies about how it has been an appalling thing visited on many of our constituents, with most of them being the most vulnerable and least able to look after themselves, and where some with chronic disability have been targeted. The phraseology we always hear—we heard it a little earlier—relates to the idea that people on benefits are scroungers. Never do we hear about the fact that most people on benefits are pensioners who have worked most of their lives to get their pension or are people who have suffered from the chronic nature of their disability and need help—in any civilised society, we would all expect to help each other. Anything, even the limited change I am proposing to mitigate the worst effects of the bedroom tax, will, I hope, be welcomed by all those parties.

[Sir Oliver Heald]

Will the hon. Gentleman give way?

[Mr Allen]

I will, although I must say, through the Chair, that if the hon. and learned Gentleman wants a debate on the broader concept of welfare, I will try to answer his questions but I may well be called to order.

[Sir Oliver Heald]

Does the hon. Gentleman agree that his amendment 132, like the SNP’s amendment 117, undermines the sanctions regime, which is there to ensure that taxpayers’ money paying for good advice to jobseekers is properly spent and that people turn up for their appointments? The sanctions regime is there for a purpose but he is undermining it—why?

[Mr Allen]

The hon. and learned Gentleman may be holding his amendment paper upside down, because it does not say that at all. I will now go on to explain this to him—I always help people, whether they have literacy problems or they are members of the Conservative party, to understand what my amendments mean. I think I know what my amendment means. Amendment 132 states that, if someone suffers financial hardship from having a benefit reduced or suspended, they can receive the discretionary housing payment again—that is in exception 6 in clause 22, and I say that just for the hon. and learned Gentleman. This potentially excludes people who have been sanctioned or had their benefits suspended due to perceived non-compliance with conditions attached to a reserved benefit and to accessing discretionary housing payments.

[Sir Oliver Heald]

On a point of order, Ms Engel. The hon. Gentleman described me as illiterate, but he is in fact describing an undermining of the sanctions regime, which is what I put to him. Is that in order?

[The Second Deputy Chairman of Ways and Means (Natascha Engel)]

That is a point of debate, and we are slightly veering away from the amendment that the hon. Member for Nottingham North (Mr Allen) has tabled. I think we can move on now.

[Mr Allen]

I wish that it were a point of debate, but it is a point of accuracy and I am sorry that the hon. and learned Gentleman cannot accept when he has been inaccurate. I hope he will forgive me for keeping pointing that out to him.

13:15

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

On whether or not people should suffer a further sanction, I want to ask the hon. Gentleman about circumstances encountered by one of my constituents. He was sanctioned for not turning up to an appointment with the Department for Work and Pensions, but his letter had been sent to the wrong street, albeit the same number, and he was not aware of the appointment. Does the hon. Gentleman agree that it is wrong to further impose a sanction after that?

[Mr Allen]

The whole sanction regime needs a proper and thorough review, and it should be based on evidence of the sort the hon. Gentleman brings, as I can, rather than on prejudice and electoral gain. Although it may, sadly, go down well in certain leafy suburbs, those of us who have relatives who are pensioners or people with a disability, and those of us who represent people who are suffering because of the bedroom tax, have a slightly different perspective. I am trying to share it with some Government Members, but, sadly, this is with a mixed degree of success.

On amendment 132, exception 6 uses the example of non-compliance, but if someone’s claim had been wrongly suspended—the point the hon. Gentleman makes and I fully support—they would be put in a worse position as they would also lose discretionary housing payments. If the rhetoric about trying to get people back into work and about making work pay is meant, making people suffer a double disbenefit flies in the face of trying to help individuals back into work. It is a catch-all and a broad brush, and it is insensitive.

One of the best ways to tackle those problems, which we all encounter in government, is to make government as close to people as is humanly possible. My suggestion in this case is that that should be within the province of the Scottish Parliament, but in other cases we may even be talking about a lower tier of government. I wish briefly to deal with the question of double devolution, which was raised from the Front Bench by my hon. Friend the Member for Edinburgh South (Ian Murray), but just to finish on amendment 132 let me say that it would remove the provisions and the possibility I have described altogether. In summary, it would give the Scottish Parliament the ability to pay the discretionary benefit when a person cannot be paid a reserved benefit such as housing benefit. That is relatively straightforward and I hope I have put it as succinctly as possible.

[Ian Murray]

My hon. Friend is making an incredibly important speech, and I just wanted to clarify something for him. The reason we have not signed his amendment is that we had an amendment to devolve the entirety of housing benefit, which would of course take into account all those discretionary housing benefit levels. That is why we have not supported his amendment; it is purely because we have the overarching devolution amendment.

[Mr Allen]

I totally understood that and I see why my hon. Friend has done what he has done. I hope we will get a broader consensus in the Committee as a result.

I wish to make one final point on this couple of detailed amendments, and it relates to double devolution. Again, I am not trying to tread on any sensitivities. I am an irregular visitor to Scotland, but when I go there, as I did over the weekend, I often hear people talk about local government in Scotland being centralised, not, for once, to Whitehall, but to Holyrood. I hope that my good friends in the Scottish National party will be clear when they speak in this debate that they reject a recentralisation of power from Whitehall to Holyrood. Such a recentralisation would fly in the face of proper devolution.

I know that the SNP’s long-term agenda is not devolution but separation of Scotland from the rest of the Union. Separation is the long-term goal of SNP Members. That time may never come, or it may come in some number of years. I do not know; none of us can predict. In the interim, I ask parties of all descriptions in Scotland to put themselves at the service of the Scottish people so that they can get the fullest possible benefit from the devolution proposals. Devolution should not merely transfer the ability to tell people what to do from Whitehall—which I resent—to a Scottish Parliament that has accumulated power. Once power has been fought for, granted from the centre and taken down to the lowest level possible, all of us who believe in devolution must avoid the temptation to look at people on the ground and say, “I wonder what we could have from them? I wonder how we can tell them what to do?”

There are some wonderful precedents in Scotland for the other nations of the Union. I hope that all my friends of different political complexions in Scotland will fight as strongly as they fought for their own Parliament to push as much power down to the local level as is humanly possible. I think that we all agree about the need to be sensitive and help people, but it must be done by people as intimately connected with them as possible. That will be another step of progress.

[Ms Tasmina Ahmed-Sheikh (Ochil and South Perthshire) (SNP)]

The Scottish National party has always spoken of powers for a purpose. The reason we are having this debate is that we were promised, as were the people of Scotland, in the run-up to the referendum that we would have a new federalism that was as near to home rule as possible. I hope that the hon. Gentleman accepts that that is the position of the SNP and what the people of Scotland can expect. We want to grow our economy and bring some fairness to society right now, but the hon. Gentleman took to the Lobby with the Government to support further austerity for Scotland.

[Mr Allen]

Unlike the hon. Lady, I never mistake the interests of the Scottish people for the interests of the Scottish National party. Those of us who believe in devolution can unite with those who believe in the separation and break-up of the Union because we will all be better off if we put the interests of the Scottish people first and learn the lessons that they can teach the rest of the nations of the Union.

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

I shall speak to amendments 115, 116, 117 and 131, tabled in my names and the names of my colleagues, and in support of amendments that have been jointly tabled by Labour and SNP Members, including amendment 48 and new clause 31. All the amendments would strengthen the provisions in relation to the benefits system and bring it more closely in line with the Smith commission recommendations. We should remember that those recommendations were agreed by all five main political parties in Scotland and reflect the democratic demand of our people for the power to make decisions in Scotland for Scotland.

The amendments would improve our social security system by ensuring that it is tailored to our needs and circumstances and fits our policy objectives. That in turn will enhance governance and strengthen democratic accountability in Scotland and make a real difference to the lives our citizens.

It is worth restating that paragraph 49 of the Smith agreement recommended that powers should be devolved on benefits for carers, disabled people and those who are sick—attendance allowance, carer’s allowance, disability living allowance, personal independence payments, industrial injuries disablement allowance and severe disablement allowance. The agreement also recommended devolution of the benefits that currently comprise the regulated social fund—cold weather payments, funeral payments, Sure Start maternity grants and winter fuel payments, as well as discretionary housing payments. It proposed that new arrangements for the Motability scheme in Scotland for DLA and PIP claimants should be agreed.

[Sir Oliver Heald]

I welcome what the hon. Lady is saying. Looking at amendment 117, is the SNP really turning its face against conditionality and the focus on work in the benefits system in favour of a system in which, even if someone does not turn up to see the adviser and is sanctioned, they still get the benefit? How can that be right?

[Dr Whiteford]

On the very last day of the last Parliament, if the hon. Gentleman remembers, the Work and Pensions Committee—with a majority of coalition Members—called for a root-and-branch review of the sanctions regime. The reason why it did that should be self-evident to every Member of the House. We have seen repeatedly how the most vulnerable people in our communities fall foul of that sanctions regime. People with mental health problems and single parents are being disproportionately sanctioned. Members of Parliament can turn up five minutes late to meetings all over this place and do not lose their pay, so why should the most vulnerable and the disabled be subject to sanctions? I agree with the Work and Pensions Committee, which twice in the last Parliament called for a root-and-branch review. We could do so much better in Scotland.

[Sir Oliver Heald]

Will the hon. Lady give way?

[Dr Whiteford]

I will not give way again because I want to make some progress.

Paragraph 51 of the Smith agreement was quite explicit that the Scottish Parliament should have

“complete autonomy in determining the structure and value of the benefits at paragraph 49 or any new benefits or services which might replace them. For these benefits, it would be for the Scottish Parliament whether to agree a delivery partnership with DWP or to set up separate Scottish arrangements.”

I come back to the point about amendment 117. It should be for the Scottish Government to tailor policies that suit our purposes and take cognisance of the circumstances in which we live and work.

Smith was also clear that there should be powers to create new benefits and to top up benefits in reserved areas, by making, as it says in paragraph 54,

“discretionary payments in any area of welfare without the need to obtain prior permission from DWP”.

The agreement says explicitly:

“Any new benefits or discretionary payments introduced by the Scottish Parliament must provide additional income for a recipient and not result in an automatic offsetting reduction in their entitlement to other benefits or post-tax earnings if in employment.”

When we compare these sections of the agreement with the Bill, we see all too clearly that it fails to live up to what was proposed. A number of the amendments in this group seek to rectify some of those shortcomings, and I hope that the Secretary of State will take that seriously and accept some of the practical measures that would substantially improve and strengthen this Bill.

As it is currently worded, the Bill places restrictions on the ability of present or future Scottish Parliaments to provide appropriate support for sick and disabled claimants and those who provide them with unpaid care at home. We have already heard from the hon. Member for Edinburgh South (Ian Murray) that the definition of disability benefit in the Bill places limits on the types of support that the Scottish Government could introduce, and therefore we support the wider scope that amendment 128 would give to shape policy in Scotland—for example, by enabling those with long-term and temporary conditions to receive support. That is a pragmatic but potentially far-reaching improvement.

In a similar vein, amendment 48 would remove the definition of who can be considered a carer. It is important that the restrictions on carer’s allowance eligibility definitions be removed from the Bill. If the Scottish Government could vary the eligibility conditions, or indeed the amount of a new carer’s benefit in Scotland, we could do more for the 62,000 carers in Scotland currently in receipt of carer’s allowance and potentially, depending on the will of Parliament, look at long-standing issues such as how many hours a person can study while being a carer, or how much of someone’s earnings is counted in determining their eligibility.

[Andrew Gwynne]

Is not the important issue that for as long as they wish to remain within the United Kingdom, the Scottish people have the guarantee of the United Kingdom benefits system as the baseline, but through the democratic process of the ballot box, if the Scottish people seek to have a more generous and more compassionate welfare system north of the border, they should be able to have that through the Scottish Parliament?

13:30

[Dr Whiteford]

I entirely agree. The democratic will of the Scottish people over the past few years from the 2011 elections and again more recently—just look around this Chamber—is very clear. They want an alternative to austerity and a fairer social security system.

I am keen to highlight new clause 31, which I hope we will have an opportunity to vote on later. If Labour do not press it to the vote, we will. It gives explicit power to create new benefits in devolved areas, giving effect to that Smith agreement recommendation, and it could be used to improve the support offered to carers. I am pleased that there is a great deal of consensus on the Opposition Benches about the need to move that forward.

Inclusion Scotland, one of the leading networks of disabled people’s organisations in Scotland, has expressed support for amendment 48, and Carers UK and Carers Scotland have said that they welcome

“the flexibility for the Scottish Government to define the terms of the new ‘Carers benefit’ as it provides the Scottish Government with an opportunity to improve carers’ benefits in Scotland.”

That is why there is that degree of consensus on the Opposition Benches. Carers are understandably concerned about the speculation on where the Chancellor’s £12 billion of social security cuts will fall. We know that carers and the disabled people they support are likely to see further squeezes on their already squeezed incomes. These amendments offer an opportunity to consider alternatives.

In Scotland we realised some years ago that carers are integral to meeting the long-term challenges we face in delivering health and community care. Unpaid and family carers are the backbone of the community care system and they are irreplaceable; they are part of the solution to meeting our social care challenges. Since the advent of devolution the Scottish Parliament has pioneered policies that have improved support for carers and those receiving care in the community, but when carers fail to get the support that they need to continue to care, the pressures on our public services become far less manageable.

It is worth pointing out that the positive policies for carers pursued in Scotland under existing devolved powers contrast sharply with what we have seen from Westminster over recent years. Particularly over the past few years, I have met carers under increasing strain because of the failures of the work capability assessment and the implementation problems that have accompanied the personal independence payment regime. One of the consequences of someone losing benefit because of inadequate assessment procedures is often a big knock-on financial impact on carers, who find themselves having to support their relative financially, as well as providing practical care. Also, in the absence of other support, the intensity of the care they have to provide often increases.

[Julian Knight (Solihull) (Con)]

I find the hon. Lady’s speech very illuminating, particularly on carers, an issue close to my heart and that of my constituents. However, a thought occurs to me: is not the real agenda to turn back the clock on benefit reform, effectively ending accountability for those claiming benefits and allowing a return to rampant welfarism, which destroys communities and keeps people trapped in dependency?

[Dr Whiteford]

The hon. Gentleman’s intervention demonstrates that he has completely failed to understand my point—that carers are holding up our social care system. They are providers of care, not benefit recipients. They stop the state having to look after people who would otherwise require considerably more support from the NHS and from community care services. Let us not pretend that carers are a drain on our resources. They are a resource on which we are hugely dependent. Let us face it. The support that we give to carers in no way compensates for the care that they provide for free. [Interruption.]

When carers stop being able to care—often because their own health has been severely compromised—our local authorities and the NHS find themselves having to make—[Interruption.]

[The Second Deputy Chairman of Ways and Means (Natascha Engel)]

Order. Let us have one debate at a time. If hon. Members wish to intervene, they should indicate that. Thank you.

[Dr Whiteford]

The point I was trying to make is that when carers’ own health is compromised, that puts an enormous strain on our local authorities and our NHS. They have to make more crisis interventions, which are costly in human and in financial terms.

There is no doubt in my mind that we can and we must do better for sick people, disabled people and their carers, and that with more effective devolution we can align policy more closely with areas such as health and social care that are already devolved and that are most relevant for carers. What this amendment, like others, really comes down to is who can be trusted to safeguard carers’ interests: a Tory Government with one lonely Scottish Tory MP, or the Scottish Parliament which is democratically representative, accessible and accountable to the people it serves. A clear majority of the people of Scotland have indicated their support for substantial and meaningful delivery of those powers as they were set out in the Smith agreement, as have key stakeholder groups.

I know that the Secretary of State takes a personal interest in support for carers, and I urge him to listen and to accept these amendments that will move us a small step closer to what was promised, and will make a big difference to people’s lives.

Amendments 116 and 117 relate to the proposed powers over discretionary housing payments, other discretionary payments and the sanctions regime. Our clear view is that the proposed powers over discretionary housing payments in clause 22 fail to deliver the Smith commission recommendation for autonomy because they are subject to various restrictions. As the Scottish Government said in their response to the Scottish Parliament’s Devolution (Further Powers) Committee’s interim report on the draft Scotland Bill clauses,

“the exclusion of the ability to make payments where the need arises from the impact of UK Government policies on conditionality and sanctions constrains the effectiveness of these powers in providing necessary support to key groups”.

Our amendments would remove some of these constraints, including those relating to sanctions, which we have already discussed, and bring the Bill into line with the Smith recommendations in relation to when discretionary housing payments and other discretionary payments and assistance can be made.

I very much welcome the support of Labour Members for amendment 115, which enables the provision of assistance in forms other than cash, for benefits related to maternity, funeral and heating expenses. That might seem quite a small thing, but I am sure that many Members will share my experience of people presenting themselves in the constituency office at half-past four on a Friday afternoon facing a weekend with no money and no electricity. Often they have spent the day battling bureaucracy and have come to the MP as a last-ditch attempt to get assistance when all else has failed. Often we can secure emergency food parcels through local church food banks, or access emergency power cards.

This amendment would enable non-cash provision such as power cards or, in the case of funeral payments when people’s bank accounts can be frozen in the event of a sudden death, emergency support for people who are in a very difficult situation. Thanks to innovative technology there are now clever ways to deliver emergency support through mobile phones, which is particularly useful in rural areas such as mine, where there are ever fewer banks and post offices in villages, and those that remain keep ever more limited hours. If people can receive support on a mobile phone that can then be used in their local shop, it provides a lifeline to those most vulnerable and in need of emergency support.

Amendment 131 would amend clause 23 and extend the power of the Scottish Government to provide support in exceptional circumstances. This issue has been raised by the Child Poverty Action Group, which points out that exception 8 is narrowly drafted and does not include families under exceptional pressure among the categories of those potentially eligible for

“occasional financial or other assistance”.

This group is currently eligible for community care grants under the interim Scottish welfare fund and was also eligible for the predecessor social fund administered by the DWP. Failure to reference this group in the Bill and put beyond doubt the protection of families under exceptional pressure as a priority group in their own right could put the health and wellbeing of some of the most vulnerable families at risk. I very much hope that the Secretary of State will look sympathetically at this amendment and accept it. I look forward to the Government’s response.

A letter in The Herald today signed by 12 leading third sector organisations in Scotland points to the concern among charities and civil Scotland about just how damaging the next round of welfare cuts will be. They are right to say that those least able to cope are likely to be hit the hardest. Today MPs have an opportunity to strengthen the Bill so that it lives up to the recommendations of the Smith commission. This would enable us to shape a fairer future for Scotland’s social security system and bring more of those welfare decisions and the levers to grow our economy into the hands of the Scottish Parliament.

This Tory Government have shown time and again that they cannot be trusted with social security. They seem utterly determined to press ahead with eye-watering further cuts of £12 billion. Scotland’s charities are making it clear today that the axe should not be falling on the least well-off in our society but should be shared more equitably.

At the general election the SNP received an unprecedented mandate to speak up for Scotland, and today I am asking Westminster to listen, to live up to the spirit and intent of the Smith commission with regard to welfare, and to deliver the powers we need to shape a social security system that supports and empowers people when hard times hit, rather than punishing them. These amendments take a step in the right direction, and I hope that the Government will accept them.

[Sir Oliver Heald]

I welcome the huge transfer of welfare and tax powers set out in the Bill, but I want to make one point about conditionality. Over the past 15 years or so one of the insights that has struck in the field of work and pensions and welfare is the idea that tackling poverty is not just about benefits; it is also about helping people into work, education and skills and removing barriers to work. Conditionality is part of that process, and it was introduced by Labour. It says to the taxpayer and benefit recipients, “Look, if we pay huge amounts of money to train a cadre of people in the jobcentres, if we hire expert companies to advise jobseekers and if we involve the disability groups in the process, as taxpayers we are making a big investment in trying to help people into work and end the dependency culture.”

Therefore, is it really right for somebody who has been offered an opportunity to go to the jobcentre for an advice session or training not to attend and not to explain why? When they are sanctioned, is it really right for us to say, “Oh, that doesn’t matter, because the taxpayer can just pay the bill and there will be no consequences at all”? That would be the effect of the two amendments that would take out the guts of clauses 22 and 23 and remove conditionality.

[Jim Fitzpatrick]

Does the hon. and learned Gentleman not accept these two points? First, 55% of people in receipt of benefits are already working, so they do not need help into work. They are on benefits, doing the right thing and trying look after their families, but they are the people who will be hurt by the reductions that the Government are proposing. Secondly, although I accept that those in receipt of benefits have responsibilities, the Work and Pensions Committee has said on two occasions, as the hon. Member for Banff and Buchan (Dr Whiteford) mentioned, that the sanctions regime is too fierce and needs to be adjusted. Does he not accept the Select Committee’s findings?

[Sir Oliver Heald]

As the hon. Gentleman knows, I served on the Select Committee for many years. I accept that the sanctions regime needs to be reviewed and that it needs to work properly, but that is not the same as scrapping it. The amendments would undermine the regime so severely that it would be fatally damaged. I am not saying that there should not be a wide transfer of powers; I am simply asking Opposition Members to think about their taxpayers, about those people who are investing in services for jobseekers and all that help. Is it really right that there should be no conditionality?

[Roger Mullin (Kirkcaldy and Cowdenbeath) (SNP)]

During the election campaign I met a man in my constituency called Dave Grieve. He had found very little support at the jobcentre to help him get into employment, so he took the initiative of setting up his own Facebook page. He now has 11,000 followers. He advertises the jobs and promotes the opportunities that are not provided through the jobcentres.

[Sir Oliver Heald]

The Select Committee visited Scotland on occasion—[Interruption.] No, it is a UK-wide Committee, so we visited all parts of the United Kingdom. We found some excellent services. The hon. Gentleman might have a bad example, but overall across the United Kingdom, including Scotland, there are some excellent services that taxpayers are paying for. I think that these amendments would undermine the conditionality that is important to that.

13:44

[Kate Green]

I am pleased to have the opportunity to contribute to this debate. It seems to me that the Secretary of State, when he responds, needs to be very precise about his objection to the amendments that have been tabled in relation to a number of key principles. He will first need to be explicit about whether he believes the proposals to be at odds with, and moving in the opposite direction from, the intention of Smith. I think that a number of the amendments would give better effect to Smith than would the Bill as currently drafted. Therefore, the argument is not about whether we share the same intention, but about whether the legislation is adequate for the task. I hope that he will bear that in mind when responding.

The second thing that some of the amendments that I and my hon. Friends have tabled seek to achieve, as indeed do some of the SNP amendments, is to simplify the legislation. It is a little too complicated and hedged about with who is in and who is out of the provision of certain exceptions, for example in relation to definitions of disability, or too narrow in relation to definitions of carers. I hope that the Secretary of State will be able to explain precisely what his objections are to the amendments that seek to make the legislation easier to give effect to, and plainer in, its intent.

The third thing, which I think is the substance of this debate, is to a degree a sideline debate. It is not specifically about the legislation; it is about our intentions for the welfare state. I think that the Secretary of State should acknowledge that we are talking about a welfare state that enables people. Where benefits enable people’s full social participation—for example, carers’ benefits and benefits that enable disabled people to live decent and independent lives—there is no case for decrying them on the basis that they create a dependency culture, because what they create is a culture of dignity and participation. I hope that he will be able to distinguish between the two.

Having said that, I do not think that there is a wish, certainly on the part of Labour Members, to say that there should not be a conditionality regime. Our party has always accepted that in a conditional system there must be a backstop of sanctions for people who wilfully refuse to comply. Of course, the vast majority do not wilfully refuse to comply; they get caught up in a completely baffling and increasingly unjust system. The hon. and learned Member for North East Hertfordshire (Sir Oliver Heald) has rightly accepted that that system now needs to be reviewed, because it is clearly well beyond what any reasonable conditionality and sanctions regime should look like. However, that is not really the purpose of this legislation or what this debate is about.

I want to make two or three specific points in support of some of the remarks that were made earlier. First, in relation to disability benefits, I think that the way clause 19 has been written will cause considerable confusion and dispute about who falls within the ambit of the benefits that the Scottish Government can create or top up. For example, does the fact that somebody needs to be suffering significant adverse effects and be unable to carry out day-to-day tasks exclude someone who suffers from double incontinence? Arguably, that person should be within the ambit of the legislation, but why do we need to have any doubt? Does “short-term” mean that someone suffering from a fatal illness that is likely to lead to fatality within three or four months will be within the ambit of the legislation? It seems to me that if we stuck to a much plainer description of disability benefits and of who is eligible, we would avoid a lot of unnecessary dispute and heartache, and we might enable the Scottish Parliament to prescribe much more simply that certain conditions or circumstances would automatically give rise to benefit entitlement, as is the case with the UK’s legislation.

[Wayne David (Caerphilly) (Lab)]

On that point, my hon. Friend will know that patients who are terminally ill with less than six months to live are automatically entitled to disability living allowance or personal independence payment. The contrast between that specificity and the vagueness before us today is very stark.

[Kate Green]

That is an extremely good example. Those with a terminal illness and less than six months to live are automatically routed through and fast-tracked to eligibility for PIP. We could also talk about those on dialysis and double amputees, who are automatically able to get the higher rate of mobility, as are those with severe sight impairment. It would be simpler if the Scottish Parliament could legislate to route some of those people through to benefits automatically, as is now the case in UK legislation.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Is my hon. Friend aware that the Motor Neurone Disease Association has cited cases in which people with six months left to live who have had the DS1500 assessment have actually been challenged by the Department for Work and Pensions, which is so insulting as to be mind-boggling? That is why we need very clear guidelines and definitions, which the Bill does not provide.

[Kate Green]

That is insulting, obviously very distressing and quite unjust. I hope that the Secretary of State will look at amendment 128, which seeks to bring clarity to the legislation in relation to entitlement to disability benefits, and, if he is not able to accept the amendment, that he will give us clear reasons why not.

On carers, I recognise that the definitions encompassed in the Bill mirror the current entitlement to carer’s allowance. As I think the hon. Member for Banff and Buchan (Dr Whiteford) was trying to explain, carer’s allowance is both a very useful benefit from the point of view of society as a whole and as an enabling benefit to enable people to provide care for their family and loved ones. We should be very keen to extend those enabling benefits as far as possible and, as she rightly said, in alignment with the landscape of social care and support provided through our public services. If Conservative Members will forgive me, I do not think that it is creating a dependency culture to facilitate carers in their caring role. Indeed, from a UK perspective, I must say that I am rather envious of this opportunity to extend the definitions. I again hope that the Secretary of State, if he feels unable to accept amendment 48, will be able to explain clearly why not.

Finally, I want to pick up on amendment 129, tabled by my hon. Friend the Member for Nottingham North (Mr Allen), who is not in the Chamber at the moment. As I understand it, the effect of his amendment would not be to remove the provision from applying to someone who had been sanctioned, but would mean that someone who had fallen out of the ambit of entitlement to housing benefit altogether—including because the operation of the bedroom tax meant that they could no longer receive that payment—could none the less access a benefit that the Scottish Government might wish to introduce to deal with that situation.

As my hon. Friend the Member for Edinburgh South (Ian Murray) said, we intend to address that point in a later amendment that would devolve the whole of housing benefit. However, it is important to understand that amendment 129 is not about trying to subvert the sanctions regime or the conditionality regime, with all its current flaws, but is about trying to reopen access to support with housing costs to those who have fallen foul of a tax, the bedroom tax, which Opposition Members are united across parties in opposing. I hope that the Secretary of State will recognise that fact.

[The Minister for Employment (Priti Patel)]

This has been a full debate on a range of important issues in which there is a great deal of interest from Members of this House, Members of the Scottish Parliament and people throughout Scotland. As my right hon. Friend the Secretary of State for Scotland has made clear on many occasions during the Bill’s passage, the Government are committed to implementing the Smith commission agreement in full, and we believe the provisions of the Bill meet the spirit and substance of the agreement.

I will explain the Government’s approach as I respond to the proposed amendments in turn. Before I do so, however, I want to reflect on the fact that the Bill will give the Scottish Parliament very extensive new powers on welfare. Benefits for which powers are being devolved accounted for £2.5 billion of spending last year, which is about a quarter of all welfare spending in Scotland outside the state pension.

The clauses on welfare provide tremendous opportunities for the Scottish Government and Scottish Parliament to design, implement and structure welfare in Scotland. Such a huge change should not be underestimated. If the Scottish Government and Scottish National party want to spend more on welfare, they will of course be able to do so. The consequence of the Smith agreement is that the UK and Scottish Governments will in future work together to provide welfare systems for people in Scotland, and we need to co-operate in doing that. Scotland’s two Governments already work together well and achieve a great deal, and I am confident that that will continue as we seek to implement the devolution of these significant welfare powers.

[Pete Wishart (Perth and North Perthshire) (SNP)]

This is now day three in Committee on the Scotland Bill, and thus far the Government have refused to accept any amendments. The Scottish Parliament’s Devolution (Further Powers) Committee has said that the Bill does not meet Smith, and the House of Commons Library says that it does not meet Smith.

[The Secretary of State for Scotland (David Mundell)]

It does not say that.

[Pete Wishart]

Will the Government now agree to accept some of the amendments? I tell the right hon. Lady that she had better not even be thinking of amending the Bill in the House of Lords, out of sight of democratic scrutiny by this House. Will she assure me today that the Government will not table amendments in the House of Lords, but will do so on the Floor of the House of Commons?

[Priti Patel]

As the hon. Gentleman will have heard the Secretary of State say, the Library simply does not say that at all. I will go through the specific amendments that we are debating, and it is important for the hon. Gentleman to hear the points I will make by way of clarification. We have only just started day three, and I think he should give the Government the benefit of the doubt and listen to the arguments that we will advance.

Amendments 128 and 112 relate to the disability benefits aspects of clause 19. The clause, and specifically the interpretation of what is meant by “disability benefit”, is intended to allow the Scottish Parliament to legislate in areas currently covered by attendance allowance, disability living allowance and personal independence payment. There are a number of common features to these disability benefits. The key ones are, first, that they are usually intended to contribute towards additional costs that people with physical or mental health conditions or disabilities can incur; secondly, that they should primarily be directed at people with long-term physical or mental health conditions or disabilities, rather than conditions of a transient nature; and, thirdly, that disability is by reference to the significant effects or needs arising, rather than the fact of being disabled.

I want to focus on the third aim. Clearly, disability and long-term health issues affect many people across the UK. In fact, they affect more than 12 million people under the Equality Act 2010 definition, and disability has an impact on each of those 12 million people in an individual and very specific way. We know that many disabled people can fully participate in society and can work, and that they have no or very modest additional costs, but we also know that others of course experience great barriers that some disabled people or non-disabled people simply do not have. Let us be clear: it is right that support through the social security system is targeted. That targeted support is there to help them, and it is provided by targeting needs and effects, rather than diagnoses or conditions primarily. That is the approach taken for all disability benefits.

It is in that context that the Government have approached their commitment to devolving disability benefits to the Scottish Parliament. By setting out the broad parameters to the benefits, we can confer legislative competence for a defined policy area in such a way that allows the Scottish Parliament to determine how it achieves that and does not tie it to using existing rules and criteria. In that spirit, our approach has not been to take the seemingly more obvious route of somehow mimicking the existing legislative provisions or providing a formulation that sets absolute boundaries; our view is that either of those approaches could place unnecessary restrictions on the Scottish Parliament. Our approach must reflect the benefits as they stand, including, importantly, the fact that they contain exceptions both to allow entitlement and to restrict payment where necessary. I emphasise that the Bill will provide ample flexibility and allow the Scottish Parliament to legislate for myriad outcomes for people who would not meet the more general requirements.

14:00

[Mark Durkan (Foyle) (SDLP)]

The Minister says that the Government do not want to place unnecessary restrictions on the Scottish Parliament. Which of the amendments that hon. Members have spoken to would do that?

[Priti Patel]

I am talking about the definition of a disability benefit, which we want to ensure provides ample flexibility for the Scottish Parliament to legislate for a range of outcomes for people who would not otherwise meet the requirements.

Amendment 48 relates to carers’ benefits. As with disability benefits, our approach has been to describe the key features of the existing carer’s allowance, but clause 19 will not restrict the Scottish Parliament to following all the detailed features of that allowance. For example, it will not be restricted to making a benefit payment to only one carer in respect of each disabled person. Taken together with existing devolved powers in areas such as social care, the clause will ensure that the Scottish Parliament has powers to set out how support for carers is provided, including the rate at which it is paid and whether it is paid as a benefit or provided in some other way.

There is also a broad definition of a disabled person in respect of whom a carer’s benefit can be paid. Amendment 48 would extend the Scottish Parliament’s legislative competence still further, allowing it to provide a carer’s benefit to children under 16, people in full-time education or those who are gainfully employed. I will take each category in turn and explain why we do not consider that there is a case for that expansion of competence.

It is a long-standing principle of the social security system that those under 16 are normally supported not by the benefits system but by guardians, local authorities or parents. With regard to those not gainfully employed, carer’s allowance is designed to recognise those whose opportunities to work are limited because of the time that they dedicate to caring duties. There needs to be a threshold so that we can judge whether a claimant is in employment. The reference to gainful employment provides that threshold.

Those in full-time education are normally supported not by the benefits system but by the education maintenance system of loans and grants. Clause 19 will allow the Scottish Parliament to decide on the details of who carers’ benefits are paid to, how much is paid and what the eligibility criteria should be. The parameters of the definition of “relevant carer” are appropriate and reflect long-standing principles about the purpose of carers’ benefits.

[Ian Murray]

The Minister has explained the restricted definition of carers, but if the Scottish Parliament has full power to set up a new devolved benefit on top of a reserved benefit, why should it not be up to the Scottish Parliament to decide on its own definition of carers? That should not affect the provisions in the Bill.

[Priti Patel]

As I have said, the clause will allow the Scottish Parliament to decide on the details of who carers’ benefits are paid to. I want to make progress now, because I need to come to many other points that have been made.

[John Redwood (Wokingham) (Con)]

Will my right hon. Friend give way?

[Priti Patel]

I will briefly give way.

[John Redwood]

I am grateful to the Minister; I think there is some problem with Ministers getting to the House.

How will the block grant be adjusted to take into account both the extra welfare responsibilities and the extra revenues? That is a rather important point if we are to understand the significance of the clauses on benefits.

[Priti Patel]

That is subject to the discussions taking place on the fiscal framework.

Returning to carers, we recognise and appreciate, as everybody in the House will, the contribution of informal carers, who provide tremendous support to parents and other family members.

Amendment 115 relates to the powers being devolved on the provision of the regulated social fund. Clause 20 will give the Scottish Parliament legislative competence over support currently provided through a number of reserved benefits such as funeral payments and maternity grants, which some Members have briefly touched on today. As with our approach to disability benefits and carers’ benefits, the clause devolves not simply the existing benefits but the subject matter of them. That will give the Scottish Parliament wide-ranging powers to make its own provision for the areas in question.

I wish to respond briefly to Members’ points about amendments 132 and 117—the hon. Member for Nottingham North (Mr Allen), who is no longer in his place, spoke to the former. The Government have made significant changes to the clauses on discretionary payments since they were first published in draft in January, having listened to the views of the Scottish Government, the Scottish Parliament and key stakeholders. The Bill now includes new top-up provisions in clause 21, and we have removed some provisions on discretionary housing payments that people felt would unnecessarily constrain the powers being devolved. Together, clauses 21 to 23 will give the Scottish Parliament significant powers to legislate for discretionary payments to people in Scotland, whether by topping up a reserved benefit or by providing assistance to meet short-term needs. The Scottish Government will be able to provide people with money additional to that provided by the UK Government.

Some Members mentioned welfare reforms and tax credits. I should point out that my right hon. Friend the Chancellor will bring his Budget to the House next week, when further measures will be highlighted. The hon. Member for Banff and Buchan mentioned the letter in today’s Herald and spoke about children, and I want to put it on the record that the proportion of children in poverty is at its lowest level since the mid-1980s.

There has been some discussion of welfare reform. The Government are absolutely committed not just to reforming welfare but to supporting families into work. The best route out of poverty is work, and I make no apology for all our efforts to raise incomes by expanding employment opportunities. We will of course have a debate about employment opportunities in a later group of amendments this afternoon, and because we are short of time I will not touch on that subject now.

Members mentioned sanctions and conditionality. Conditionality is an important feature of our welfare system, and I note that both the Labour party and the Scottish National party have always stated that they agree that there should be conditionality in the system. I put it on the record again that there has been an independent review of sanctions, the Oakley review. The Government have accepted all the recommendations highlighted in it and have already implemented a number of provisions, including improvements to the hardship payments process.

[Kate Green]

The Minister is right that the Oakley report made a number of recommendations about process, but Oakley was not asked to address the real concerns of the Select Committee on Work and Pensions, which were about whether sanctions were being applied fairly and proportionately. What can the Minister say in response to the Select Committee’s recommendations on the problems with the substance of how sanctions are operated?

[Priti Patel]

I am aware of the Select Committee’s report, and the Department will put its views on the record. I urge Members, particularly SNP Members, who have previously mentioned sanctions cases in the House, to write to me directly with specific cases and the points that they wish to make.

[Several hon. Members]

rose—

[Priti Patel]

I will not give way, because we are running out of time.

Members mentioned clause 23, on discretionary payments. I assure the Committee that the clause will not limit the Scottish Parliament’s existing competence and will not prevent the making of discretionary payments to people in families under exceptional pressure.

Finally, I turn to new clause 31, which would insert a new exception into the social security reservation in the Scotland Act 1998, giving the Scottish Parliament the power to create new benefits. As set out on Second Reading and in our discussions with the Scottish Government, the Government agree with the principle in the Smith commission agreement that the Scottish Parliament should be able to create new benefits.

[Wayne David]

Will the Minister give way?

[Priti Patel]

No. I have taken interventions and I want to make my point. Time is running out.

[Wayne David]

On a point of order, Mr Crausby. The Minister has repeatedly said that she cannot respond to the House because time is short. We have until 7 o’clock.

[Priti Patel]

For the record, let me say that we have other groups of amendments to discuss this afternoon. I will happily have that discussion and I will come on to some of those other points in later discussions. There is no excuse.

Perhaps I may continue. We believe that the Scottish Parliament can already create new benefits under either existing powers or those devolved by the Bill. The Smith commission was clear about which welfare powers were to be devolved to the Scottish Parliament, and the Bill delivers those powers in a way that allows that Parliament to replace the benefits and payments for which powers are being devolved.

On areas of devolved responsibility outside welfare, we believe that the Scottish Parliament has the powers to provide financial assistance to people in devolved areas—it currently does so in some areas already. We do not consider that the social security reservation prevents the Scottish Parliament from providing such financial assistance. The proposed new exception would give the Scottish Parliament competence to legislate to create new benefits in any area other than those where reserved powers existed on 28 May 2015—the date on which the Bill was introduced. That would flip the social security reservation on its head. As such, that would not provide a new power to create benefits in areas of devolved responsibility; rather, it would devolve further areas of responsibility to the Scottish Parliament, which is not what the Smith commission agreement called for.

Undermining the social security reservation in that way would simply limit the freedom of the UK Parliament when introducing new welfare benefits, or making changes to existing reserved benefits in the future. We will discuss many other clauses and groups of amendments this afternoon, and I will happily cover some of those points in those discussions. At this stage, however, I urge hon. Members to withdraw their amendments.

[Ian Murray]

I appreciate that the Minister has come to the Dispatch Box to respond to the amendments, but I am slightly disappointed that she has used the excuse of restricted time; we have another five hours left and only two more groups of amendments. As I said at the end of my initial contribution, if the Government are to accept any amendments at all it would be useful for them to accept new clause 31, as that would give the Scottish Parliament power to establish any new benefit in a devolved area and top up any benefit in the reserved area. That would give it a wide-ranging power to design a system of welfare in Scotland that fits the needs of the Scottish people, which is incredibly important. I will push new clause 31 to the vote later today, but in the meantime I will push amendments 128 and 48 to the vote.

Question put, That the amendment be made.

14:13

Division 30

Ayes: 252

---

Labour: 193
Scottish National Party: 52
Liberal Democrat: 4
Social Democratic & Labour Party: 2
Green Party: 1
Plaid Cymru: 1

Noes: 312

---

Conservative: 304
Democratic Unionist Party: 4
Ulster Unionist Party: 2
UK Independence Party: 1

Amendment proposed: 48, in clause 19, page 22, line 45, leave out sub-paragraph (a).—(Ian Murray.)

Question put, That the amendment be made.

14:26

Division 31

Ayes: 258

---

Labour: 196
Scottish National Party: 55
Liberal Democrat: 4
Social Democratic & Labour Party: 2
Green Party: 1
Plaid Cymru: 1

Noes: 314

---

Conservative: 305
Democratic Unionist Party: 4
Ulster Unionist Party: 2
UK Independence Party: 1

Clauses 19 to 23 ordered to stand part of the Bill.

Clause 24

Universal credit: costs of claimants who rent accommodation

[Dr Eilidh Whiteford]

I beg to move amendment 118, page 26, line 20, leave out from “unless” to end of line 25 and insert

“they have consulted the Secretary of State”

This amendment would remove the requirement for the Scottish Government to obtain consent from a UK Secretary of State in relation to Universal Credit and the costs of claimants who rent accommodation.

[The Temporary Chair (Mr David Crausby)]

With this it will be convenient to discuss the following:

Amendment 5, page 26, line 23, leave out paragraph (b) and insert—

“(b) they have consulted the Secretary of State as to when any change made by the regulations is to start to have effect.’

Clause 24 stand part.

Amendment 119, in clause 25, page 26, line 45, leave out from “unless” to end of line 5 on page 27 and insert

“they have consulted the Secretary of State”

This amendment would remove the requirement for the Scottish Government to obtain consent from a UK Secretary of State in relation to persons to whom, and time when, Universal Credit is paid.

Amendment 7, page 27, line 1, after second “of”, insert “the delivery mechanism for”

Amendment 6, page 27, line 3, leave out paragraph (b) and insert—

“(b) they have consulted the Secretary of State as to when any change made by the regulations is to start to have effect.’

Clause 25 stand part.

New clause 28—Housing benefit—

In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 8 (see section 23 above) insert—

“Exception 9

Housing benefit.””

This New Clause provides for the full devolution of Housing Benefit, allowing Scottish Ministers to abolish the Spare Room Subsidy in Scotland, and to provide £1.8 billion of investment in housing in Scotland.

New clause 39—National Insurance—

‘(1) Section F1 of Schedule 5 to the Scotland Act 1998 is amended as follows.

(2) In the illustrations, omit “National Insurance;”

(3) In the exceptions, at the beginning insert—

“National Insurance.”

This new clause would devolve National Insurance to the Scottish Parliament

New clause 40—National Insurance: employers’ contributions—

‘(1) Section F1 of Schedule 5 to the Scotland Act 1998 is amended as follows.

(2) In the illustrations, omit “National Insurance;”

(3) In the Exceptions, after exception 11 (see section (Benefits relating to children)) insert—

“Exception 12

National Insurance so far as relating to contributions payable by employers.””

This new clause would devolve employers’ National Insurance contributions to the Scottish Parliament.

New clause 44—Working age benefits—

In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 9 (see section 23A above) insert—

“Exception 10

Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—

(a) universal credit under Part 1 of the Welfare Reform Act 2012,

(b) jobseeker’s allowance (whether contributions-based or income-based) under the Jobseekers Act 1995,

(c) employment and support allowance (whether contributory or income-related) under Part 1 of the Welfare Reform Act 2007,

(d) income support under section 124 of the Social Security and Benefits Act 1992,

(e) housing benefit under section 130 of that Act,

(f) child tax credit and working tax credit under the Tax Credits Act 2002.

The benefits referred to in paragraphs (a) to (f) above are—

(a) in the case of income-based jobseeker’s allowance and income-related employment support allowance, those benefits as they existed on 28 April 2013 (the day before their abolition),

(b) in the case of the other benefits, those benefits as they existed on 28 May 2015 (the date of introduction into Parliament of the Bill for the Scotland Act 2015).”

This new clause would devolve working age benefits to the Scottish Parliament.

New clause 45—Universal credit: powers to vary other elements—

‘(1) A function of making regulations to which this section applies, so far as it is exercisable by the Secretary of State in or as regards Scotland, is exercisable by the Scottish Ministers concurrently with the Secretary of State.

(2) This section applies to—

(a) regulations under section 8(3)(a) of the Welfare Reform Act 2012 (amount in respect of earned income) so far relating to the work allowance (that is, the amount of a claimant’s earned income that is to be disregarded in calculating the amounts to be deducted from the maximum amount in accordance with section 8(3) of that Act),

(b) regulations under section 10 of that Act (amount in respect of responsibility for children and young persons),

(c) regulations under section 12 of that Act (amounts in respect of other particular needs or circumstances) so far as relating to—

(i) the needs or circumstances referred to in subsection (2)(c) of that section (caring responsibilities for a severely disabled person), or

(ii) needs or circumstances of a claimant in paid work relating to childcare costs,

(d) regulations under any of sections 14 to 22, 24 and 25 of that Act (work-related requirements), and

(e) regulations under any of sections 26 to 28 of that Act (sanctions).

(3) The Scottish Ministers may not exercise the function of making regulations to which this section applies unless they have consulted the Secretary of State.

(4) The Secretary of State may not exercise the function of making regulations to which this section applies in or as regards Scotland unless he or she has consulted the Scottish Ministers.

(5) Where regulations are made by the Scottish Ministers by virtue of subsection (1)—

(a) section 43 of the Welfare Reform Act 2012 (regulations: procedure) does not apply, and

(b) the regulations are subject to the negative procedure (see Part 2 of the Interpretation and Legislative Reform (Scotland) Act 2010).”

This new clause would give the Scottish Parliament greater flexibility to make changes in Universal Credit.

New clause 46—Benefits relating to children—

In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 10 (see section (Working age benefits) above) insert—

“Exception 11

Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—

(a) guardian’s allowance under section 77 of the Social Security Contributions and Benefits Act 1992,

(b) child benefit under Part 9 of that Act.

The benefits referred to in paragraphs (a) and (b) are those benefits as they existed on 28 May 2015 (the date of introduction into Parliament of the Bill for the Scotland Act 2015).”

This new clause would devolve benefits relating to children to the Scottish Parliament.

New clause 53—Childcare element of universal credit—

In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in Exceptions, after exception 6 (see section 22 above) insert—

“Exception 7

The subject-matter of regulations 31 to 34 of the Universal Credit Regulations 2013.””

This will allow the Scottish Government to help parents and families in Scotland by devolving to the Scottish Parliament control over, and the power to vary, the childcare element of Universal Credit.

New clause 55—Social security—

In Part 2 of Schedule 5 to the Scotland Act 1998, leave out Head F (Social security).”

This new Clause would remove from the list of reserved matters in the 1998 Act (and so transfer to the Scottish Parliament) all social security schemes, including National Insurance and housing benefit, as well as child support, occupational and personal pensions and war pensions.

[Dr Whiteford]

I am pleased to move amendment 118 and to speak to our amendment 119 and new clauses 40, 44, 45 and 46, all of which relate to universal credit and further powers over social security.

Throughout the debates on the Scotland Bill, its failure to enact properly the recommendations of the Smith commission has been the key point of contention, and I am conscious that these shortcomings are nowhere more acutely evident than in this part of the Bill. The Smith agreement was crystal clear in paragraphs 43 to 48 that, although universal credit was to remain a reserved benefit, the Scottish Parliament should have specific powers and responsibilities, most notably the

“power to change the frequency of UC payments, vary the existing plans for single household payments, and pay landlords direct for housing costs in Scotland.”

It also states:

“The Scottish Parliament will have the power to vary the housing cost elements of UC, including varying the under-occupancy charge and local housing allowance rates, eligible rent, and deductions for non-dependants.”

The dispute over whether the Bill delivers on the Smith agreement was well aired on Second Reading. Amendment 118, which I intend to push to a vote, and amendment 119 would put the issue to bed. They would remove from the Bill the requirement for the Scottish Government to obtain consent from a UK Secretary of State in relation to universal credit before exercising the new powers. New clause 44 would devolve all working-age benefits to the Scottish Parliament. New clause 45 would broaden the Scottish Parliament’s administrative flexibilities over universal credit. New clause 46 would devolve child benefit and responsibility for the conditionality and sanctions regime.

It is important that the House understands how the dispute is perceived in Scotland by elected parliamentarians and wider civil society. The Scottish Parliament’s cross-party Devolution (Further Powers) Committee, which considered the Bill, did not mince its words. In paragraph 318 of its interim report, it expressed concerns about a number of the welfare provisions. It states that

“the relevant clauses do not yet meet the spirit and substance of the Smith Commission‘s recommendations and potentially pose challenges in any attempt to implement them.”

I hope Conservative Members realise that this was the view shared by their Conservative colleagues in the Scottish Parliament, who were properly represented on that committee.

The committee suggested that this issue and the form of words should be resolved between the two Governments before the Bill’s introduction, but that has not happened. The Scottish Government made proposals to the UK Government for alternative approaches to ensure effective intergovernmental working, but there has been no progress, and consequently this aspect of the Bill has not changed. It is therefore very important that we address the matter today, and that is what our amendments seek to do.

A number of key stakeholder organisations in Scotland have been outspoken in setting out their concerns about the current wording of the Bill and have helped to highlight exactly why we need those powers in Scotland and what we could do with them. The Wise Group, for example, has argued:

“The power to split Universal Credit payments within households, to increase the frequency of payments and to make housing element payments direct to landlords will allow the flexibility in benefit payments to fit with the needs of some of the most vulnerable groups in society.”

The Poverty Alliance has expressed disappointment over what it says is

“ultimately a veto given to the Secretary of State over any future changes to the devolved elements of Universal Credit by the Scottish Government.”

Inclusion Scotland has pointed out that the Bill, as it stands, could result in delays to the implementation of mitigation policies agreed by the Scottish Parliament. It also says that that

“may not be consistent with the spirit of the Smith Commission which implies that the devolved welfare powers can be exercised without the need to obtain prior permission from the DWP.”

14:45

Citizens Advice Scotland has also concluded

“that the clauses do require the Scottish Government to consult the UK Government and to gain their agreement to the timing of any variance”.

It argues that

“enabling the UK Secretary of State to make regulations in an area which is devolved to the Scottish Parliament without its consent does not appear to be consistent with the Smith Commission agreement that the Sewel Convention should be put on a statutory footing.”

It also says:

“whilst the intention appears that the timing of any changes needs to be subject to negotiation on what it is practically possible to do, there is scope for wide interpretation of the circumstances it might be considered ‘reasonable’ for the Secretary of State to withhold their agreement to the Scottish Government utilising their devolved power to make regulations in this area.”

When I spoke earlier, I highlighted the letter in this morning’s Herald from 12 of Scotland’s leading third sector organisations timed to coincide with today’s debate and ahead of the emergency Budget a week on Wednesday. It expresses grave concerns about the severe detrimental impact that the Government’s austerity measures are having on low and middle-income households and highlights the threat to tax credits and other support that would fall within universal credit.

In Scotland, two thirds of the people in receipt of tax credits are in work, while most of the children living in poverty in Scotland have in-work parents, so our biggest challenge is tackling low pay. The powers in the Bill, without the veto, would enable us to tackle these long-term problems that hold back our economic growth and the development of our economy.

[Simon Hoare]

I am paying close attention to the hon. Lady’s remarks. If, as the previous Government did, we start to rein back tax credits, which were effectively a sop to employers allowing them to pay lower wages and thereby depressed the wage market, employers would be forced in the court of public opinion to pay more. In that way, could we not solve the problem, but on the employers’ side of the argument rather than the taxpayers’?

[Dr Whiteford]

If the hon. Gentleman is proposing that we start paying people a living wage and ensuring that people can actually live on the minimum wage, I could not agree with him more. Fundamentally, until we have living wages, those in low and middle-income families will always live below the breadline and struggle to make ends meet.

Those 12 organisations posed a fundamental challenge. As we begin defining the shape of Scotland’s social security system, we need to understand how high the stakes are for people who have been struggling for years and seeing their incomes reduce in real terms.

[Lyn Brown (West Ham) (Lab)]

I am impressed by the hon. Lady’s speech and am obviously listening to it intently, but is it true that the SNP five times voted against making the living wage a requirement in public procurement legislation?

[Dr Whiteford]

The hon. Lady is mistaken. The procurement legislation was hampered by EU legislation. In recent public sector contracts, however, the Scottish Government have started to integrate living wage requirements from the outset. In fact, all the people for whom the Scottish Government are now responsible are on a living wage. There remain many challenges with contracted-out services, particularly at local authority level, but we are trying hard to move towards a living wage in all parts of the public sector. In recent months, we have also made real progress in making sure that private sector employers move towards a living wage. After all, most low-paid jobs are found in the private sector. We need the power to raise the minimum wage to a living wage. When people on low incomes have money in their pockets, they spend it, thereby boosting and strengthening the economy and creating jobs. We saw that when the minimum wage was introduced.

It is incumbent on everyone in the House to listen to the voices of people in Scotland who have put their heads above the parapet on this issue, because they are some of Scotland’s largest and most influential civil society organisations: Citizens Advice Scotland, Barnardo’s Scotland, the Child Poverty Action Group Scotland, the Church of Scotland, Inclusion Scotland, One Parent Families Scotland, Oxfam Scotland, the Poverty Alliance, the Scottish Council for Voluntary Organisations, Shelter Scotland, the Scottish Federation of Housing Associations, the Trussell Trust and last, but by no means least, the Scottish Trades Union Congress. The veto in the Scotland Bill is a barrier to responsive and responsible governance in Scotland.

[John Redwood]

If the Scottish Government did have wider-ranging powers on welfare, as the hon. Lady would like, by how much would they need to put up benefits compared with UK levels to tackle the problems she has identified?

[Dr Whiteford]

The right hon. Gentleman raises an interesting point. It is worth pointing out that, over the past five years, Scotland has spent a lower proportion of its GDP on pensions and benefits than the UK as a whole. The question of what a social security system can afford is dependent on the success of the economy. That is why our amendments are all designed to bring into the ambit of the Scottish Government and the Scottish Parliament those powers that would enable us to grow our economy, run it more effectively and join up the existing devolved powers with the new powers that we propose. Frankly, getting powers over work and powers over benefits covered by universal credit is extremely important. The other really important point is that we protect the most disadvantaged people in our society from the onslaught of Tory cuts. Again and again, the people of Scotland have made it clear that they want an alternative to this austerity regime—and that is what we want to be in a position to deliver.

The Deputy First Minister, John Swinney has pointed out that it is not difficult to foresee that what might appear to be pretty innocuous requirements to consult the Secretary of State and secure his or her agreement could be translated into what is essentially a blocking power. All sorts of excuses could be used to prevent something from happening. As the Deputy First Minister put it, if the Secretary of State has a “reasonable explanation” for why he is acting in such a way, that passes the test as it currently exists in clause 24. In practice, the Bill gives the UK Government the ability to veto decisions made by the Scottish Government and Scottish Parliament. This is not a hypothetical scenario. The Deputy First Minister has pointed out how he spent two years trying to make progress on the block grant adjustment, and was stalled and delayed with more analysis at every turn by the UK Government.

For me, no issue illustrates the shortcomings of the Scotland Bill better than the restrictions it would place on the power of the Scottish Parliament to abolish the bedroom tax. As the Secretary of State knows only too well, this has been an issue close to my heart over the last few years, because of its punitive impact on disabled people in Scotland, its gross unfairness and the enormous pressure it puts on councils and other social housing providers. In Scotland, 80% of people affected by the bedroom tax are in homes with a disabled adult, and there is a chronic mismatch between the house size requirements of tenants and the available housing stock. Back in April 2013, I led one of the SNP’s very few Opposition day debates here in this Chamber during the previous Parliament on that very topic, and the Secretary of State knows that I questioned him on several occasions about the failure of the policy and its deep unpopularity right across the country.

The Scottish Government have mitigated the impact of the bedroom tax by providing discretionary housing payments to everyone affected, but it is important to recognise that we still cannot abolish that legislation, which remains on the statute book. Moreover, the money to mitigate its worst side-effects has had to be found from other devolved policy budgets—and, crucially, the legal liability remains with tenants. It is far from an ideal solution. In order to mitigate the bedroom tax by lifting the cap on discretionary housing payments, the Scottish Government first had to secure the permission of the UK Government, and the protracted and frustrating process they encountered in attempting to secure that permission illustrates, I think perfectly, why we need to lift this veto. It shows how a need for permission can be drawn out for months at a time.

[David Mundell]

I am familiar with the hon. Lady’s point on this issue, but even the First Minister acknowledges that the point from which a request was made to increase the cap, to the legislation reaching the Privy Council, was achieved at a record rate—and it was achieved by the two Governments working very closely together, which can be done on so many occasions.

[Dr Whiteford]

The Secretary of State and I have a different perception of time frames and what they mean to people living on limited incomes. When the Scottish Government sought permission to raise the cap on DHPs, the UK Government used exactly the kind of blocking and delaying tactics that will be left open under the Scotland Bill. These are not theoretical, worst-case scenarios. I would like to refresh the Secretary of State’s memory, as it was early in 2014 when the Scottish Government first sought the UK Government’s permission to lift the cap on DHPs, and I raised the issue on more than one occasion in this Chamber subsequently. In fact, it took until May last year for the Government to grant permission—for something that could have been done overnight. Most of the public organisations I deal with in my capacity as an MP have a 21-day turnaround, yet the Government take months at a time. That is an awful long time for someone living on their uppers and struggling with their income.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

My hon. Friend is making a fantastic speech. Is it not amazing to hear the nanny-esque statements coming from the Conservative Front-Bench team about the Government giving the Parliament permission? That is the sort of thing that they would not tolerate themselves if the European Commission, the French or the German Government were involved, but they expect the Scottish Government to come cap in hand to Westminster when all they want is to do the decent thing for people. It is ridiculous.

[Dr Whiteford]

My hon. Friend makes a very pertinent point.

During the intervening months between the simple request and getting the permission we needed, some of our most disadvantaged citizens continued to accrue rent arrears or had to do without essentials in order to meet their liabilities. That is just one concrete example of how restrictions of this type currently act as a stalling mechanism and a barrier to progressive change, and they demonstrate why we need to get rid of the veto.

Other examples of things we could do with these provisions include the power to maintain direct payments of housing benefit to social landlords—something that I think is in everybody’s interests—and the power to ensure that under universal credit claimants can receive individual payments, which potentially benefits women and children and protects their interests. Then there is the power to equalise the earnings disregard between the first and second earners in a household. Again, given the persistent pay gap in Scotland between women and men, that measure could predominantly benefit up to 70,000 women by up to £1,200 a year. By contrast, if we leave the Bill unamended, we curtail the powers of the Scottish Parliament to enact policies that are overwhelmingly in the interests of our citizens and are supported by them. We risk seeing such measures batted off into the long grass.

We also store up trouble down the line. It is fair to say that the Secretary of State got himself in a richt kirn earlier this month on the “Scotland 2015” programme when he was asked directly about the veto. When the presenter put it to him that

“it could be used to block if there was a political will to do that because who would decide if the Secretary of State was unreasonably withholding consent?”,

the Secretary of State said:

“Well, I would hope that it would never come to that, but because it’s on the face of the legislation ultimately it might be the courts that would decide.”

I fear that the Secretary of State has let the cat out of the bag; I suspect he was a lot more candid than he intended to be. I think we can infer from that very revealing remark that he knows that, in practice, this Bill’s measures will act as a veto on the Scottish Parliament—pure and simple. I put it to the Committee that if the Scottish Parliament has to go to court to enforce the powers devolved in the Bill, it is not worth the paper it is written on.

[Wayne David]

Does the hon. Lady accept that there is a potential constitutional point, too, in that what is being suggested is, in effect, a breach of the Sewel convention, whereby power is given with one hand, but is possibly taken away with the other?

[Dr Whiteford]

That is an astute point. It shows that if we get ourselves into a muddle with the legislation and it is just a kirn, we are storing up trouble down the line. The legislation has to be future-proof as well as present-proof. We must prepare for every eventuality.

We can dance around the semantics of the current wording of the Bill all afternoon, but if Scottish Ministers have to obtain the agreement from UK Ministers on when their measures are to take effect, that is, in effect, handing the UK the ability to block or delay the implementation of policy, frustrating the legitimate democratic process and contravening both the letter and the spirit of the Smith agreement. If the Government have to go to court to enforce these measures, it should be obvious that they are less than adequate. If the Secretary of State still maintains there is no veto, I challenge him to accept amendments 118 and 119, which make that explicit and beyond all doubt.

[Mark Durkan]

rose—

[Dr Whiteford]

I am not giving way, as I am about to wind up my remarks.

This group of amendments comes down to respect—respect for the promises made to the people of Scotland; respect for our Parliament; respect for the democratic process; and, above all, respect for our citizens and our ability to make decisions in our own interests. That is, after all, what meaningful devolution is really all about.

[John Redwood]

I think that the Committee wants to implement the spirit and the letter of Smith, and I look forward to hearing the Secretary of State’s response to the detailed arguments advanced by the hon. Member for Banff and Buchan (Dr Whiteford). I think, however, that when we are dealing with a matter as potentially wide-ranging as universal credit, we also need to think about the money, and about how far it is possible to operate a very different welfare system in different parts of a country such as the United Kingdom. What we have seen in the unfolding and dreadful Greek crisis is that, if a country belongs to a currency union but has not brought its benefits system into line, and if there is no proper system of sharing revenues and expenditures throughout the eurozone, that becomes extremely damaging, as it has for the poor Greeks.

15:00

[Mr MacNeil]

I am sure the right hon. Gentleman is not suggesting that there is an in-line benefits system across Europe. The real problem is austerity. The Greeks were told five years ago that, if they followed austerity measures, their problems would end, but their problems have not ended. They have become worse, because austerity makes things worse. It is nothing to do with welfare; it is to do with austerity.

[John Redwood]

I think that welfare has quite a lot to do with austerity, and I think that we agree. I think that the policies that have been forced on Greece have been too austere. It is quite wrong to make the Greeks cut public spending when they cannot expand their money supply, expand credit or expand the private sector to create the jobs that they clearly need to create in order to make some success out of the cuts imposed on the public sector.

When, after 2010, we conducted policy as a coalition to bring about recovery in Britain—including Scotland—it worked very well, and it was private sector led. We were able to do that because we had a full range of powers over interest rates, money creation, credit and banking, which a nation that has joined a currency union does not have. That is the Greek tragedy. The Greeks are able to carry out only the public sector part of the EU fix, which is the bit that is austere. They are not able to carry out the private sector-led recovery.

Of course, we are not here to talk about Greece; we are here to talk about our currency union. However, I wanted to make that point because, whereas Greece is having to move away from a position in which it shared only currency and is now discovering that it needs to share a great many other policies with the European Union in order to achieve success, in Scotland things are going in the opposite direction.

We have a currency union—a perfectly good currency union, which is supported on all sides. I believe that Members of the SNP are great fans of the currency union and do not wish Scotland to have an independent currency, but they need to consider this: if they do not want proper independence in the sense of having their own currency, and if the currency is to work in the way in which it has worked in the past, there will have to be some basic standards of welfare that are common across the country, and there will have to be agreed systems of transferring money from rich areas to poor ones. There are rich towns and cities in both Scotland and in England. The rule of our system is that those in areas of high income or relative success pay more tax, and those in, say, towns or counties with a lot of poverty benefit from big transfers.

[Mr MacNeil]

I almost feel sorry for interrupting the right hon. Gentleman when he is advancing a good argument for the redistribution of wealth through taxation, and has also admitted that austerity is not a good idea. However, I think that the mention of Greece is erroneous. If we are talking about an optimal currency zone, a better parallel would be Germany and the Netherlands. The independence that those countries have from each other is welcomed by SNP Members. I hope that the right hon. Gentleman will go a little further than the enlightened remarks that he has made so far, and will agree with us that Scotland and England should be as independent from each other as Germany and the Netherlands.

[John Redwood]

I am not prepared to go that far. I think that there can be problems in the euro currency zone between Germany and the Netherlands, because they do not have the full range of common policies that they may need. At present, it appears that the Dutch and German economies are sufficiently synchronised for the arrangement not to cause problems in the Netherlands, but that is clearly not true of Portugal, Spain, Ireland or Greece. The fact that there are more countries that it does not fit than countries that it does fit implies that there is something wrong with the fundamental architecture of the euro. That is why I am anxious for us to bear it in mind, when we are debating the issue of how much welfare discretion there should be, that a common welfare system is normally one of the characteristics of successful currency unions.

Yes, I do believe in redistribution. We all believe in redistribution. We believe that, in a civilised country such as ours, we should tax the rich more and give money to those who need support. We have arguments about how much the amounts should be and about the conditions, but we all believe in transfers, and we all believe that the balance must be right.

When I asked the hon. Member for Banff and Buchan to say how much more an enlightened Scottish Government would like to give, by means of welfare payments, to tackle immediate problems of low income or poverty, she was not able to tell me. That was a pity, because I took it that her intention, and the purpose of the amendments, was to give the Scottish Executive power to increase benefit levels in comparison with the levels, or the range, of benefits currently on offer in the Union. I did not think that SNP Members were seeking these powers in order to be meaner than the Union Government are proposing to be, and I see them consenting to that. I feel that this debate would be richer and fuller if they shared with us the amount of extra money that they would like to spend.

[Patrick Grady (Glasgow North) (SNP)]

Surely the point is that it is for the Scottish Government, whatever their colour, to decide how they want to use the powers. Perhaps one day a Government of the right hon. Gentleman’s colour will be using them. However, no Government would be able to use any powers that had been vetoed by the Secretary of State.

[John Redwood]

That brings us back to an important and interesting question. At what point does the transfer of power become destabilising for the currency union and the common transfers that make up our common country? That, surely, is one of the issues that were examined in the referendum, when a majority of Scottish people felt that they wanted to remain in the United Kingdom and in the currency union. Having read and listened to what was said by those who were actively involved in the debate, I suspect that the currency union was rather central to the securing of that vote, and that it was when the parties of the Union said that Scotland should leave the currency as well as the UK, if that was the wish of the Scottish people, that the majority voted to stay in the Union.

[Mr MacNeil]

I should be fascinated to know the size of the changes in welfare spending that the right hon. Gentleman would find destabilising. The hon. Member for Gainsborough (Sir Edward Leigh) said yesterday:

“the Scottish Parliament spends £37 billion and raises £30 billion”.—[Official Report, 29 June 2015; Vol. 597, c. 1234.]

He described that as “quite responsible”. He also said that the UK raised staggeringly more—£648 billion, an amount that is about 20 times greater—but, of course, the UK also spent a great deal more, with a black hole of £732 billion. Given those figures, and given the difference between the sizes of the states of Scotland and the UK, in terms of both spending and raising powers, just what type of changes does the right hon. Gentleman think would have to hit welfare before it began to destabilise the Union? I suggest that it would be necessary to make a millionaire of each and every unemployed person before that point was reached.

[John Redwood]

I do not think that it would be necessary to go that far. At present, there is clearly a disproportion between the size of Scotland and that of the rest of the United Kingdom, and, as the hon. Gentleman’s budget figures show, a lot more money is collected elsewhere than in Scotland. That, however, is not the point at issue. [Interruption.] I am not asserting anything; I am just asking a question. We are engaging in a crucial debate on how much welfare power should go to Scotland. I am one of those who agree that some welfare power should go to Scotland in accordance with Smith, but we have to ask how far it goes, and what the consequences might be.

If countries have a common work area and a free movement area, and if they share a language, a labour market and a currency, that arrangement can bring benefits when it has settled down, because it is backed by political union. When we start to unpick the political union, we must ask ourselves at what point that unpicking of that union, or the welfare transfer union, will become damaging. A point will be reached when it does become damaging, because one part of the country will be too attractive, or too unattractive, compared with another part. A single currency area as big as the United Kingdom can work only if there are fair systems for raising money from the rich, wherever they may be in that big area, and giving enough to the poor, wherever they may be.

[Drew Hendry]

Is the right hon. Gentleman aware that parts of the United Kingdom are already more unattractive because of decisions on welfare spending? The bedroom tax is one example. In the highlands, there are some 70 communities with no one or two-bedroom properties on the social register for people to move to. How can it possibly be fair for that principle to apply across the UK, when the people who live there are unable to cope with that heinous tax?

[John Redwood]

I fully understand the arguments against the spare room subsidy, or the bedroom tax. I understand the politics of it only too well. I do not want to go into my private views now, but it is a matter to be settled within the Union Parliament, and by the Government of the Union, under current powers. It does not make good law to say that if there is a particular benefit that people in Scotland do not like very much, that is the one that we should be able to fix. We need to come up with a settlement for a longer-term period which takes account of the principles.

It is for that reason that I am presuming to spend just a few minutes reminding colleagues that very big principles are involved in this instance. We need to secure the right balance, one that enables Scotland to feel that it can make enough of its own decisions to meet the mood of the majority, but falls short of giving it so much power that the Union’s mechanisms for switching money around do not work. I find it very difficult to make decisions on this Bill without knowing what the financial settlement will be, because it will not work unless there is enough money to make it work, or if England does not think that it is fair to them. Scotland may well find that the financial settlement is not fair to them—I am sure our SNP colleagues will not be shy if that is the case—but England has delivered big majorities for me and many of my colleagues, so we have a mandate and a voice and we need to make sure that the financial settlement that emerges is fair to us. The range of powers that Scotland has will have a bearing on that settlement.

[Mr MacNeil]

I thank the right hon. Gentleman for giving way; he is being very kind. On welfare, we already share a common language with a country in the common travel area, namely the Republic of Ireland, where people can get up to €188 per week, with extra payable for those who have children. I am not saying that people are going from Liverpool or the north-east of England to a far more advantageous situation in the Republic of Ireland in the common travel area—which they could do—so I think that the right hon. Gentleman’s fears are misplaced. I would almost suggest that his fears are politically motivated and based on wanting to keep powers in Westminster and a deep psychological need for Westminster to over-control aspects of people’s lives around the current UK.

[John Redwood]

I am afraid that that is a bad example, because it proves my case. Ireland broke from the pound, set up its own currency and then, unfortunately for Ireland, chose the euro, but that was Ireland’s decision and it has had a bumpy ride ever since.

The big difference we need to remind ourselves about for the purposes of this welfare debate is that there is a common currency, so there have to be some limits to the amount of freedom appropriate for welfare benefits. If the SNP wishes to be truly independent and wants an independent currency, I fully understand its position and none of these arguments makes any sense.

I think I have made my point and I hope that Ministers will bear it in mind that it is very difficult to come to a conclusion before we know what the financial settlement will be. It is also very important to remember that there is a common work, language and currency area, which means that there has to be some family resemblance in the benefits that are paid.

[Mark Durkan]

I want to follow on from some of the issues touched on by the right hon. Member for Wokingham (John Redwood), particularly his last point about a financial settlement. When debating the earlier group of amendments, he intervened on the Secretary of State to ask whether he would address how the Barnett formula might be adjusted.

In essence, I think that the right hon. Gentleman is corroborating some of the basic questions asked by the hon. Member for Banff and Buchan (Dr Whiteford) about clauses 24 and 25, which presume an awful lot and raise a lot of questions about what else should be in them and what is happening outside them. The clauses presume a standard of behaviour and courses of action and events in relation to how decisions will be made. For instance, the word “concurrently” is used, but if we look at the sequence of decisions and processes involved, we will see that they do not look very concurrent. There could be distended periods and a lot of dispute and difference. The most important gap in clauses 24 and 25 —both Labour and the SNP have tabled amendments to address this—is that they do not say what will happen if Scottish Ministers and the Secretary of State do not concur on some of the issues.

If we as legislators are going to pass clauses that presume certain standards, the course of events and political behaviour, the question we need to ask is, “And what if not?” The Bill does not answer that question. If there is no agreement between Scottish Ministers and the Secretary of the State on the decisions, timelines, details and other implications, what will happen? We will be in difficulty and we will be told, “Well, the legislation faithfully followed Smith and we couldn’t do any more than that,” but it is clear that Smith is not of itself sufficient to address those questions, so we as legislators must address them. The Smith commission exercise was different from that for which we have responsibility as legislators. It is not good enough for us to say, “We’re not going to answer those obvious questions, because Smith didn’t address them.”

15:15

I speak from the experience of having been through the Northern Ireland process, during which we negotiated agreement after agreement and had lots of developments. Often, the Government—by which I mean both parties—would say, “We’re faithfully implementing the agreement,” but it was clear, and many of us said, that it was not adequate for its purpose and that more needed to be done. We were, of course, proved right, so I feel a lot of empathy for Scottish colleagues who are saying that it is not enough to say that the Bill faithfully implements Smith when it does not answer practical, basic fundamental questions.

It is not enough to say, “We’ll see what happens,” or, “We’ll see who goes to the courts first,” because that does not give a proper answer in constitutional terms. Neither would it be edifying to the public, in terms of giving politics any sort of good reputation, if politicians ended up blaming each other for their own powerlessness or for the fact that they were delivering confusion.

Again, I speak from experience in Northern Ireland, where, as is the case with this Bill, particularly clauses 24 and 25, there is an image of dual control. There is a degree of devolution, but there is also a degree of control from Westminster and Whitehall. The idea is that it will all be done swimmingly and smoothly, but the fact is that when that does not happen, decisions are not taken and politicians of different parties say that they want to take certain decisions but cannot do so. That blame game does no credit to any of the political institutions or parties. I do not want to see the same sort of presumption being used in this Bill, because it could end up creating a crisis.

Not only are words such as “concurrently” used when the processes are not very concurrent; there is also the idea that the Secretary of State can give agreement and that such agreement will not be “unreasonably withheld.” Who decides what is unreasonable? Whose judgment does that rely on? What is the real motive behind that? There are different views in Northern Ireland as to who is being reasonable and who is being unreasonable.

To return to the point raised by the right hon. Member for Wokingham about the financial settlement and the idea that there would have to be a test of whether it was fair to England, in Northern Ireland, what was supposed to be a devolved legislative decision on welfare has essentially been subject to a budget bullying exercise, not by the Secretary of State for Northern Ireland, but by the Treasury. This Bill is silent on the issue of the Treasury, so I think that an amendment will be needed on Report to address the Treasury’s role.

I know that on paper the devolution of welfare to Northern Ireland is not the same as that proposed in this Bill, but the lesson is salient. The karaoke legislative power that the Northern Ireland Assembly has to pass legislation is such that it has to be delivered according to the words and music passed by this House. If not, the Treasury has told us, “We will claw back your money,” by which it means not the welfare spending, but the devolved budget. The Treasury is interfering in what was meant to be the financial settlement under the Barnett formula.

The right hon. Member for Wokingham asked earlier what would happen in relation to the Barnett formula. He also asked a very good question when he said he agreed with the findings of the Smith commission on devolving aspects of welfare. He pointed out that we had to ask the question: “How far does it go?” I believe that the amendments tabled by Labour and the Scottish National party are an attempt to clarify how far that devolution would go. They would make it clear from the start what paths were open to Scottish Ministers and to the Scottish Parliament. Incidentally, I would have preferred to see more emphasis on the Scottish Parliament in the Bill; all the references seem to be to Scottish Ministers. But that is another issue.

The right hon. Gentleman’s question—how far does it go?—will not be answered by clauses 24 and 25 or by the Government’s rejection of the amendments. Instead, the question will have to be answered on each and every occasion that the Secretary of State is asked how far Scottish Ministers and the Scottish Parliament can go in relation to the available discretion on welfare spending. We should not have to have that constant political checkpoint in place for the Scottish Parliament and Scottish Ministers, whereby it will fall to Ministers here to say how far the devolution of welfare should go on each separate decision. That will be recipe for permanent tension and contention. I thought that the purpose of the Smith commission and of this Bill was to ensure that we would be relieved of such contention, both here and in the Scottish Parliament.

The Scottish Parliament should be able to use its discretion to address the merits of the particular benefit changes and innovations that it wants to introduce. Those benefits might relate to cancer sufferers, for example. There could be a specific cancer support allowance that could effectively cut through a lot of the confusion that exists in relation to other benefits such as employment and support allowance. We should let the people in the Scottish Parliament address the question of how benefits can be made to work and to deal with the real problems that people have in Scotland. They could set a good example to the rest of us. They should be empowered and emancipated to concentrate on those issues by these devolutionary measures, instead of constantly having to deal with political crises and political fallout and to wonder what kind of political gamesmanship Ministers in London or in Scotland will be accused of playing in relation to a matter as fundamental as welfare.

Nothing scandalises the public more than the perception that an issue as fundamental as welfare—particularly for people with disabilities and long-term conditions—has become a political football. We have seen that sense of scandal in Northern Ireland, and I do not want to see it repeated anywhere else. That is why the Secretary of State needs to listen to the points raised in the amendments. This is not about political point scoring; it is about ensuring, in the spirit in which this devolution is meant to be extended, that the people in Scotland can address these issues and ideas without feeling that they are getting into serious political quicksand. They do not want to feel that their actions could trigger a demand for another referendum, for example. We must let them put to the Scottish Parliament their own ideas for the betterment of their people without feeling that they could get into an awkward situation.

That would result in the Scottish Parliament working better and in freeing this Parliament of arguments and contention that it does not need to bother itself with. It would also set a very good example to the rest of us who need to sort out our own alignment on the devolution of welfare. I do not want to return to our own situation in Northern Ireland, however. I am not saying that the proposals in this Bill should automatically be translated into a Bill for Northern Ireland. I support most of the amendments that have been tabled, but I cannot pretend that all the new clauses would work in the context of, or be applicable to, Northern Ireland. There would obviously be differences, and I do not wish to presume anything in that regard. Let us get this devolution right, and let us give the Scottish Parliament the chance to get welfare right on its own terms. That would involve no risk or threat to this Parliament, and it would certainly set an example to the rest of us.

[Sir Edward Leigh (Gainsborough) (Con)]

I should like to speak to new clause 55. The explanatory statement tells us:

“This new Clause would remove from the list of reserved matters in the 1998 Act (and so transfer to the Scottish Parliament) all social security schemes, including National Insurance and housing benefit, as well as child support, occupational and personal pensions and war pensions.”

These are complex matters, as I said yesterday, and I have tabled this probing amendment to elicit from those on the Government Front Bench their thoughts on this vital matter.

I shall start by making a controversial statement. I believe that, by dribbling out powers—that is not my own phrase, but one given to me by one of my Scottish friends; I still have one or two left—we are giving the Scottish National party a crowbar with which to blast the Union apart. This Parliament is giving the SNP just enough purchase on that crowbar by giving it just enough powers to feed a sense of grievance. If we were to give the Scottish Parliament full responsibility for social security, it would be difficult for it to feed on that grievance. It would have to be a responsible Parliament and take responsible decisions, and I am confident that it would do so.

My amendment would place all social security within Scotland, including pensions, in the hands of the Scottish Parliament. Scotland has a more ageing population than the UK as a whole, and immigration there is much lower—I never understand why, but apparently it is—so Scotland will need a needs-based formula to protect the pensions of Scottish people. That is precisely the argument I have been using in these debates. A needs-based formula that buttressed a Scottish Parliament with full fiscal autonomy would sustain the Union. I would therefore replace the Barnett formula with such a needs-based formula to protect the pensions of Scotland’s ageing population. That is where I am coming from.

We are not very far into this Parliament, yet already I feel that I might be wearying my colleagues by making the same point over and again. However, it is an important point to make. There are not a huge number of my colleagues present in the Chamber today, but I recall from reading my history books that during the debates on what was to become the Government of India Act 1935, the House of Commons debated the Bill day after day. In those debates, people such as Brendan Bracken, Harold Macmillan and Winston Churchill made the point over and again that dribbling out powers to India would destroy the connection between India and the United Kingdom. Very few people listened to them. I do not claim to be in the same league as them, but I believe that this debate is extremely important. It is important to understand that we could destroy the Union by not getting this right, and we must debate that contention.

[Mr MacNeil]

It is interesting to hear the hon. Gentleman talk about the angst over the connection with India that was palpable in the Chamber during those debates. Does he agree that the angst—admittedly, there is not much on the Labour and Tory Benches today, given how few of their Members are here—that will be created by the Government’s voting against the wishes of the 95% of Scottish MPs who want to achieve x, y and z in the Scotland Bill will go away some day, when the powers go out from this place? At that time, English Members will need to worry only about matters that relate to England, rather than about those that relate to Scotland.

[Sir Edward Leigh]

I think we have to act responsibly and to remember that, unfortunately, only three Unionist MPs are left in Scotland. The SNP has won a notable victory in Scotland and needs to be listened to—we do not always have to agree, but we have to listen. Ultimately, I am as passionate a Unionist as anybody on these Benches, but I believe that there is a better route to maintaining the Union. If we dribble out these powers, we are making a grave mistake.

Let me deal with the point that if we have a single currency system we must have a common welfare system. That is a perfectly respectable point and I completely understand it. It was made by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) in the debates two weeks ago and has been made extremely well by my right hon. Friend the Member for Wokingham (John Redwood). I understand where they are coming from, and we are all very much aware of the Greek situation, but I would argue that the comparison is misplaced: the difference between Germany and Greece is infinitely greater than that between England and Scotland. In the United States, full fiscal autonomy for the states works because there is a common English language and full mobility of labour. When there are disparities in wealth, labour moves around the United States in a very vigorous way that is difficult to achieve in the European Union.

The comparison of Scotland and England with the Netherlands and Germany is much more apposite. We have a common language, a common border and very similar systems, albeit separate legal systems—although they are based on many of the same traditions. Members can understand the point that I am making. Of course, if the Scottish Parliament was to act completely irresponsibly and take control of its social security and just spend, spend, spend, the thing would break apart; I agree that the currency union would become unsustainable. But surely as parliamentarians, with confidence in our own Parliament and elected representatives, we should have the same confidence in our fellow countrymen and ladies who will be running the Scottish Parliament. I personally believe that if we gave them full responsibility, they would have to act responsibly if they wished to be re-elected.

15:30

My hon. Friend the Member for North East Somerset and my right hon. Friend the Member for Wokingham have made a perfectly respectable point and the Minister will want to deal with it. No doubt he will agree with them and make the point himself, but I think that if there are shared or similar traditions and there is a similarly incorrupt system, it is possible within a currency union to have different welfare systems.

Let us consider what has been given to Scotland. This is a bit of detail, but it is important. With its remit, the Scottish Parliament transformed social fund community care grants and crisis loans into the Scottish welfare fund, while council tax benefit was replaced with council tax reduction. There have already been some changes. In addition, Holyrood is in charge of discretionary housing payments within Scotland. My point is that all those benefits together amounted to just £422 million in 2013-14. That is less than 2.4% of all welfare spending in Scotland and, if my calculations are correct—I might be wrong—less than 0.21% of all welfare spending in Great Britain, such is the disparity between spending in Scotland and in the United Kingdom as a whole. It is inconceivable that decisions made in the Scottish Parliament would upset the balance of payments in the United Kingdom as a whole.

Of course, I welcome the Government’s move to expand Scotland’s control over its own benefits, as we all do. The debate now is about how much we should do it. I want to ask Ministers why we are not devolving the job lot of it. How can anyone effectively half-run welfare? It comes as a package. Is that not the point of universal credit? In fact, universal credit cannot stand alone, so we cannot start dribbling out powers and keep universal credit. I think we are making a mistake, but the point is arguable so the Minister might be able to knock down my arguments. I make them with a sense of humility.

One of the arguments for uniformity of benefits is that it supports a common social citizenship across the Union. That point was made by the hon. Member for Edinburgh South (Ian Murray), and it is perfectly fair. He says that we believe in a common social citizenship, and I accept that, but I believe that the argument has been broken in such important regards as tuition fees and prescription charges. I am not entirely sure why it is important to have a common social citizenship for welfare, for which the hon. Gentleman argued very well, but not for tuition fees.

There is also the argument that the social security system is so immeasurably complex and interconnected, with decisions in one area having vast implications and repercussions elsewhere, that devolving it would be virtually impossible or unachievable. If anything, I would have thought that would bolster the case for universal credit, but is it not possible that Scotland, in charge of social security for more than 5 million people, might innovate in its system—simplify it or even provide models for the rest of the United Kingdom? Do we not believe in competing social security systems throughout Europe? Does not Holland believe that it can have a competing social security system with Germany while maintaining its independence?

The proposals are a step in the right direction, but I do not believe that they go far enough. In 2013-14, expenditure in Scotland on the benefits that the Smith commission proposed to devolve totalled less than £2.6 billion out of the £16 billion to £17 billion spent on welfare in Scotland. It is true that that is more than the current £422 million, so we are making progress, but the Scottish Government do not believe it is enough and I think they have a point. We should at least listen and argue about this and knock down their arguments if they are not sustainable. Given the very strong mandate the electorate have given to the SNP, we must listen to some of its arguments and deal with them in a constructive way.

Of course, as a Conservative I believe in evolution not revolution, but I also believe in learning from history and, as I have said before, we failed before because we were too afraid of taking the plunge and trusting people. Today we need to think of grand gestures, not just this benefit and that welfare payment. The way to secure Scotland’s place in the Union is to grant her full fiscal autonomy, full fiscal responsibility and full home rule in a modern sense. I hope Ministers—all good Unionists, just as I am—will explain their thinking in not going down the route I propose. It is the way to keep our family of nations happy together; that is what my amendment seeks to move closer to achieving.

I fear we are trying to counter nationalism with fear and fudge, and that never works; we will counter nationalism only with hope and aspiration. In the United Kingdom as a whole, 70% of people support benefit reform. Universal credit, which I support, will make a difference, but given the overwhelming importance of welfare in a modern parliamentary system, no self-respecting Parliament worth the name cannot but take full accountability for welfare payments. I hope and expect that the Scottish Parliament will keep universal credit if given the chance, but that should be a matter for it to decide. It is in that spirit that I move my new clause.

[Ian Blackford (Ross, Skye and Lochaber) (SNP)]

I thank the hon. Member for Gainsborough (Sir Edward Leigh) for introducing his new clause. I want to pay credit to him: in both his speech this afternoon and his other contributions throughout the debate on the Scotland Bill we have heard many thoughtful and intelligent remarks on the future of Scotland and, from his perspective, the preservation of the Union. On our Benches, we come from a different position, but none the less I respect the position he has taken and the clear thought that has gone into the contributions he has made.

In the election campaign, those of us on the SNP Benches asked the people of Scotland to vote for us in order that we would come to this House to speak up for what we were promised by Gordon Brown: that we would get as close to federalism as possible. Much was said about delivering home rule in the spirit of Keir Hardie, too. It is on that basis that we can argue that, with our share of the popular vote and having won 56 of the 59 seats, we have a clearly expressed mandate from the Scottish people to get what was proclaimed: home rule for Scotland. It is in that context that I commend the amendment before us. It seems to understand the expectations of the Scottish people for the return of power to Holyrood, which has become much stronger in the recent past.

As I mentioned, the hon. Member for Gainsborough comes from a different perspective, in as far as he wants to protect the Union. We wish to see powers in the hands of the Scottish Parliament that allow it to deliver the sustainable economic growth which enables us to deliver on the social priorities that the people of Scotland expect. I say to the Secretary of State for Scotland and the Government that if they will not listen to the Scottish people and their elected representatives here, they should listen to the wise counsel that in this case comes from their own Benches.

We respect the fact that the Government won the election in the UK—although that does not mean we like it. However, the Government should also respect that we won the election in Scotland. The Secretary of State is of course a lone Government voice, with only 14% of Scots voting for his party—the lowest level of support for a Tory Government in history. It is clear that the Scottish people want the Edinburgh Parliament to have greater control over welfare. I am reminded of the Charles Stewart Parnell quotation often mentioned by my right hon. Friend the Member for Gordon (Alex Salmond):

“no man has the right to fix the boundary to the march of a nation. No man has the right to say to his country, ‘Thus far shall thou go and no further.’”

Perhaps, whether on this amendment or on many others, the Government ought to reflect on that quotation.

The issues of fiscal autonomy and freedom to deliver on our aspirations for social security are intertwined. For us, fiscal autonomy is about hope and aspirations, something we heard about just recently. We need the full set of powers to deliver a new Scottish enlightenment that recognises that we need to create the circumstances that will drive up our investment, and deliver growth and productivity. That will result in a rise in real wages, generating the tax receipts that will allow us to deliver investment in social policy, particularly in social security.

That is why we are critical of the taxation powers on offer, which leave the Scottish Parliament in direct control of less than 30% of taxation and, crucially, fall way short on the range of tax powers that could see us incentivise the Scottish economy and deliver growth. This is critical, as the issue of sustainable growth is central to our desire to deliver the investment we need in welfare. Our desire is to invest and deliver a stronger economy, and, through doing so, create the resources that allow us to invest in social protection and, as part of that, to look after today’s and tomorrow’s pensioners.

With those remarks, I welcome the new clause tabled by the hon. Member for Gainsborough and the discussion we are now having. In just over a week, the Chancellor will rise and deliver his emergency Budget. I expect there is in some quarters a sense of anticipation as to what the Budget will deliver, but many SNP Members have a sense of dread, knowing what is coming. The last Government’s failure to grow the economy and deliver tax receipts sees the poor and the disadvantaged of the UK having to pay the price of failure, with an expectation of an additional £12 billion of welfare cuts to come. The ongoing austerity regime will drive an increasing number of people into poverty, and that fact was central to our campaign—showing that there was and indeed is an alternative to austerity, and why we need powers in Scotland to protect our citizens from the most damaging aspects of the UK Government’s welfare programme.

Through the limited powers we have today, to which reference has been made, the Scottish Government are providing £300 million of additional funds between 2013-14 and 2015-16 to mitigate the impact on families in Scotland of Westminster welfare cuts. Not only do we know that the pressure on many working families is going to increase, but we know that the UK Government wish to reassess the definition of “relative poverty” , a sure sign that they recognise that their policies are going to see a dramatic increase in the number of families pushed into poverty as a direct result of their measures.

We know from the analysis done by the Institute for Fiscal Studies, much commented on by the Child Poverty Action Group, that up to 100,000 more children in Scotland risk being pushed into poverty by 2020. For SNP Members, and for many in Scotland and, I expect, throughout the UK, it is unacceptable that anyone should be living in poverty in Scotland and in the UK. That, among other reasons, is why we need powers over welfare in Scotland. A principle important to many on our side, which we firmly believe in, is that society is as strong as its weakest link. That principle is in the mainstream of public opinion in Scotland, but the welfare cuts to come would lead us to the conclusion that it is not shared by all.

Let me turn to the issue of pensions, which was raised by the hon. Member for Gainsborough. One of our particular concerns is the increase in the age when pensioners will access their state pension; it is going up to 66 in 2020, and to 67 between 2034 and 2036, before increasing to 68 thereafter. That may be perfectly acceptable in the parts of the UK where life expectancy has been rising, but the disparity that exists between life expectancy north and south of the border suggests that we need a Scottish solution to our own circumstances. For example, life expectancy for a male child born today in Glasgow is 71.6 years, some seven years below the UK average of 78.2 years. The World Health Organisation has claimed that in the district of Calton in Glasgow, life expectancy for males is 54 years, substantially below the current UK pension age, never mind the increased pension age.

For a woman, the gap in life expectancy is also marked—78 years against a UK average of 82.3. It is little wonder that the state pension represents 11.9% of taxation income in Scotland but 12.1% in the UK. Quite simply, we are not living long enough to enjoy the fruits of the old age pension. If powers over pensions were devolved, our Parliament in Edinburgh could determine how we reflect on our own circumstances to ensure that our citizens can look forward to a comfortable and secure retirement.

15:45

The amendment tabled by the hon. Member for Gainsborough would have the effect of devolving powers over all pensions, not just the state pension. We welcome that. It would allow us in Scotland to reflect on how we respond to the challenges for both defined contribution and defined benefit schemes. Defined benefit schemes are something of a rare breed these days, and we should reflect on the damage that we have done to the sustainability of such schemes as a consequence of the tax raid on pension schemes initiated when he was Chancellor of the Exchequer by the Member of Parliament for Kirkcaldy and Cowdenbeath.

[Roger Mullin]

Not this one.

[Ian Blackford]

No, not the current Member for Kirkcaldy and Cowdenbeath; my hon. Friend would not do anything so rash.

There is a crisis in the funding of such schemes and the tax treatment of dividends requires a fresh examination. Pension freedoms were initiated in the last Parliament. While we broadly welcome the enhancement of consumer choice, SNP Members have gone on record as questioning the appropriateness of the advice that consumers receive and the risks of mis-selling. Those concerns have not been adequately addressed, and if pensions are devolved to Scotland, the Parliament in Edinburgh may want to look at it.

We welcome the amendment, especially in the light of the threatened attack on the most vulnerable in our society if the Government go ahead with their £12 billion-worth of cuts. We recognise that we can deliver only if we have fiscal responsibility as part of the equation. We recognise our responsibilities to look after the vulnerable in our society. We firmly believe that we need power over our economy to deliver sustainable economic growth and grow the tax base to generate the resources to create not only a wealthier but a fairer Scotland. Passing the amendment today would at least give us the power to intervene to ameliorate some of the pain that will be inflicted on so many of our people by the policies of the UK Government.

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

I am delighted to speak in favour of amendment 118 and new clause 45, which call for the removal of the requirement for the Scottish Government to obtain consent from the UK Secretary of State in relation to universal credit and the cost of claimants who rent accommodation.

In the light of our mandate from the Scottish people, and the lack of democratic mandate that the Conservatives —indeed, any of the other parties—have in Scotland, we urge all in the Committee to support the amendment. We set it out unequivocally in our manifesto that, as part of our welfare priorities, there should be an immediate scrapping of the bedroom tax and a halt to the roll-out of universal credit and PIP payments. We said that we would support an increase in the work allowance. Those policies were supported by both the people of Scotland and civic Scotland and we have a clear democratic mandate for that demand, given the result of the general election.

We are particularly concerned about the work allowance element of universal credit—the amount of income that a household can earn before their universal credit entitlement is reduced. We demand that the work allowance be devolved to the Scottish Government as part of new clause 45, and democratic integrity requires that that demand be met. We support increases in the personal tax allowance, but we also back an increase in the work allowance. In this, we are in keeping with a Resolution Foundation policy proposal paper, which pointed out:

“if we really want to help working families on low and middle incomes, boosting the Work Allowance would be more effective and better value for money than any tax cuts”.

For a lone parent with housing costs, for example, the work allowance is currently set at just over £3,000 per year. After that point benefits start to be withdrawn. For example, those on universal credit lose £65 of benefit for every £100 of post-allowance salary. Of course we need to put in place some sort of tapering system to make work pay, but the complexity of the system allows—indeed, encourages—the Government to focus on simpler measures, even if those simpler measures are far less effective. Take the personal allowance. People begin paying tax at 20% after earning £10,000 a year, but we pay less attention to the fact that a sole working parent faces a 65% deduction rate when they earn over £3,000 a year.

For people who receive universal credit and pay income tax, the Chancellor’s £600 a year increase to their personal allowance is welcome. That would boost their income by £42, but the same increase in work allowance would increase their income by £390.

Even the Institute for Fiscal Studies has weighed into this debate, arguing:

“In-work benefits provide a more precise and cost-effective way of supporting low-earning working families than changes to direct taxes.”

The freezing of work allowance is profoundly misguided and effectively cuts the benefits of workers on low incomes. What happened to making work pay? What we need is a work allowance to help to ensure that those in work have a better chance of lifting themselves and their families out of poverty. We need the power in Scotland to change work allowances in Scotland, so that we can help families to help themselves out of poverty as they go out every day to earn a living through increasingly difficult times.

Universal credit does not help some of our poorest households, but much could be done by increasing work allowance and making work pay. This could be one—only one—of the tools that could help to combat the scandal of those in work having to rely on food banks to put food on their tables and feed themselves and their families. Scotland needs powers over the work allowance element of universal credit—no ifs, no buts.

I draw the Committee’s attention to the letter in The Herald today, which has already been mentioned by my hon. Friend the Member for Banff and Buchan (Dr Whiteford). It is a letter from the third sector in Scotland protesting against the socially divisive and damaging impact of the UK Government’s cuts of a further £12 billion in social security spending—cuts which, despite attempts to rewrite history, the Labour party signed up to prior to the general election. [Interruption.] These cuts—[Interruption.] Let me put the cuts in context. In the pre-election debate the hon. Member for Leeds West (Rachel Reeves) said that the Labour party was not the party of people on benefits. I notice that there is no retort to that. These cuts first and foremost—

[Kate Green]

Will the hon. Lady give way?

[Patricia Gibson]

No, thank you. [Interruption.] I have already responded informally to the hon. Member for Edinburgh South (Ian Murray), who is on the Front Bench.

These cuts first and foremost will bear down on the most vulnerable and poorest in society. The whole of the third sector in Scotland supports the devolution of working-age benefits to Scotland because there is a recognition that the Scottish Government can and will do things better. They will set out a welfare system competently and with compassion. Make no mistake. Such devolution of welfare powers—

[Sir Edward Leigh]

Will the hon. Lady give way?

[Patricia Gibson]

I give way to the hon. Gentleman.

[Sir Edward Leigh]

I am listening with great care to the hon. Lady, as I hope are my right hon. Friend the Secretary of State and the shadow Secretary of State, because I maintain that she is making the same point that I was making, although from a different direction. If we dribble out powers, the SNP will constantly blame us for everything that goes wrong—“Cuts? They’re responsible for the cuts.” Give them the responsibility and they will have to take responsibility.

[Patricia Gibson]

We will be proud to take responsibility for investing in the growth of Scotland’s economy, in our infrastructure and in the people of Scotland.

Make no mistake: the devolution of the welfare powers in the Bill is supported by Citizens Advice Scotland, Barnardo’s Scotland, the Child Poverty Action Group, the Church of Scotland, Oxfam Scotland, the Poverty Alliance, the Scottish Trades Union Congress—I could go on, but I think I have made my point.

We on the SNP Benches are seeking to protect those we represent in Scotland from the worst excesses of this Government. We speak with the clear democratic mandate of the people of Scotland, and behind that we have the increasingly raised voices of Scotland’s third sector and civic society. We must not balance the books on the backs of the poor. It is time that the Government listened to a valued and equal partner in this Union—Scotland—in the spirit of the respect agenda.

For the record, and for the avoidance of any doubt, the SNP set out unequivocally in our manifesto, as part of our welfare priorities, that there should be an immediate scrapping of the bedroom tax and a halt to the roll-out of universal credit and PIP payments. As far as working-age benefits go, the Bill does not meet what was set out in the Smith agreement.

The Secretary of State has argued that there is no effective UK Government veto over the powers in the Bill relating to welfare arrangements, limited as they are, yet there is a clear requirement for the Scottish Government to

“have consulted the Secretary of State about the practicability of implementing the regulations”.

The Secretary of State would then have to give

“his or her agreement as to when any change made by the regulations is to start to have effect, such agreement not to be unreasonably withheld.”

Is it likely that the current Secretary of State and the Scottish people would ever agree on a definition of what is unreasonable? For example, the people of Scotland believe that it is unreasonable that a party that has a far weaker mandate in Scotland than at any time during any of the years when it last led a majority Government now pontificates over what powers Scotland should have while reneging on the all-party agreements arrived at in Smith. The Secretary of State clearly thinks that this situation is entirely reasonable and presides over the Dispatch Box like a colossal Governor-General, with no shame, taking on the elected and legitimate representatives of the huge majority of the Scottish people.

For the sake of social justice in Scotland, for the sake of our most vulnerable, who are being crushed beneath the weight of the illogical and misguided attempts to punish those who require assistance from the state, for the sake of what was promised in Smith, for the sake of Scotland’s position as a “valued and equal partner” in this Union, for the sake of the wisdom of Scotland’s civic society, and for the sake of the SNP’s democratic mandate, I urge the Committee to support amendment 118 and new clause 45.

[Tommy Sheppard (Edinburgh East) (SNP)]

We are considering a lot of amendments, and some of them cover quite technically detailed matters, but I think that the context of the debate is about big ideas; it is about big differences between this side of the House and the Government side of the House. I think that there can be no bigger difference than how we view our society with regard to welfare provision. On the Opposition Benches we see welfare as a means of social insurance whereby we work together to protect each other through periods of illness and disability and in old age, and also to protect people who are casualties of economic circumstances as they move from one period of employment to another. It is something we should provide with kindness and generosity and in the spirit of co-operation. I fear that the attitude of Government Members is founded on prejudice and parsimony. It is about a welfare state that grudgingly gives to people as a means of last resort. It is because of that difference in opinion that this debate matters so much.

15:59

We want to transfer these powers to the Scottish Government to begin the task of creating a welfare system in Scotland that reflects the priorities and ambition of the people who live in Scotland. I have no difficulty whatever in accepting that we remain part of the United Kingdom and that a minimum standard should apply for universal credit. I must say to the Government that they have not set the minimum standard bar too high, so it will not be too difficult to cross it.

In order to get beyond that, however, we will need to work together, and new clauses 45 and 46 provide a mechanism by which the Scottish and the UK Governments can work together to look at how universal credit can be implemented in Scotland and at how additional measures that the Scottish Government may choose to bring in can be implemented in that context. It offers an opportunity within the United Kingdom—within the settlement agreed in the referendum and post-Smith—for the Governments to work together and do something constructive that will meet the aspirations of the Scottish people.

That is important because we want to move away from what is happening to welfare in this country.

[John Redwood]

Will the hon. Gentleman give way?

[Tommy Sheppard]

I was just going to quote the right hon. Gentleman, but I will take his intervention.

[John Redwood]

I entirely agree with the hon. Gentleman’s description of what we want from our welfare system, but by how much does he want pensions and universal credit to go up to meet his aspirations compared with what is on offer?

[Tommy Sheppard]

The right hon. Gentleman has on several occasions in this and previous debates talked about cost and about how much will be paid for certain welfare benefits. I have to say to him that he must not assume that the cuts his Government are making in the welfare budget are cost free. There will be consequences as a result of what they are doing.

If the Government reduce the amount of money that poor people have and impoverish them even further, there will be consequences for the rest of society. It will increase the burden on our national health service as people become physically and mentally ill. It will drive people to drug dependency and petty crime, and put extra demands on our police service. Most of all, it will cost our economy in the lost opportunity of those wasted lives. Do not think for one minute that there are no consequences to what the Government are doing with the welfare budget.

[John Redwood]

Will the hon. Gentleman give way?

[Tommy Sheppard]

I am anxious not to get into a debate with the right hon. Gentleman, but I will take one more intervention.

[John Redwood]

This is a debate, and I am delighted that the hon. Gentleman is prepared to get into such a debate. I have no wish to take money away from people who need it; fortunately, we do not have to debate that today. What is the answer: how much more is needed to meet his aspirations for greater generosity than the Government have volunteered?

[Tommy Sheppard]

I am happy to have a debate; I just do not want to have it with the right hon. Gentleman by himself. It is a matter for assessment: we will have to sit down and work out exactly how much more will be required. The question here is: who should make the assessment—should it be the representatives of the people in the Scottish Government, or should it be someone else?

I want to talk about the bedroom tax, which has been mentioned several times. I will give one example of a human story, rather than the statistics that people have thrown around the Chamber. I have a 62-year-old constituent, who has lived in the area for 30 years in the same two-bedroom house. She has brought up her family, who have now left home. She now suffers from chronic angina and arthritis, and she can barely leave the house, never mind go into employment. She is probably not going to work again. The question is: what type of social protection do we offer someone in that position?

When I came across my constituent last year, she was running up against the spare bedroom subsidy regulations. She was told that she would either lose £14 a week off her benefit, or she would have to move house. Not having £14 to lose, she inquired about where she should move to. The only options given to her were five miles away, in an estate with a number of social problems that hers did not have, with no support from family or friends and no ability to continue the life she had. She was almost terrorised when I came across her: she was at the point of distraction and was making herself ill. I am glad to say that, because of the actions of the Scottish Government, we have now been able to help that woman and others in her situation, but I fear for people throughout the rest of the United Kingdom who are in that terrible situation.

Another example of parsimony is the sanctions regime, which has been mentioned several times. Let us not kid ourselves that officials in the DWP are using sanctions as a last resort. In many cases, they are being used as a first resort. We all know of cases in which people have been sanctioned for the most petty of breaches.

[Stewart McDonald (Glasgow South) (SNP)]

During the last Parliament and the election campaign, Tory Members chuntered on about the Labour party apparently wishing to weaponise the national health service. From the assessment that my hon. Friend gives, I am sure he agrees that the Tories have weaponised the social security system and are terrorising people across the country with it.

[Tommy Sheppard]

My hon. Friend makes an excellent point. It is because of the iniquity of the current system, and the prospect that is being held out of worse things to come, that we seek a change. We seek to be able to take control of our welfare system in Scotland and shape it so that it meets the aspirations of the people. The hon. Member for Nottingham North (Mr Allen) said earlier that Scotland could perhaps be an example of what might happen in the rest of the United Kingdom, and I very much hope that will be the case.

[Wayne David]

I congratulate the hon. Gentleman on the tone of his contribution. It is important that he recognises that the problems that he is lucidly describing apply to many working-class people throughout the United Kingdom, including in my constituency. We hope that the new powers will do something to help people in Scotland, but I ask him to remember that people throughout the United Kingdom are affected.

[Tommy Sheppard]

I absolutely understand that. If we get a chance in the years ahead, while welfare remains the responsibility of the UK Parliament, to join the Labour party in voting to apply the measures that we will introduce in Scotland to the hon. Gentleman’s constituents, I will be happy to take the opportunity to do so.

I turn to the Secretary of State’s veto, which has been mentioned. I know he will deny that it is a veto, but everyone else who has looked at the provisions thinks it is a veto, including most third sector organisations in Scotland. It will allow the Secretary of State to object to regulations that the Scottish Parliament might introduce to improve the welfare system in Scotland. How can it be right that a power is devolved yet not devolved, and that the Secretary of State will retain authority to govern such decisions? In an earlier stage of the debates on the Bill, one Conservative Member said that we should all trust each other and that life would be an awful lot better. Could the Secretary of State not find it in his heart to trust the Scottish Government to make regulations? After all, there are fairly closely defined parameters for those regulations, so why on earth burden everyone with the requirement that the Scottish Government have to seek the Secretary of State’s consent? It is absolutely ridiculous.

If there is one way in which Secretary of State could indicate that he is listening to Scotland, it is by saying, “Fair enough—if the Scottish Government take a decision, we will let them get on with it, because we have transferred authority. We do not have to keep looking over their shoulder and checking their homework.” I hope that he will take that on board.

The crux of the whole argument is political authority. We are now halfway through the fourth day of debates on the Bill, and the Government and the Secretary of State have yet to suggest that they will make any substantive change to it. The Minister for Employment suggested earlier that the clauses we were discussing were in line with the spirit and substance of the Smith agreement, but it is strange that everyone else disagrees, including the Scottish Parliament’s devolution committee, on which the Conservative party is represented. That all-party group said that the clauses as drafted did not represent the spirit or substance of the Smith agreement. Something has got to give, unless we are going to rename the Secretary of State the governor-general and accept that we will not have government with the consent of the people in Scotland. I hope that he will listen to the people and accept some amendments.

When I quizzed the Secretary of State yesterday, he leapt to his feet and said that he was listening, and that he was in fact in conversation with the Scottish Government. He cited conversations with my colleague the Deputy First Minister, John Swinney. That caused John Swinney to write to the Secretary of State to say that he considers that his name had almost been taken in vain. He states:

“you cited our ‘productive discussion’…There will have to be clear movement by the UK Government, otherwise it is becoming harder to justify that description.”

Today the Secretary of State has the opportunity to make some minor concessions to show that he is willing to listen to the people who were elected in Scotland—I am not talking just about the 56 SNP MPs; I think we can safely say that 58 out 59 MPs from Scotland do not want the Secretary of State to have a veto over powers that this Parliament might devolve to the Scottish Government. I hope that he will reflect on that and give some ground in his concluding remarks to show that he is listening.

[Ian Murray]

I pay tribute to the hon. Member for Edinburgh East (Tommy Sheppard), and he was right to point out that we need a welfare system that shows compassion to those who have fallen on hard times, whether through illness, disability, economic circumstances or old age. He told the story of a 62-year-old constituent who was affected by the bedroom tax, and I am sure that all Members can recall similar stories from their surgeries of the most vulnerable being hit the hardest by what is probably the most pernicious tax that any Government have ever bestowed on people. It is right that the Scottish Government have been able to mitigate the bedroom tax in Scotland, and this evening we will vote on new clause 31 that would give the Scottish Parliament the power to consider such matters. The hon. Gentleman is right to have given that description of the social security system. That is the fourth time we have agreed today and I hope we will continue in that spirit.

I will speak to amendments 5, 6, 7 and new clauses 28 and 53 in my name and those of my hon. Friends. Amendments 5, 6 and 7 are different from the SNP’s amendments 118 and 119, but if the SNP presses its amendments to the vote we will support it and withdraw our amendments. Clause 24 gives Scottish Ministers regulation-making powers on the housing costs element of universal credit for claimants who rent their homes. The Secretary of State would also retain regulation-making powers, meaning that both the Scottish and UK Governments would have powers in that area and be able to exercise them independently.

Clause 25 gives Scottish Ministers regulation-making powers in Scotland to provide for alternative payment arrangements for universal credit, including

“the person to whom, or the time when, universal credit is to be paid”.

That will allow universal credit payments to be split between household members, and for payments to be made more frequently than under the UK Government’s current monthly plan. Although I am sure that we all welcome the devolution of those powers, that part of the Bill has caused considerable controversy by affording UK Ministers what some have interpreted as a veto over the Scottish Government’s regulation-making powers. That relates to the requirement in clauses 24 and 25 that, before exercising their regulation-making powers, Scottish Ministers consult the Secretary of State on the practicability of implementing proposed changes to universal credit, and obtain his agreement on when those changes are to happen. It is worth examining whether that amounts to an effective veto.

The Deputy First Minister John Swinney—he has just been mentioned by the hon. Member for Edinburgh East—has detected in what he calls those “pretty innocuous requirements” a sinister intent on behalf of the UK Government to exercise “a blocking power” that would act to

“prevent the Scottish Government from doing something”.

What does the UK Government seek to do with these provisions? I do not believe that the current provision is intended as a veto, but it could be more clearly worded to remove any ambiguity.

As I said on Second Reading, the Government have an opportunity to clear up any ambiguity, and if they are intent on saying that there is no effective veto in the Bill, they should remove that ambiguity once and for all. Amendments 5, 6 and 7 seek to allay the concerns of the Deputy First Minister and the charitable organisations that have been mentioned, by clarifying that Scottish Ministers need only “consult” the Secretary of State about the timing and—crucially—the delivery mechanisms of any new regulations.

16:15

I understand and fully appreciate that if a discretionary housing payment is made by the Scottish Government to those liable for the bedroom tax, if I may use that particular example, they have a delivery mechanism. A pot of money can be given to local authorities so that they can distribute that discretionary payment. If there is an addition to universal credit and the Scottish Government have the power to alter universal credit, the implications for the delivery mechanism are crucial, because the Scottish Government may have to use the Department for Work and Pensions or another reserved delivery mechanism that is part of the UK Government. If the veto is a veto in the sense that the Secretary of State needs to approve the delivery mechanism, he must consider redrafting the clauses to make that clear. If a discretionary payment were to be made on a reserved benefit or a top-up benefit that is currently paid through the complicated system of the DWP, we would need some discussion of how that would operate. I would appreciate it if the Secretary of State—or the new governor-general of Scotland, as he has been termed this afternoon—responded to those points about the veto.

New clause 28 proposes the full devolution of housing benefit to the Scottish Parliament. This is another new clause, on a serious issue, that has attracted significant support from across the third sector, including from the Scottish Council for Voluntary Organisations. There are a number of compelling reasons why we believe housing benefit should be devolved, including the joint report today to the UN by the four UK Children’s Commissioners, which warns that child poverty levels in the UK are unacceptably high and rising—their main concern being the housing element.

[Andrew Gwynne]

Is not another compelling reason for the effective devolution of housing benefit to the Scottish Parliament that housing policy is already devolved? It would allow the Scottish Government to have a fully integrated housing policy, using those resources much more smartly and, effectively, being able to abolish the bedroom tax.

[Ian Murray]

I have a touch of déjà vu, as that is twice my hon. Friend has intervened with the next sentence of my speech—[Interruption.] Yes, I should stop sharing it around. He is right, and that is exactly what we said in our submission to the Smith commission. Perhaps he has read it—if he has any trouble sleeping, I highly recommend it to him. We want to increase the powers of the Scottish Parliament in areas that are closely related to devolved services, especially if that allows us to address and eliminate anomalies in the administration and delivery of vital public services. Housing policy is one such anomaly.

Most aspects of housing policy, specifically those relating to social housing, are already devolved to Scotland, including—most recently—discretionary housing payments. Social housing and housing benefit are inextricably linked: it therefore does not make sense for a devolved legislature to have control over one and not the other. That view is shared by the Institute for Public Policy Research. Devolving housing benefit to Scotland would allow for a more holistic approach to housing policy in Scotland, affording the Scottish Parliament and, crucially, local authorities far greater autonomy to tailor delivery to suit local and regional needs and circumstances. It would also transfer to the Scottish Parliament significant new resources with which to deal with the ongoing crisis in social housing.

At present, demand for social housing in Scotland, as across much of the UK, is greatly outstripping supply. Indeed, Scotland is facing its biggest housing crisis since the second world war with nearly 180,000 people in Scotland on social housing waiting lists, including 23,000 in Edinburgh alone. Earlier this year, Audit Scotland estimated that Scotland will need more than 500,000 new homes in the next 25 years. Under this Government, we have the lowest number of houses being built since 1947, and our public housing stock is decreasing drastically. The number of new social homes being built each year is down by more than 20%. generation rent is overlooked by the Government: Those in Scotland’s growing private rented sector face rising rents and being forced to move house too often. An individual living in social rented housing has the same address for an average of only 2.6 years, and families make up nearly half the people who are moving around in less than that average.

In the past 10 years, the number of people living in the private rented sector has doubled to 368,000; the number of households in poverty in the private rented sector has also doubled in the past decade, to 120,000. In 2014, almost 1 million households, or 2 million individuals, were living in fuel poverty, an increase of almost 300,000 on the previous year. That all relates to policies and their impact on people living in inadequate private housing. We will continue to fight for a better deal for the private rented sector.

Shelter Scotland, the much-respected charity, identified the negative effect of homelessness and temporary housing on children’s education and health. It researched the impact, particularly on children and on families with children, of living in inadequate housing in the private rented sector, as well as of homelessness, the inability to get into social housing and being stuck in temporary housing for too long. I will pick out just one or two points.

The research states that homeless children are two or three times more likely to be absent from school than other children due to the disruption caused by moving into, and between, temporary accommodation. I see that in my own constituency, where the situation is drastic. My constituency must have one of the most acute social housing shortages in the country. Many families end up either stuck in temporary accommodation or moved around temporary accommodation regularly. Homeless children are three or four times more likely to have mental health problems—a fairly obvious conclusion because of such instability. Some 90% of respondents to a Shelter survey said that their children had suffered from living in temporary accommodation. The longer families live in temporary accommodation, the more likely they are to attribute to it their worsening health.

It is important that we should be able to deal with those issues, but there is no doubt that housing benefit and the ability to access housing benefit resources are inextricably linked with building more social homes and with the whole of social housing policy within the Scottish Parliament. Karen Campbell, the director of policy and operations at Homes for Scotland, stated:

“Scotland’s housing crisis affects all tenures, whether for social/private rent or sale. This is having a severe impact on the lives of Scots across the whole country, particularly young people and growing families. No other sector impacts such a wide range of policy issues yet the number of new homes being built has fallen to its lowest level in some 70 years, threatening Scotland’s social and economic well-being.”

From the results of the Shelter survey, we can see that the social wellbeing of many families, and particularly the children in those families, is a real issue.

Devolving housing benefit to Scotland would afford the Scottish Parliament substantial additional funds to address the shortfall. It would unlock up to £1.8 billion of resources, the largest spend on a single benefit in Scotland after the old age state pension. That could, over time, be invested in the provision of new housing stock in Scotland. I appreciate that that cannot happen overnight, because there would have to be some mechanism to allow the fund to be accessed—potentially through prudential borrowing, which local authorities could use to reduce housing benefit and build more houses. That would not only serve to alleviate the pressure on social housing, but create jobs and help to depress housing costs across the private rented sector. As the Joseph Rowntree Foundation noted,

“investing in affordable supply will place downward pressure on rents and subsequently reduce the burden of housing costs upon the budgets of low income households living in the private rented sector in Scotland.”

That point is hugely important. The Government have tried to come down incredibly hard on the housing benefit bill, but it has doubled in the past decade or so—they have not been able to deal with the supply and demand issue. The number of my constituents who end up in the much more expensive private rented sector—almost double the rent of social or affordable housing—clearly pushes up the housing benefit bill. Before the Secretary of State, or the governor of Scotland, jumps to his feet and tells us that the housing benefit bill is going up because of worklessness, let me state the reality: nearly 70% of my constituents in receipt of housing benefit are actually in work. This is a huge issue not just in terms of social impact, but in getting the housing benefit bill down. We have to get people into much more affordable housing.

As an added and not insignificant bonus, devolving housing benefit would, as we have discussed, allow the Scottish Parliament to put an end to one of the cruellest and most iniquitous policies of recent years—the bedroom tax. We need to consider double devolution, a point made regularly in these debates, as the Scottish Parliament is very centralist. We need to devolve power down to the communities best able to use them. For example, housing benefit should be administered at the local authority level because each local authority has its own housing needs and demands—for example, in respect of key workers and specific demographics. I hope that these strong arguments will convince the Government and hon. Members to support our new clause 28.

The Bill could also be enhanced on the provision of childcare, which Labour’s new clause 53 would do by devolving the childcare element of universal credit to the Scottish Parliament. The childcare element is closely linked to the provision of employment support programmes, and devolving it would increase the capacity of the Scottish Parliament and local authorities to help parents obtain and remain in employment by assisting them with the rapidly escalating cost of childcare—the cost of childcare in Scotland has risen much higher than in the rest of the UK. It is one of the main obstacles to parents entering and remaining in the labour market. Devolving the childcare element would afford the Scottish Parliament a valuable new mechanism for removing that obstacle and allowing parents to enter the jobs market.

Dr McCormick, the Scotland adviser to the Joseph Rowntree Foundation and a member of the Social Security Advisory Committee, stated in response to the Smith commission proposals that

“the costs of childcare in Scotland are high by international standards and rise much faster than inflation... Childcare is a clear example where both closer alignment with the Scottish Government’s childcare offer and stronger incentives to invest are needed. The Bill should empower the Scottish Government to vary childcare allowances via Universal Credit, on the same basis as housing allowances.”

New clause 53 would provide for the power to be devolved to the Scottish Government so that they can do precisely that, and I hope that the Government and hon. Members across the House see the value of supporting it.

I wish to turn briefly to other amendments, chiefly to new clauses 39, 40, 44 and 46, in the name of the SNP, and to new clause 55, in the name of the SNP’s favourite Conservative, the hon. Member for Gainsborough (Sir Edward Leigh). As I said, there is no fundamental problem with the devolution of the entire social security system—or, indeed, of the entire income tax system or any of these other policies. They do, however, have one thing in common. New clause 55 would end the UK-wide welfare state, and we do not wish to see an end to it—that will not come as a surprise to the House. We completely reject anything that would end the UK-wide welfare state. In the context of keeping the UK-wide welfare state together, it would not be desirable to devolve to the Scottish Parliament powers that the Smith agreement stipulated should remain reserved—for example, around Jobcentre Plus, national insurance contributions and child benefit.

[Andrew Gwynne]

In the past, my hon. Friend has spoken passionately about the need to pool resources and risks across the whole UK. Does he share my concern that the effective ending of a UK-wide national insurance system would also end the pooling of those risks and responsibilities for a UK-wide welfare state?

[Ian Murray]

My hon. Friend must have brilliant eyesight. I am not sure whether it is the glasses, whether he is just insightful or whether he can read minds, but, believe it or not, I am about to come to that. Perhaps we are on the same wavelength.

I shall examine some of those issues now. I am a little confused, because I am not sure whether the hon. Member for Banff and Buchan (Dr Whiteford) moved new clauses 39 and 40 on the devolution of national insurance contributions. [Interruption.] She might be moving them later. I know she spoke to them, but I am unaware that she moved them. For the record, we would oppose the devolution of national insurance contributions, for the very reason that my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) has just set out. The pooling of risks and resources is explicit in national insurance contributions. The UK national insurance system is the largest insurance scheme of all and secures benefits to all through the widest possible risk pool.

The SNP’s new clauses seek to devolve national insurance in a manner that betrays a basic lack of understanding about the highly integrated and interlocking nature of the social security system, and they would mean having to deal with a huge array of complex issues. Even if we went beyond the principle of the pooling and sharing of resources, there would have to be a separate Scottish national insurance fund to receive all future national insurance contributions from Scottish taxpayers; all existing contributory benefits accumulated up to the vested date would have to be honoured by the UK national insurance fund; and transfers from the Scottish to the UK national insurance fund would have to follow Scottish taxpayers moving elsewhere in the UK.

Some issues were mentioned by the hon. Member for Gainsborough in speaking to his new clause 3, which related to the first part of the Bill. In talking about full fiscal autonomy, he mentioned that there would have to be significant redress to the UK national insurance fund. He raised issues about survivors’ benefits and where the people affected were living. As well as the principle of not devolving national insurance, there is also the matter of how to deal with the complex issues that would be raised across the United Kingdom.

16:30

At this point, I would like to look at the supporting evidence and testimony of the Scottish Council for Voluntary Organisations, which has been superb in providing briefings on some amendments and commenting on aspects of the Bill. In a briefing, which I am sure Members have read, it made astute observations about why devolving national insurance is fundamentally not the best idea for either the UK or Scotland. It said:

“National insurance is used to calculate entitlements to the second state pension and entitlement to some of the old forms of JSA and ESA that are still reserved through Universal Credit. Indeed, many people will have topped-up their NI contributions in order to secure their pension. SCVO does not support the devolution of pensions, and therefore, due to the potential confusion and unintended consequences that may arise, we also do not support the devolution of National Insurance.”

A plethora of other organisations would warn against the matrix of national insurance being devolved—including the Institute for Fiscal Studies, which has been quoted positively on a number of occasions by SNP Members this afternoon only 12 hours or so after they completely trashed the organisation for its analysis of full fiscal autonomy. I am glad that there has been a conversion and they now support the impartial and independent Institute for Fiscal Studies—alternatively, if I may be so bold, it could be that it suits the SNP to quote it on some occasions, but not on others.

I have laid out the Labour party’s position on devolution. We will support the SNP’s amendments 118 and 119 if they wish to press them, and we will withdraw ours as we are not voting on the same principle of removing the vetoes. I hope that the Secretary of State will give us some positive news—that we might not have to vote at all. Would not that be a wonderful thing for this Committee? We could get away early this evening if the Secretary of State came to the Dispatch Box and spent 90 seconds saying, “Everyone is absolutely right, and I am wrong. I am going to accept all these amendments, so Scotland can flourish with the welfare state that it deserves and wants to design.”

I finish where I started—with the Labour party as the guardians of the welfare state across the United Kingdom. There is a significant difference between what we believe and what the SNP believes about breaking up that welfare state. These are broad principles; neither is right or wrong. We believe that there should be pooling and sharing across the UK—a principle that we have shared and that has provided a thread running through all our amendments. What we wish to see is a Bill that responds to the Smith agreement and goes further than it in allowing the Scottish Parliament and, indeed, the Scottish people, to design something in the best interests of a welfare state that fits not just Scotland, but Scotland’s communities.

[David Mundell]

On this occasion, I am afraid I will disappoint the hon. Member for Edinburgh South (Ian Murray) because I am going to speak for more than 90 seconds. I have enjoyed hearing the full contribution rather than just interventions from the hon. Member for Ross, Skye and Lochaber (Ian Blackford), although the length was probably not that different. The hon. Member for North Ayrshire and Arran (Patricia Gibson) gave a spirited contribution, although I did not recognise myself in her description. As for the hon. Member for Edinburgh East (Tommy Sheppard), we are in agreement on so many things; it is only bits in his contribution that spoil it. I do trust the Scottish Parliament and I want it to make significant decisions on welfare unimpeded by the views of the UK Government. I shall say more about clause 25(3) later, but there is no restriction on the policy decisions of the Scottish Government and Parliament in relation to those provisions. The issue is about timing.

Let me make some wider comments about what was said by the hon. Gentleman. As I have said throughout, I am reflecting on points that have been made during all our discussions. I have given that undertaking not just to Parliament but to the Devolution (Further Powers) Committee, and, indeed, to the Scottish Government. If Members want selective quotations from Mr Swinney’s letter, I will give them one that I think sums up the situation.

“When we met on 25 June we agreed on a programme of work to be undertaken before Report stage with a view to producing a Bill that reflected the Smith commission, the concerns of stakeholders and the views of the Scottish Parliament.”

That is absolutely my position, and I am committed to working with the Deputy First Minister in that regard.

[Tommy Sheppard]

Does the Secretary of State not accept that, if we read further in the letter, we find that the Deputy First Minister fears that that process is not going to take place? We, too, are marvelling at the fact that after four days of debate, the Secretary of State still refuses to accept one single line of one single amendment that has been put to him.

[David Mundell]

I think that the hon. Gentleman has got the order of the statements in the letter wrong. Mr Swinney says that if the process did not take place, the undertaking would obviously not be valid. That is of course correct, but my approach to the Bill is to proceed with it on the basis that it fully reflects the Smith commission proposals, and that it takes account of the issues and concerns that have been raised.

SNP Members have tabled a number of amendments with which I do not agree, but which I think might be described as Smith-plus. We are listening to the points being made about the amendments, but we are also listening to what everyone is saying about the Bill in its current form and how it reflects Smith. I have appeared before the Devolution (Further Powers) Committee, and we have had a lengthy discussion about the clauses that we have debated today. I expect to have further discussions with the Committee, and there will, of course, be further parliamentary debate.

Much of what is being said is predicated on the view that the Scottish Government and the United Kingdom Government are always at odds. That is simply not the case, and it should not be given common currency. On 90% of issues, the two Governments work together very closely for the benefit of the people of Scotland. They are working together closely on very serious ongoing issues at this moment, and there are absolutely no problems and no need to resort to external review processes. The Smith process established a shared response for welfare, and I think that it shows that we must adopt a new mindset. That, to me, is what the spirit of the Smith commission is about: working together in a shared space. A commitment to doing that is as important as anything in the Bill.

The hon. Member for Banff and Buchan (Dr Whiteford) is always extremely passionate about these issues. I generally consider her to be a reasonable person until she stands up to speak in the Chamber. The way she has portrayed the relationship between the two Governments is simply not correct. We have established a joint ministerial working group on welfare, and last Thursday I met Alex Neil—no doubt there will be a letter about that meeting—to discuss the transitional arrangements and the next meeting of the joint ministerial group. Our discussions have been very productive and have led to a great deal of good work on the transition of powers and the establishment of processes in Scotland. I see no reason to believe that that cannot continue. That is what people in Scotland want: they want the two Parliaments and Governments to work together. They do not want to see constant bickering and I am making a determined effort to ensure that that does not happen and that we can deliver a process.

I am conscious of, and respect and take into account, the views of charities and voluntary organisations.

[Neil Gray (Airdrie and Shotts) (SNP)]

If the Secretary of State is listening to civic Scotland, third sector organisations, the Scottish Government and SNP Members, which of the amendments tabled by us and Labour will he accept?

[David Mundell]

I will repeat what I said earlier: I have agreed a programme of work to be undertaken before Report, with a view to producing a Bill that reflects the Smith commission, the concerns of stakeholders and the views of the Scottish Parliament. I will reflect on the amendments and the case that has been made for them.

I am listening to what has been said about clause 25(3)(b), which is a sensible consultation requirement about timing, not policy. Good governance in Scotland will require that decisions taken by the Scottish Government about new powers can be implemented in a timeous way. That is what it is about—respect in a shared space and working together on welfare.

[Ian Murray]

Could the Secretary of State give a practical example of a policy that the Scottish Government may introduce whose delivery mechanism comes through the Department for Work and Pensions, so that we can be clear and trust that what he is saying is correct and that there is no veto?

[David Mundell]

I do not yet know what proposals the Scottish Government will make. I have made it clear that I would like to know what they will be, because we have heard significant criticisms of UK Government policy. That is, of course, legitimate in this Parliament and, indeed, the Scottish Parliament, but we need to know the detail. The joint ministerial group on welfare wants to understand where the Scottish Government want to go with specific programmes, so that we can help and facilitate the transitional arrangements and deliver what they want to do.

I want the Scottish Government to be held to account. I do not want the continuation of the current situation, whereby people stand up in Parliament and make grand statements for which they are not held accountable and without explaining where the money will come from or how the system will work in practice. A lot of us who live in Scotland know that what the Scottish Government say does not always—shock, horror—happen in reality. I want a system for which the Scottish Government will be held accountable and under which they will have welfare powers and will have to set out for the people of Scotland how much their policies will cost and where the money will come from.

I said in a previous debate that my hon. Friend the Member for Gainsborough (Sir Edward Leigh) was the 57th SNP Member, and today he has proved that by tabling new clause 55, which is an even stronger proposal than what the SNP says is its policy. It is a fact that no Scottish MP has tabled an amendment to devolve UK pensions, and that speaks volumes. It tells us that even the supporters of independence accept that there are parts of welfare where it makes sense to share resources and risk with the rest of the UK. It is clear that pensions are safer and more affordable if we work with everyone else in the UK and that it would be wrong to devolve UK pensions.

MPs have to respect the referendum result, at which people in Scotland voted to remain part of a United Kingdom and hold on to the benefits of being part of it. Looking after the people of Scotland who are retired, unwell or out of work is now a shared space in which the UK Government and the Scottish Government need to work together. This is about getting the right balance and having the best of both worlds. Sometimes it will be right for people in Cumbernauld to know that they have exactly the same protection and support as people in Cardiff or Carlisle. On other occasions, the Scottish Parliament might want to offer different help for people in Scotland, using the taxes that have been raised in Scotland.

16:45

The hon. Member for Edinburgh South spoke to various amendments. I do not share his views, and I do not believe that he made a case for the proposals on childcare. I shall comment in more detail, however, on what he said about new clause 28, which covers an issue that has been raised before. The Scottish Government already have competence to work with all housing sectors in Scotland to support and encourage new builds. Indeed, they have been very active in heralding their affordable housing supply programme, which ranges across all types of tenure.

The Scottish Government also have the ability to regulate the private rental market, and I believe they have been active in that area. The Housing (Scotland) Act 2014 included a number of provisions to deal with what might be classed as standards of housing in the private sector, such as powers for local authorities to tackle disrepair in the sector. As regards funding, hon. Members will no doubt realise that housing benefit is paid to claimants for the express purpose of meeting an individual’s housing costs when the eligibility rules are met. Because it covers rent at a specific point in time, there would be no margin from which to create a house building investment fund from housing benefit.

However, we have already heard how the powers in the Bill will give Scottish Ministers flexibility over housing costs within universal credit. That flexibility could be used to reduce housing costs for renters, and if Scottish Ministers wished to spend in other areas in order to generate funding, they could do so. There is no need for housing benefit to be devolved to allow for that. Establishing such a fund would also require appropriate powers to be put in place.

It was interesting to hear hon. Members’ assumptions about the amount of money they would have available for investment in housing. The figure of £1.8 billion was mentioned. That equates to the total amount of housing benefit expenditure in Scotland, which appears to suggest that hon. Members are saying that housing benefit should be abolished in Scotland. I am assuming that that is not really their intention, but the amendment could still have serious consequences for Scottish landlords in the social and private sectors. Hon. Members need to think carefully about the implications for the business viability of housing associations and private landlords. Housing benefit is a payment towards the rental liabilities of people on benefits. It is not intended to fund the expansion of housing stock.

[Ian Murray]

I am grateful to the Secretary of State for that explanation, but the point that he is missing is that there is no incentive for either local government or the Scottish Government to build new affordable homes, because the housing benefit bill comes from a different Government—the UK Government. Devolving responsibility for housing benefit would devolve the responsibility to build more affordable and social homes and the accountability for so doing.

[David Mundell]

This is a matter for the hon. Gentleman’s and my colleagues to raise in the Scottish Parliament. They need to hold the Scottish Government to account for their housing policies.

The hon. Gentleman’s amendment would also carry a significant cost, and although it appears to be a simple proposition, that is in fact far from being the case. On that basis, I am unable to recommend acceptance of the proposal. As I have said, however, I am reflecting on all the amendments that have been tabled. My intention is to move as quickly as possible to achieve the devolution of these significant welfare powers to the Scottish Parliament, so that we can move on and have a proper, mature debate in Scotland about how the powers should be used and who is going to pay the cost of any additional benefits that might be proposed by a future Scottish Government.

[Dr Eilidh Whiteford]

We have had an interesting and wide-ranging debate on the amendments this afternoon, perhaps more wide-ranging than I could ever have envisaged. I am not sure how we managed to get sidetracked into Greece so early in the afternoon’s debate, and the comparison between Greece and Scotland did seem rather ill-conceived. It was, of course, refuted ably and comprehensively by the hon. Friend of the right hon. Member for Wokingham (John Redwood), the hon. Member for Gainsborough (Sir Edward Leigh).

However different Scotland and Greece might be in cultural, economic and climatic terms—

[John Redwood]

rose—

[Dr Whiteford]

I will not give way just at the moment, because I think we have talked quite enough about Greece. I want to make a couple of substantive points about the issues that were raised, however.

Whatever differences Scotland and Greece have, what we have in common, apart from our patron saint, is the fact that people in Scotland will feel great sympathy for their fellow European citizens in Greece and will have a sense of solidarity about the level of deprivation they are having to undergo. My hon. Friend the Member for Na h-Eileanan an Iar (Mr MacNeil), who is not in the Chamber at the moment, made the important point that the real morality tale from the Greek situation that is relevant to our discussions today is that austerity does not work and that we need the power to create alternatives to it.

The other salutary tale we heard this afternoon came from the hon. Member for Foyle (Mark Durkan) who, with his usual eloquence, drew on his experiences in Northern Ireland to warn of the difficulties ahead if we fail to legislate clearly. He also warned of the dangers of what has been termed “karaoke legislation” in Northern Ireland, in which people have powers but not the power to enforce those powers.

My hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) made a powerful speech that highlighted some of the real differences between the challenges we face with welfare and pensions in Scotland and those in other parts of the UK, pointing out the low life expectancy and the poor value that Scottish pensioners get. Indeed, we have some of the lowest pensions in Europe and Scottish pensioners end up about £10,000 each worse off because of our pension arrangements. My hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson) drew attention to the issues with the work allowance, which is a really good example of what we might do with these powers to improve the support we give to lower paid workers.

Above all, we need to talk about the veto. My hon. Friend the Member for Edinburgh East (Tommy Sheppard), who is quickly becoming one of the stars of this Parliament, set out how new clauses 45 and 46 would enable constructive working between the UK and Scottish Governments. That means not just fine words about constructive working but fine working.

To move on to those who spoke from the Front Benches, I welcome the support from the hon. Member for Edinburgh South (Ian Murray) for our lead amendment and for amendment 119. I listened very carefully to the Secretary of State’s conclusion to the debate. I fully accept that there are constructive relationships through the joint ministerial working group and many other parts of the Scottish and UK Governments, but when there are genuine differences of opinion and of ideological direction as well as different policies and different circumstances, we need the mechanisms and the legislation that enable us to deal with them effectively. That is what we still do not see on the face of the Bill.

The problem is that the Bill, in its current form, does not cut the mustard. The Secretary of State’s position on this could probably be summed up by the old saying, “They’re aw oot o’ step but oor Jock.” There is a consensus in Scotland, among all the other Scottish MPs, among MSPs, including MSPs from the Secretary of State’s own party, and among civil society that the veto needs to be taken out of the Bill. I urge the Secretary of State to listen. Part of the problem in Scotland for too long has been that people have not listened, but the voices of the people of Scotland will not be silenced. If the Secretary of State thinks that these issues will go away, I can tell him that they will not. We have heard salutary lessons about why we need to have the legislation pinned down and secure.

Earlier in the debate, I should also have stated my intention to move new clauses 39 and 40 and I am grateful to the hon. Member for Edinburgh South for flagging up that omission. We will press—

[Ian Murray]

Will the hon. Lady give way?

[Dr Whiteford]

I am just summing up. We will press new clause 39 to a vote later, and in the meantime we also want to vote on amendment 118.

Question put, That the amendment be made.

16:54

Division 32

Ayes: 261

---

Labour: 200
Scottish National Party: 55
Liberal Democrat: 5
Social Democratic & Labour Party: 2

Noes: 313

---

Conservative: 312

Clause 24 ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.

Clause 26

Employment support

[Hannah Bardell (Livingston) (SNP)]

I beg to move amendment 120, page 27, line 22, leave out from beginning to “for” in line 23 and insert “Arrangements”.

Amendments 120, 121 and 122 make provision for the Scottish Parliament to have power to legislate on arrangements for employment support programmes.

[The Temporary Chair (Sir David Amess)]

With this it will be convenient to discuss the following:

Amendment 121, page 27, leave out lines 27 to 29 and insert—

“(b) assisting persons (including persons claiming reserved benefits) who are unemployed or at risk of long-term unemployment to select, obtain and retain employment”.

Amendments 120, 121 and 122 make provision for the Scottish Parliament to have power to legislate on arrangements for employment support programmes.

Amendment 113, page 27, line 29, leave out

“where the assistance is for at least a year”.

This would allow the provision of employment programmes where assistance is for less than a year. The Scottish Government could develop support programmes for those who repeatedly move in and out of short periods of work, or admit people to the Work Programme early.

Amendment 122, page 27, line 34, leave out “another person” and insert

“a person other than the person making the arrangements”.

Amendments 120, 121 and 122 make provision for the Scottish Parliament to have power to legislate on arrangements for employment support programmes.

Amendment 9, page 27, line 36, after “person”, insert

“in conjunction with the local authority”.

Amendment 114, page 27, line 39, at end insert—

“(b) provision of support for disabled persons in the form of non-repayable payments to enable them to access employment, remain in employment, or move into self-employment or start a business.”

This amendment provides for the devolution of the Access-to-work scheme.

Amendment 10, page 27, line 41, at end insert “and

(d) temporary jobs paid at least the national minimum wage providing a route back into further work.”

Clauses 26 to 30 stand part.

New clause 43—Job search and support—

In Part 2 of Schedule 5 to the Scotland Act 1998, omit Section H3 (job search and support).”

This new clause would devolve employment support programmes to the Scottish Parliament.

[Hannah Bardell]

It is a pleasure to serve under your chairmanship, Mr Amess. I am delighted that we have support for the amendments from our friends in the Labour party. As the SNP spokesperson on fair work and employment, I rise to speak up for the many who will look to the Scotland Bill to deliver on Smith and give the Scottish Parliament the tangible new powers so trumpeted by those on the Government Benches.

We on the SNP Benches find the powers on offer today sadly lacking, and I am disappointed to see the lack of willingness to accept any SNP amendments. Smith was clear on the devolution of employment programmes. He said:

“"The Scottish Parliament will have all powers over support for unemployed people through the employment programmes currently contracted by DWP (which are presently delivered mainly, but not exclusively, through the Work Programme and Work Choice) on expiry of the current commercial arrangements. The Scottish Parliament will have the power to decide how it operates these core employment support services. Funding for these services will be transferred from the UK Parliament in line with the principles set out in paragraph 95.”

However, the Scottish Parliament Devolution (Further Powers) Committee, in its interim report on the draft Scotland Bill clauses, considered at paragraph 335 that

“the clauses as currently drafted do not fully implement the Smith Commission recommendations. The Committee considers that the Smith Commission intended that all employment programmes currently contracted by DWP should be devolved. Therefore, the Committee recommends that any future Bill should not place any restriction on the type of person receiving support or in regard to the length of unemployment any person has experienced. The Committee considers that this should include the devolution of the Access to Work Programme.”

At paragraph 337 the Committee recommended that

“the principles which will govern the operation of inter-governmental relations with regard to welfare, including employment support, should be placed in any future Bill devolving power in this area.”

The Committee expected that that would include the principles by which the Scottish and UK Parliaments could

“maintain scrutiny and oversight of the inter-governmental machinery with regard to welfare and employment support.”

The employment support clause, clause 26, as introduced, does not have any changes from the draft clauses. The UK Government have not, therefore, followed the views of the all-party Scottish Parliament Committee, on which there were Conservative members, and the Bill, as it stands, does not deliver on Smith.

There is no evidence of the respect agenda in the Bill. It is vital that the employment powers give Scotland the power to give Scottish solutions to Scottish challenges. It is not good enough to promise one thing in the Smith commission and then to come to this House with a Bill that does not live up to the promises made. Furthermore, the overwhelming mandate that the Scottish people have given the SNP indicates that they expect this Parliament to deliver beyond Smith. Smith is not the floor or the ceiling of our aspirations for the people of Scotland.

[Andrew Gwynne]

The hon. Lady makes a compelling case for employment support to be devolved to Scotland, but does she agree that it needs to be devolved still further within Scotland so that local authorities in Scotland can develop work programmes to suit their needs? The needs of Glasgow, for example, are very different from the needs of the highlands.

[Hannah Bardell]

The hon. Gentleman makes a fair point and I agree with him to some extent. We have had significant success with our Opportunities for All programme. He obviously has some insight into what I was going to say. I will come on to that later in my speech.

The people of Scotland deserve better. We need a streamlined system that looks holistically at how we support people back to work and what kind of employment they are offered, rather than the random approach that seems to take place much of the time at present. We need to look at people’s skill sets and expertise and what potential they have to offer. We hear much talk of aspiration from the Government Benches, yet the stream of people I have had through my door at constituency surgeries in Livingston in the past few weeks, concerned about benefit cuts and sanctions, suggests that the concept of aspiration and opportunity certainly did not make its way into this part of the Bill. If we are truly to give the unemployed opportunities through these programmes, the Scottish Parliament must have the powers it needs at its disposal, to tailor these programmes for those most in need.

As the devolution committee pointed out at paragraph 303, the original Scotland Act 1998 reserved employment policy. That included job search and support, with the exception of careers services and training for employment. Draft clause 22, which became clause 26 in the published Bill, set out further exceptions to the reservation in the 1998 Act: assisting disabled persons to select, obtain and retain employment, and assisting persons claiming reserved benefits who are at risk of long-term unemployment to select, obtain and retain employment, where the assistance is for at least a year.

However, a range of organisations expressed a view on whether the suggested clause delivered on the Smith agreement. At paragraph 306 Inclusion Scotland is quoted as saying in its written evidence:

“The Smith Commission proposes that ‘The Scottish Parliament will have all powers over support for unemployed people through the employment programmes currently contracted by DWP.’ However, both the narrative and draft clauses appear to restrict this power to employment support schemes that last over a year. It is not clear why this restriction has been included and it appears to be a direct contradiction of the Smith Commission proposal.”

Inclusion Scotland argued that

“the most effective employment support schemes are short term schemes designed to identify the barriers preventing someone gaining employment and providing support, training and assistance to overcome these. If a scheme lasts for more than a year without supporting someone into employment, surely it has failed?”

Inclusion Scotland also pointed out that the UK Government also appear to have arbitrarily applied the reference to conditionality and sanctioning for universal credit to devolved employment support schemes, including the use of mandatory placements. It states:

“It is not clear how this is compatible with the Scottish Parliament having all powers over support for unemployed people through the employment programme, for example if the Scottish Parliament determines that participation in such schemes should be voluntary.”

17:15

The Scottish Government’s view, presented to the devolution committee, was that the proposed clause fell short of implementing the Smith commission’s recommendations and that the Scottish Parliament should have all powers over support for unemployed people through the employment programmes currently contracted by the Department for Work and Pensions. In a follow-up letter after giving evidence to the Committee, Deputy First Minister John Swinney stated:

“We strongly agree with the concerns about employment raised in evidence to the Committee. The main effect of Clause 22”—

now clause 26—

“of the draft Scotland Bill suggested by UK Government is that it would devolve Work Programme and Work Choice only. We believe that devolution of employment support on this basis is inconsistent with both the letter and spirit of paragraph 57 of the Smith Commission report”.

The relationship between devolved and reserved powers and the two Governments is particularly important in relation to employment programmes. The importance of devolving those powers was highlighted by Jim McCormick of the Social Security Advisory Committee when he stated in evidence to the devolution committee:

“It strikes me that a revised work programme could help people at risk of long-term unemployment and disabled people into work and could support them in staying in work. Under the proposals, we might end up in a situation in which future public service providers in Scotland—which might be third sector providers—would be accountable to the Scottish Parliament for their financial performance and their programme performance but would still have to apply a conditionality system and a sanctions regime to those programmes.

As well as creating problems for claimants, that would create strange incentives for providers—it would create incentives for gaming and false reporting. That is a particularly jagged edge, because one thing that we know about the current social security system and the welfare reforms is that a tougher sanctions system has caused a great deal of difficulty for some of the most vulnerable people in our society. That jagged edge around conditionality is a particular cause for concern.”—[Scottish Parliament Official Report, Devolution (Further Powers) Committee, 19 February 2015; c. 15.]

In paragraph 311 of its report the devolution committee explored the interaction between reserved and devolved programmes

“particularly with regard to the DWP conditionality and sanctions regime remaining reserved”.

The report stated that that

“has been of particular concern to some of our witnesses.”

For example, John Dickie told the Committee that

“as far as working-age benefits are concerned, the current reserved conditionality and sanctions regime, which is undermining people’s attempts to move into work and towards the labour market, will still apply. That comes back to Jim McCormick’s point about the jagged edge between what we in Scotland might want to do differently in devolved employment programmes and the requirement for those programmes to work within a reserved benefits regime that too often imposes arbitrary conditions or conditions that are not helpful in supporting people to move into work and which imposes damaging sanctions on them when they fail to meet those conditions.”

That has been discussed widely today. John also stated that he hoped that we could

“reduce the number of inappropriate or arbitrary tasks that people have to undertake to meet the benefit requirements. However, there will be a limit to that, because the benefits regime will be as it is now—unless, of course, we manage to get it changed in the way that we want.”

If the Conservative Government continue to vote as they have done, we will certainly not get what we want and people will continue to be sanctioned in the most iniquitous way. We in the SNP want an end to the punitive and iniquitous benefit sanctions that disproportionately affect women and vulnerable people and often those with mental health problems. In a modern society such as ours, how can we justify, or indeed explain, nearly 150,000 sanctions being applied in Scotland, affecting nearly 85,000 individuals, including nearly 3,000 disabled people, between the end of 2012 and September 2014? If we want to help people to find a job, how is making them hungry and unable to pay bills and increasing their debt supporting them to do that?

Professor David Webster has highlighted that the number of sanctions resulting from the Work programme is, sadly, considerably higher than the number of people obtaining jobs from it. In Scotland, 46,265 sanctions were applied between June 2011 and March 2014 because claimants failed to participate in the Work programme. During the same period, 26,740 job outcomes resulted from the Work programme. That is rather ironic and very sad.

Dame Anne Begg, the former Chair of the Work and Pensions Committee, has said:

“Benefit sanctions are controversial because they withhold subsistence-level benefits from people who may have little or no other income. We agree that benefit conditionality is necessary but it is essential that policy is based on clear evidence of what works in terms of encouraging people to take up the support which is available to help them get back into work. The policy must then be applied fairly and proportionately. The system must also be capable of identifying and protecting vulnerable people, including those with mental health problems and learning disabilities.”

Turning to the Access to Work programme and the lack of clarity in this area, John Swinney said:

“In respect of Access to Work, we have asked the UK Government to clarify whether Access to Work will be devolved under clause 22”—

now clause 26—

“and they have made clear their expectation that as this programme is a JobCentre Plus service to customers and not a contracted employment programme it will remain reserved.”

In response, the Secretary of State for Work and Pensions explained that there were two different definitions because

“claimants need different types of support to enter the job market and that, in the early stages, some of this comes from Jobcentre Plus, which remains a reserved issue. In the longer-term, claimants are referred onto Work Programme or Work Choice and the aspects of the provisions to be devolved.”

In their response to the Devolution (Further Powers) Committee report, the Scottish Government made their view clear:

“Clause 26 of the Scotland Bill is inconsistent with the letter and spirit of paragraph 57 of the Smith Commission Heads Of Agreement”.

Scottish Ministers think the relevant clause of the Bill “contains limitations” that mean it does not deliver on Smith in full. Those limitations are that support can only be provided to, first, those at risk of long-term unemployment; secondly, those claiming reserved benefits; or, thirdly, for assistance lasting for at least one year.

The key policy point is that the way to tackle long-term unemployment is to intervene early. Indeed, one of our main criticisms of the current Work programme is the time people have to be unemployed before the programme is open to them. We wait until people are long-term unemployed—nine months for those up to 24, and 12 months thereafter—before acting, when we should act to support them into employment before they become long-term unemployed.

[Ian Murray]

The hon. Lady is making a marvellous speech about the devolution of the Work programme. I had a private Member’s Bill last year to devolve the Work programme not just to the Scottish Parliament but to the local authorities that are delivering many of the programmes. Would she go further and agree with double devolution down to local authorities?

[Hannah Bardell]

I would certainly be interested in taking a closer look at that and discussing it with my colleagues. I welcome the hon. Gentleman’s intervention.

To deal with youth unemployment, that approach is supported by the EU. We are keen for the powers that we were promised to be delivered to Scotland. Delivery of those powers and agreement on our proposals today would help to create a more joined-up approach to employment service provision for disabled people, as well as for the many others who have been mentioned, and more integrated support for these vulnerable groups.

Although it is demand-led, the current DWP spend on Access to Work in Scotland is disproportionately low. The Scottish Government have previously stated that the programme should be devolved to allow us to promote a more equitable share of spend in Scotland and to get more disabled people into sustained employment.

In summary, it is not just the SNP that sees significant flaws in the Bill. Citizens Advice Scotland notes:

“The Smith Commission Report…provided that the Scottish Parliament should have powers over all employment programmes currently contracted by the DWP. However, Clause 26 of the Bill restricts the powers devolved to employment support programmes that last at least a year. It is unclear why this restriction has been included; the Bill as drafted would appear to only devolve the Work Programme and Work Choice; which is inconsistent with Smith. Clause 26 as currently drafted does not clearly devolve powers over the Access to Work Scheme.”

Both the Scottish Council for Voluntary Organisations and the Scottish Association for Mental Health support the amendments, which serve to devolve all employment powers and functions to Scotland covering Access to Work, devolution of services and Jobcentre Plus.

In Scotland, with the limited powers we have, we have proven that we can make a difference to people’s lives. The SNP Scottish Government have done their best to mitigate the damage done by Westminster cuts to date, but time is running out. If we do not gain the powers that were promised, we cannot continue to protect the vulnerable and grow our economy.

We have an excellent track record on apprenticeships and training for young people. In 2007, just 15,000 people started modern apprenticeships. We are now delivering more than 25,000 of them, and we will increase the number to 30,000 by 2020. To reply to the hon. Member for Denton and Reddish (Andrew Gwynne), the Scottish Government’s Opportunities for All programme has also been a significant success, with more than 90% of young people going on to positive destinations. In my own county of West Lothian, the figure stands at more than 96%. We are glad to announce today that the Scottish Government has got its 250th business, a nursery in West Lothian, to sign up to the living wage.

The opportunity to work is one that the vast majority of people in Scotland seek. The SNP wants dignity in work for all, and I commend our proposals to the Committee.

[Kate Green]

I will speak particularly to amendments 113, 9, 114 and 10, and much of what I will say will echo what the hon. Member for Livingston (Hannah Bardell) said about the devolution of employment programmes.

It is clear that there are different labour markets not just between England, Scotland and Wales but within those nations. That is why I echo the point that my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) made about the opportunity that our amendments and the SNP amendments offer not just for devolution to Scotland but for double devolution of labour market programmes within Scotland.

[Andrew Gwynne]

As a Greater Manchester MP like myself, my hon. Friend will know that as part of the cities and devolution package, Greater Manchester will be invited to bid for the next phase of the Work programme. Does that not suggest that, as my hon. Friend the Member for Edinburgh South (Ian Murray) said,double devolution is needed in Scotland so that communities can develop work programmes that are specific to them rather than centralised in Holyrood?

[Kate Green]

I agree. The intention stated in the Labour manifesto was to devolve labour market programmes to what we described as a combined authority footprint. That would enable recognition of the fact that local labour markets differ and recognition of the different industrial history and characteristics of people in particular parts of the country. Importantly, it would allow close alignment with the skills and industrial opportunities in particular communities. We want to see that opportunity for the devolution of labour market programmes to a sensible, localised level; I doubt whether it would be the whole of Scotland, because labour markets differ significantly within Scotland. There are considerable differences between the highlands and the central belt conurbations, for example.

[Mike Weir (Angus) (SNP)]

I am listening carefully to what the hon. Lady is saying, but does she not recognise the difficulties for an area such as my own, where unemployment is low but so are wages, and in which there are fairly prosperous parts as well as parts that are not prosperous? It is difficult to say that a local authority area is suitable for devolving responsibility down to.

[Kate Green]

I readily accept that a local authority area may be too small. What is important is to get the geography right, and the whole of Scotland might not be right. We want the opportunity to explore the right geography for devolution rather than assuming that centralising responsibility in Holyrood will necessarily be the best way of meeting the needs of labour markets across Scotland.

It is also important to recognise that devolving programmes only if they will last longer than a year misses the point for a lot of people who suffer poor employment outcomes. Our amendment 113 specifically addresses that point. Contrary to popular prejudice, it is extremely rare for people never to have worked. People who experience poor labour market outcomes have mostly been in and out of poor-quality, poorly paid work for many decades. That has often been true of many generations of their family. If we devolve the opportunity to develop labour market programmes to the Scottish Parliament at an earlier stage, we can break that cycle not of worklessness but of moving in and out of poor-quality work. Interventions could be developed that would enable people to sustain work and progress in it, which the Work programme has not succeeded in doing.

[Neil Gray]

Is it not better for people to find the right job for them than to find just any job?

[Kate Green]

There is certainly good and long-standing evidence, for example from the United States, that if more time is invested in equipping people with the skills and qualifications they need to move into better jobs with better pay, they are more likely to get into sustainable employment that means they will escape poverty. A shocking characteristic of our labour economy is that people often move into work but do not escape poverty, thereby contributing to the very high levels of in-work poverty in this country today.

17:30

We would like earlier intervention and the opportunity to devolve programmes over a shorter period than 12 months. Amendment 10 would offer a replication of the successful future jobs fund that Labour introduced in the wake of the financial crash. The DWP’s own evaluation showed that fund to have been extremely effective, not just in rescuing people at that time of crisis when unemployment rose sharply, but because the long-term employment outcomes of those who went through that programme are significantly better than for those who were not offered that opportunity. The amendment offers the chance for the devolution and development of programmes such as the future jobs fund that the Scottish Parliament may be interested in developing.

I echo the comments of the hon. Member for Livingston (Hannah Bardell) on the Access to Work programme. It is integral to the labour market chances of disabled people that they have the financial support afforded by that programme to enable any adjustments that may be necessary to allow them to participate in the workplace. That spans all levels of employment from entry-level to extremely senior jobs, and it is important that the Scottish Parliament has the opportunity to make the most of that fund.

[Chris Stephens (Glasgow South West) (SNP)]

I was a Unison activist and I found that the Access to Work programme not only helps people get into work, but helps existing employees who develop a visual impairment, for example, to continue in employment. It is a device that helps people to stay in work, not just get into work.

[Kate Green]

The hon. Gentleman is right. The Access to Work programme is a device to help people enter, stay in and progress in work, and it supports very senior people in highly qualified positions. It would be regrettable if changes to the programme were to put that at risk.

There could be real advantage to devolving Access to Work or similar programmes because the decision-making and administration processes might be swifter and more attuned to the needs of the local labour market and workforce with that level of devolution. Given the problems that we know are being experienced with the national programme—which appears quite inflexible in the way it deals with people—perhaps the measure could be devolved as part of this package.

[Ian Murray]

Perhaps I should sit down and allow my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) to guess what might be in my speech—he could also give us Saturday’s lottery numbers while he is at it.

[Andrew Gwynne]

I’m not that good.

[Ian Murray]

He might not be that good. If he had won the lottery he would not be wearing that suit—I can be nasty to my own side, as well as to the SNP.

Clauses 26 to 30 are largely concerned with minor and technical changes to existing legislation. Amendment 113 would allow the provision of employment programmes where assistance is for less than one year. The reasoning behind that does not require much explanation, other than to point out that many people move jobs several times a year, especially in the current highly fluid labour market in which there is a dearth of long-term secure employment. Indeed, the labour market seems short-term and insecure with poorly paid work. Many people in part-time jobs are looking for full-time work, and many people are on zero-hours contracts.

The Smith agreement states that the Scottish Parliament

“will have all powers over support for unemployed people through the employment programmes currently contracted to DWP”.

However, clause 26 currently restricts the powers devolved to employment support programmes that last at least a year. Amendment 113 would remove that restriction to allow the development of programmes to support those who move in and out of work within one year.

Amendment 9 emphasises that employment support programmes in Scotland must be developed in close conjunction with local authorities. That will ensure that service delivery is tailored to the needs and circumstances of local communities and is responsive to the local jobs market. In that regard, we are happy to support amendments 120, 121 and 122, which provide for the creation of new employment programmes in Scotland, on the understanding that they are developed and run in close conjunction with local authorities.

[Mike Weir]

Will the hon. Gentleman expand on the position of local authorities? I made the point to the hon. Member for Stretford and Urmston (Kate Green) about the nature of many local authorities in Scotland, which would make it slightly more difficult to devolve the issue to local authority level than in certain other areas.

[Ian Murray]

I agree to a certain extent. In the area the hon. Gentleman represents, many of the local authorities are either incredibly small in population terms or incredibly large in geographical terms, and that would have its challenges. But many local authorities work together on many aspects of Scottish local government life. For example, Edinburgh works closely with Midlothian, a local authority that is smaller than my constituency. East Lothian, West Lothian and Fife also tend to work together on many issues. While we would like to see double devolution to local authorities, it does not necessarily mean to one individual authority. Many authorities would probably work together to try to make the best use of work programmes and job opportunities.

[Andrew Gwynne]

Will my hon. Friend give way?

[Ian Murray]

I will give way to my hon. Friend, who will probably tell me what I am about to say.

[Andrew Gwynne]

I can tell him that the bonus ball will be 32.

The issue of local authorities is important. Of course, the Manchester example is not one single local authority: it is a combined authority of 10 metropolitan borough councils. It would also be possible in Scotland and other parts of the UK for local authorities to come together to bid for the work programmes.

[Ian Murray]

I hope the bonus ball this week is not 32, otherwise we will be in trouble.

My hon. Friend is right: it is about local authorities working together. There is nothing wrong with saying that the Scottish Parliament has been a centralist Government—that is what happened as a result of the policies that were pursued. That is a legitimate choice for a Government to make. All we are suggesting is that perhaps some of the work programmes that would be best delivered by local authorities are sent to them. I know that my own local authority, Edinburgh, runs several highly successful programmes, such as the JET programme for young people and other programmes to get disabled people and others into work, and we should trust them to do that.

[Dr Eilidh Whiteford]

Does the hon. Gentleman agree that the Opportunities for All programme, which was mentioned earlier, is a good example of a policy area in which the Scottish Government are working closely with local authorities to deliver services and opportunities for young people? Similarly, the Scottish welfare fund is another good example of a scheme administered and delivered by local authorities. When the hon. Gentleman talks about a centralist Government, he needs to remember that 90% of ring-fenced funding has been devolved to local authorities by the Scottish Government. He might want to take a look at Wales, where the Labour Government seem to want to abolish local authorities all together.

[Ian Murray]

I did not want to turn this into a political argument: I merely wanted to point out that work programmes are best delivered by local authorities. If the Welsh Government have made the decision that they are best delivered in a different way, it is up to them. The hon. Lady highlights, however, that devolution across the UK provides an array of ways to deliver services, and I hope that the Scottish Government take note of this debate and consider whether we should have double devolution. The principle of subsidiarity across the European Union and the UK, which my hon. Friend the Member for Nottingham North (Mr Allen) promoted in his new clause, should sit happily and firmly with the Scottish Government and their relationship with local government.

Local government and the Convention of Scottish Local Authorities have said clearly that local authorities across Scotland feel that they have been strangled, and we need to address that important point.

[Mike Weir]

I am not trying to be difficult, but it seems to me that the hon. Gentleman’s amendment would provide that the Scottish Parliament “must” devolve the power to local authorities. It would not always be appropriate for a local authority—or even a group of local authorities—to have that power. If he wants to pursue devolution of such powers, more flexibility would be needed, and the amendment is flawed in that regard.

[Ian Murray]

In all the time I have known him, the hon. Gentleman has never been difficult. We are debating a Bill that we feel does not go far enough in spirit or substance. We want the Scottish Parliament to have more power. The hon. Gentleman, the Scottish National party Chief Whip, wants to hold on to that power with both hands. He does not want to release any of it but wants to keep it in Edinburgh and Holyrood, so he can build an ivory tower for Scotland. He does not want to give it to local authorities.

[Mike Weir]

rose—

[Ian Murray]

I am delighted that I have been able to give the hon. Gentleman a little exercise by making him bounce up and down.

[Mike Weir]

The hon. Gentleman and I have crossed swords on many Bills. He is misrepresenting what I said—not deliberately, I am sure. As I read it, if the amendment is agreed to, that would mean an obligation to devolve to each individual local authority. That is not what he is saying now about a conglomeration of local authorities. The amendment is flawed; the idea behind it is not so flawed, but the way it is written is.

[Ian Murray]

We are in trouble: I cannot even persuade the people who agree with the broad principle, and I am trying to persuade the Government to accept the amendment. It may be badly drafted, but the hon. Gentleman knows how this place works. We table our amendments in Committee to press the Government to do something about a particular piece of legislation, and the Government ultimately reject them. Of the 87 amendments that I tabled to the Enterprise and Regulatory Reform Bill, 87 were rejected, although I was delighted that four or five came back as the Government’s own ideas on Report. That is essentially what will happen. The Secretary of State said he would go away and reflect, and I am sure he will do just that—go away and reflect on the amendments he may be able to claim as his own, and those he will ultimately reject on Report.

I have a lot of time for the hon. Member for Angus (Mike Weir). I put on the record that we agreed on most things when we crossed swords in other Committees, particularly with regard to the privatisation of Royal Mail and the Postal Services Bill. We do not always disagree.

The broad principle of double devolution—transferring powers from Holyrood to local communities—is one we should all support to ensure that we have powerhouse local authorities in Scotland and to place power closer to the people we seek to represent. It is a fairly obvious thing to say, but local authorities know their local jobs markets better than anyone else. The landscape of a jobs market in one local authority, or one conglomerate of local authorities, will be very different from others.

We should be looking to tailor employment support programmes not just to individual needs and individual community needs, but to areas where there will be a greater need for a certain skill set than in other areas. For example, my city is at the forefront of financial services and academia. Rural constituencies will be completely different. Local authorities would be able to tailor those programmes. Crucially, something we tend not to talk about in this House is not just transferring power but transferring the resources that go with it. Local authorities in Scotland are being completely starved of the resources they require to do the job we want them to do.

The hon. Member for Livingston (Hannah Bardell) made a great speech. She said many things we would absolutely agree with. One glaring omission, however, was anything on retraining, education, further education and reskilling. Further education is not just the mechanism for young people to go back into education, or to be retrained or reskilled; it is the place where many people get a second chance. They are able to go back to something they perhaps failed at many years ago, or to retrain after having a family. Scotland is suffering from having 144,000 fewer college places than we did in 2007. That is hampering those second chances.

If the devolution of the Work programme does end up at the Scottish Parliament, I hope it ultimately ends up with local authorities.

[Mike Weir]

indicated dissent.

[Ian Murray]

The hon. Gentleman is shaking his head, so it must be true. We would then be able to resolve the issue of the college places that have been lost.

Amendment 114 would provide for the devolution of the Access to Work scheme to the Scottish Parliament. Access to Work provides practical advice and support to disabled people, and their employers, to help them to overcome work-related obstacles resulting from disability. It is an incredibly powerful and important programme. A close friend of mine, Mark Cooper, who has cerebral palsy, has been on it for some time. He took a job that covered maternity leave in Glasgow, 45 miles away, and was able to work with the employer and the programme to travel to Glasgow and secure an adapted workplace.

17:45

None the less, Mark drifts in and out of employment because of his disability. The obstacles facing people with disabilities have to be overcome, and the devolution of the programme to local authorities would certainly allow it to be better tailored to local needs. Access to work is closely aligned with employment support, and several charities, including Inclusion Scotland and the Wise Group, are in favour of its devolution to Scotland.

Finally, amendment 10 would allow for the introduction of a jobs guarantee providing a temporary job paying at least the minimum wage to provide a route back into employment for young people or people who have been out of work for more than two years. It is similar to the jobs guarantee in our manifesto at the general election, and would allow us to devolve some of the responsibilities for getting young people back into long-term employment. Again, local authorities would be best placed to deliver that, despite the fact that the hon. Member for Angus thinks it a bad idea.

I hope the Government will reflect on some of these issues, as the Secretary of State said he would do, and, if they disagree to them today, come back on Report not just with the proper devolution of employment, disability and access to work schemes to the Scottish Parliament but with mechanisms to get them out of the hands of Edinburgh and into those of local authorities.

[Priti Patel]

I begin by commending the contributions not just on this group but throughout the day. It has been said that the Government are not doing what the Smith commission said we should. We are clear that the commission recommended that the UK Government devolve all powers specifically in relation to contracted employment programmes, but the amendments go well beyond that remit and would include the powers to operate support through Jobcentre Plus.

Beyond that, there are key reasons why the amendments do not work. First, there would be no clear demarcation of responsibilities between the Scottish and UK Governments around the provision of employment support. The UK Government would retain the Executive competence under existing legislation and could continue to operate employment programmes and Jobcentre Plus. This would create a confusing, disjointed and misaligned landscape of support that could hinder employment support as much as it helps move people back to work.

Clause 26 manages that risk by creating clear lines of accountability between those claimants for whom Scottish Ministers can create employment programmes and those who will continue to be supported through the Jobcentre Plus structure. In particular, it makes it clear that the Scottish Parliament can only provide employment support for claimants at risk of long-term unemployment where the assistance lasts at least a year and for disabled claimants likely to need greater support. It thereby draws a line between such schemes and the core functions of Jobcentre Plus, enabling a smooth delivery of an integrated welfare and benefits system and, importantly, resulting in a better service for claimants.

In the debate around the devolution of contracted employment programmes, there have been extensive discussions through the joint ministerial working group on welfare, which has played a key role in ensuring a seamless transfer of responsibility. As my right hon. Friend the Secretary of State said, these are ongoing discussions, and, importantly, officials are working to set up the right framework and ways of working. On the Work programme, our officials have had many meetings with Scottish Government officials on a range of aspects relating to the delivery of contracted employment support programmes. That engagement is good. It is concerned with how we can work together to develop integrated local support and the issue of Skills Development Scotland in jobcentres, which of course is going strong today.

I would like to touch on some of the other points raised in this debate. The hon. Member for Livingston (Hannah Bardell) spoke about the current system for employment. The Government are delivering on the current system for welfare reform and it is working in Scotland, too, as demonstrated by record levels of men and women in employment. Importantly, they are providing more support for getting lone parents back to work. In Scotland, benefits reform has seen 2 million people back in work and employment continuing to rise. That is to be commended and supported. For our ongoing discussions at official and ministerial level, it is at the heart of what we are trying to achieve.

Amendment 113 applies to the matters that clause 26 will except from reservation for job search and support. Clause 26 delivers on the Smith commission agreement to give the Scottish Parliament the legislative competence to establish employment programmes that support disabled people and that offer long-term support to benefit claimants at the risk of long-term unemployment. I have no doubt that that is welcomed by all hon. Members. The amendments to clause 26 would have changed the scope of the legislative competence of the Scottish Parliament to allow for the provision of employment programmes for those at risk of long-term unemployment where assistance, as I have said, has been ongoing for less than one year.

We want to ensure that the employment landscape in Scotland is not confusing when it comes to the support structure in Scotland. Importantly, we want to ensure that Jobcentre Plus continues to deliver effectively for claimants, while also giving employers greater continuity in respect of the overall landscape.

I shall speak now to amendments 9, 10 and 114 collectively and show how clause 26 already covers many of the points raised by them. Amendment 9 is designed to add to the illustrative list of the ways in which the power to make arrangements for employer support might be used. Members will be pleased to hear that the list provided in the clause is purely illustrative and that it would be possible for the Scottish Government to work with local authorities and other partners and stakeholders to design and deliver employment programmes. The same applies to amendment 10, which is designed to add to the illustrative forms of the assistance that Scottish Ministers might provide under clause 26.

On the point about the devolution of the Access to Work programme, which is the subject of amendment 114, we have not sought unreasonably to limit the legislative competence of the Scottish Parliament. Non-repayable awards such as those provided through the Access to Work scheme are already covered in clause 26. As such, the Scottish Government can choose to introduce a similar form of support for disabled people additional to that provided by the Access to Work programme, should they wish to do so. Given that Access to Work is an integral element of the support we offer, let me be clear that this Government intend to continue the Access to Work provision in Scotland and will retain the associated funding.

I hope that my response has assured hon. Members that clause 26 fully enables the Scottish Parliament to make the provisions covered in amendments 9, 10 and 114 and has set out a clear rationale as to why the Access to Work programme will remain a reserved programme.

[Hannah Bardell]

We have had a fascinating debate, and it has been a pleasure to participate in it. It seems to me that there is much agreement across the Benches on this side of the House. The hon. Member for Stretford and Urmston (Kate Green) made some important points about tailoring work programmes in de-industrialised areas, and I certainly agree with much of what she said about West Lothian. Although Livingston is its name, it does not fully take into consideration the many former mining towns in my constituency. I well know the impact of de-industrialisation and the need for tailored work programmes there.

The hon. Member for Edinburgh South (Ian Murray) touched on the future jobs fund, and I would certainly be interested in looking further at how we can work together on that. The hon. Member for Stretford and Urmston highlighted the importance she placed on it, and made it clear that she saw the importance of devolution.

My hon. Friend the Member for Glasgow South West (Chris Stephens) spoke about his experience as a Unison representative, the importance of access to work for those with disabilities and how those who were already in work could be helped to find further employment if they developed a disability. My hon. Friend the Member for Banff and Buchan (Dr Whiteford) spoke passionately—as she has throughout the debate—about Opportunities for All. That initiative has been a huge success in Scotland, and it is a very good example of how local authorities can work closely with the Government. I think that my hon. Friend the Member for Angus (Mike Weir) and I are still stuck on the point made by the hon. Member for Edinburgh South about the detail of the devolution of those powers to local authorities, given that, as was pointed out by my hon. Friend the Member for Banff and Buchan, 90% of ring-fencing has been abolished.

The hon. Member for Edinburgh South also referred to college funding. He may have missed my comments about the increase in the number of modern apprenticeships, and the investment that has been made by the SNP Government. We are clearly investing more in colleges than Labour ever did. College resource budgets increased to £526 million in 2015-16, which is well above Labour’s highest level of £510 million in 2006-07, in cash terms. The number of full-time students aged under 25 has increased by more than 15%, and the number of those aged over 25 has also risen.

The Minister talked a great deal about Access to Work, and why it should not be devolved. She spoke of the success of the current system, and said that it might become disjointed if further powers were devolved. We would argue that there is already a significantly disjointed approach, given the number of problems caused by benefit sanctions. I know that many of our constituents come to our surgeries, and walk through the doors of our constituency offices, with harrowing and desperate stories about sanctions, and citizens advice bureaux have informed us of a number of such cases.

A CAB in the south of Scotland reported that a client had been sanctioned for the second time for failing to log into Universal Jobmatch. The client’s local library had been closed for refurbishment, and there was no other access to public computers in the local area. The sanction was upheld following a mandatory reconsideration request, and the client produced a letter from his doctor stating that his mental health had declined as a direct result. He was also building up council tax debts, and his home telephone had been disconnected.

We must remember that we are not just debating statistics today; we are debating real people’s lives, and real situations. We are talking about people left in desperate circumstances as a result of benefit sanctions. If we do not change the system, people in Scotland and throughout the United Kingdom will continue to suffer.

Question put, That the amendment be made.

17:58

Division 33

Ayes: 260

---

Labour: 199
Scottish National Party: 53
Liberal Democrat: 5
Social Democratic & Labour Party: 3
Plaid Cymru: 2

Noes: 316

---

Conservative: 311
Democratic Unionist Party: 2
Independent: 1
Ulster Unionist Party: 1

Clauses 26 to 30 ordered to stand part of the Bill.

New Clause 28

Housing Benefit

“In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 8 (see section 23 above) insert—

“Exception 9

Housing benefit.”” —(Ian Murray.)

This New Clause provides for the full devolution of Housing Benefit, allowing Scottish Ministers to abolish the Spare Room Subsidy in Scotland, and to provide £1.8 billion of investment in housing in Scotland.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

18:12

Division 34

Ayes: 259

---

Labour: 197
Scottish National Party: 55
Liberal Democrat: 4
Social Democratic & Labour Party: 3
Plaid Cymru: 2

Noes: 317

---

Conservative: 312
Democratic Unionist Party: 2
Independent: 1
Ulster Unionist Party: 1

New Clause 31

New Benefits

In Section F1 of Part 2 of Schedule 5 to the Scotland Act 1998, in the Exceptions, after exception 8 (see section 23 above) insert—

“Exception 9

A benefit not in existence at the relevant date provided entitlement to or the purpose of the benefit is different from entitlement to or the purpose of any benefit that is—

(a) in existence at the relevant date,

(b) payable by or on behalf of a Minister of the Crown, and

(c) otherwise a reserved benefit.

For the purpose of this exception—

“the relevant date” means the date of introduction into Parliament of the Bill that becomes the Scotland Act 2015;

“reserved benefit” means a benefit which is to any extent a reserved matter.”—(Ian Murray.)

This New Clause broadens the circumstances under which the Scottish Parliament can create new benefits, as recommended by the Smith Commission.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

18:25

Division 35

Ayes: 258

---

Labour: 197
Scottish National Party: 55
Liberal Democrat: 3
Social Democratic & Labour Party: 3
Plaid Cymru: 2

Noes: 317

---

Conservative: 312
Democratic Unionist Party: 2
Independent: 1
Ulster Unionist Party: 1

New Clause 39

National Insurance

‘(1) Section F1 of Schedule 5 to the Scotland Act 1998 is amended as follows.

(2) In the illustrations, omit “National Insurance;”

(3) In the exceptions, at the beginning insert—

“National Insurance.”.’—(Dr Eilidh Whiteford.)

This new clause would devolve National Insurance to the Scottish Parliament.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

18:39

Division 36

Ayes: 58

---

Scottish National Party: 55
Social Democratic & Labour Party: 3

Noes: 515

---

Conservative: 308
Labour: 196
Liberal Democrat: 3
Democratic Unionist Party: 2
Independent: 1
Ulster Unionist Party: 1

To report progress and ask leave to sit again.—(Stephen Barclay.)

The Deputy Speaker resumed the Chair.

Progress reported; Committee to sit again tomorrow.

[Ian Murray]

On a point of order, Mr Deputy Speaker. I do not normally make points of order, but I wonder whether you can confirm that we have just voted on new clause 39, on the fundamental principle of the devolution of national insurance, without having had any debate on it.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

As the hon. Gentleman well knows, that is not a point of order. I know he would not question the Chair as the decision was taken earlier.

City Deal Funding (Aberdeen)

Tuesday 30th June 2015 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Stephen Barclay.)

18:57

[Kirsty Blackman (Aberdeen North) (SNP)]

I very much appreciate the opportunity of an Adjournment debate on the Aberdeen city region deal. The coalition Government announced in the Budget earlier this year that they would enter negotiations with Aberdeen city and shire on a possible city region deal for the area. I appreciate the Minister’s presence to reply to the debate and I am grateful that my hon. Friend the Member for Aberdeen South (Callum McCaig) and I will have a little longer to address the issue.

Since the 1970s, Aberdeen has been one of the major economic powerhouses of the UK.  Our local city and shire economies created 42,200 jobs between 2000 and 2012, a rate of growth double the Scottish average. Aberdeen is ranked fourth among 64 cities in terms of the number of patents per head of population. In 2011-12, the oil and gas industry paid 16.4% of all corporation tax collected in the UK.

Although the oil industry has made a significant contribution to the economy of these islands, many in our city feel that deserved improvements have passed us by. The Government’s “UK Oil and Gas” industrial strategy, published in 2013, summed up the situation. It stated:

“While the strengths of the sector are UK wide, Aberdeen has established itself as a global hub for oil and gas expertise.  This has happened in spite of, not because of its infrastructure.  From a small airport through to traffic congestion and limited housing stock, Aberdeen has struggled to keep up with the demands of the oil and gas sector.”

Major infrastructure projects, which have been in the pipeline since the 1940s, are only just beginning to come through for my residents. The Haudagain roundabout improvement scheme, the western peripheral route and the third Don crossing have been long-awaited by people throughout Aberdeen, but it is only now that these are progressing.

19:00

Motion lapsed (Standing Order No. 9(3)).

Motion made, and Question proposed, That this House do now adjourn.—(Kris Hopkins.)

[Kirsty Blackman]

rose—

[Stuart Donaldson (West Aberdeenshire and Kincardine) (SNP)]

Does my hon. Friend agree that it is great to see the councils of both Aberdeenshire and Aberdeen city working together to secure this deal, which will benefit both the people in my constituency and hers?

[Kirsty Blackman]

I will come on to the point my hon. Friend raises in a few moments.

Our city’s transport connectivity is regularly flagged up as concerning. There is a heavy reliance on cars and high vehicle ownership, as the infrastructure and connectivity are sadly lacking at the moment. The city deal proposal highlights an opportunity for change to be made. Increasing the transport links will allow public transport in the city to become more fit for purpose and to encourage a reduction in car use. Aberdeen’s Union Street has degenerated over the years, as private companies have bought up properties and shirked their responsibilities in terms of maintenance and upkeep. I hope and believe that the city deal and the level of collaboration between organisations can ensure that agreement is forged on a way forward for our city centre. We want the local population to be drawn into the centre, to share experiences in a pleasant, welcoming environment, and to feel proud to live and work in our beautiful city.

Increasing the ability of companies to attract talent to our region will increase our economic output. I am so pleased that Aberdeen City Council, Aberdeenshire Council, Robert Gordon University, Aberdeen University, the local business community, the Scottish Government and the UK Government are working together to progress this proposal.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

I had the pleasure of working with Aberdeen as part of the Scottish Cities Alliance. Many of the organisations my hon. Friend mentions have been critical in pulling together the project for Aberdeen. As a representative of the other most northerly city in Scotland, Inverness, the links between Inverness and Aberdeen are very clear. The generation of employment and our ability to retain and encourage young people into new careers are vital. That work together was best demonstrated in the work of the Highland Council at the advanced stage, before the election was called, with the Scottish Government, the Scottish Cities Alliance, the universities and other groups involved in pulling together the campus and sports hub for young people. Does my hon. Friend agree—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I am trying to be as generous as I can. They are interventions, not speeches. My quick advice would be: if you have a long intervention, do it in two stages.

[Kirsty Blackman]

I agree with my hon. Friend. Although there are local issues, both Aberdeen and Inverness have the same concerns regarding the current lack of connectivity with the rest of the country. Anything that improves our access to the rest of the UK will improve economic opportunities for those living in our city regions.

[Drew Hendry]

Thank you for your advice, Mr Deputy Speaker. Does my hon. Friend agree that this is an opportunity for the UK Government to demonstrate a commitment to the cities and regions in our area, which is the most northerly part of Scotland and the UK?

[Kirsty Blackman]

Absolutely. That is very important. As I said, there has been a level of concern from some of our residents that we are a bit forgotten about, because we are so far away. We need to work to change that.

The city deal for Aberdeen is a truly excellent example of joint working, not just between the two Governments, where relations have occasionally been strained, but between the two councils, where this level of joint working simply has not been seen before.

One of the most difficult problems for those living in Aberdeen city and shire is the cost of housing. There is a lack of affordable accommodation, and our councils and NHS are finding it difficult to keep key workers. In recent years, we have struggled to recruit and retain teachers, social workers and nurses. With high land values in Aberdeen, it is really difficult for social landlords to fund the building of new social housing. For years, the city’s social housing stock has been reducing, and there are thousands of families on the council’s housing waiting list. Despite some recent new builds, many are still stranded in inappropriate accommodation or forced to consider moving to other parts of the region or country.

The city deal proposal includes a £350 million ring-fenced loan guarantee facility from Infrastructure UK for housing in Aberdeen city and Aberdeenshire. It also proposes a significant increase in the number of homes available for lease from both councils. As I mentioned in my maiden speech, the lack of suitable affordable housing is a huge problem for my constituents, and the issue is exacerbated by the success of the oil and gas sector. I really cannot overstress the importance of this issue to people living in Aberdeen.

[Alex Salmond (Gordon) (SNP)]

My hon. Friend makes a crucial point about social housing in Aberdeen, but does she also accept that the investment in the Inverness-Aberdeen railway line will make realistic commuting possibilities available to a range of people across the community? Does she agree about the importance of that investment and our working together to maximise the opportunity?

[Kirsty Blackman]

I absolutely agree with my right hon. Friend. The infrastructure system in London is so far away from our system. We do not have two railway lines beside each other, meaning that trains can only pass at certain points.

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

You’ve got trains?

[Kirsty Blackman]

Yes, we do have trains, unlike in some parts of northern Scotland. We are very lucky. The upgrades to the line, however, will make a significant difference to commuters. A huge number of people commute already, particularly from regions in the north-east, and if we can improve the railway line, particularly by dualling it in places so that more trains can pass, that will only improve our connectivity.

We need to ensure that our population continues to live and work successfully in the area. In Aberdeen, we have low unemployment, at just 2.3%, but 25% of our working age population earn under £15,000 a year. Large salaries are pushing up the cost of land and the price of housing, however, so we need to ensure that those on lower wages have access to affordable or social housing, both of which have been sadly lacking in Aberdeen throughout the past 20 years. Lower housing costs increase people’s and families’ disposable incomes, which boosts the local economy by increasing spending.

In order to sustain the oil and gas industry and unlock future opportunities, we must act now to ensure that Aberdeen continues to be a competitive region and a global centre of excellence. With the challenges of a mature field and a low oil price, we need to get very good very quickly at performing in this new environment. Aberdeen and Aberdeenshire need to become world leaders at things such as decommissioning—we have the talent and skills locally and the ability to export those skills as other fields across the world reach the end of production. We have the export infrastructure—we are very good at it and we do it a lot—but we need to be doing the same for things such as decommissioning. We can be world leaders in this. We also have a huge pool of talented engineers, scientists and industry experts in technology, which means that Aberdeen is uniquely placed to take the lead for the UK in renewable technologies as well.

I look forward to hearing the Minister’s views on the Aberdeen city region deal. I am keen to hear whether he can provide us with more information on the timeline going forward. This is a long overdue and positive initiative for our wonderful city.

19:08

[Callum McCaig (Aberdeen South) (SNP)]

I thank my hon. Friend the Member for Aberdeen North (Kirsty Blackman) for securing this debate and echo her words of gratitude to the Minister for generously allowing me to contribute.

This is a hugely important matter for Aberdeen and north-east Scotland. Following the collapse in the oil price, Aberdeen City Council hosted a summit of key industry and Government figures attended by local government, the Scottish Government and the UK Government. At that conference, Malcolm Webb, the former chief executive of Oil and Gas UK, said:

“Currently I am afraid Aberdeen is part of the cost and efficiency problem whereas, with the right investment in its infrastructure, it can be an important part of the solution.”

The oil and gas industry clearly has a job of work to do to reduce its own cost base, but when someone so key in the industry suggests that the very infrastructure and nature of the city and region that host that infrastructure, are part of the blockage and cost difficulty, everyone with a vested interest in seeing Aberdeen flourish—this Chamber as a whole—needs to listen.

[Dr Eilidh Whiteford]

My hon. Friend is making an important point about infrastructure. Nowhere are the infrastructure challenges more acute than in the very north of Aberdeenshire, particularly in the parts that I represent. The city deal offers great opportunities for the city and the shire, but I am concerned to ensure that the rest of Aberdeenshire that will not be affected by the city deals does not fall further behind. Will my hon. Friend agree to make sure that that does not happen as we go forward?

[Callum McCaig]

I welcome that intervention. It may not have been heard by those in the Chamber, but while my hon. Friend the Member for Aberdeen North was talking my hon. Friend the Member for Banff and Buchan (Dr Whiteford) pointed out that her constituency is perhaps unique for a mainland constituency in not having a single mile of railtrack. That is quite remarkable, and I know that Aberdeenshire City Council is working in partnership with Nestrans on this issue for the future. It is something that could be developed through this process.

Councillor Jenny Laing, a Labour member and leader of Aberdeen City Council said:

“The proposals we have outlined will ensure the prosperity of our city and NE Scotland for decades to come by anchoring an economy of global significance for the benefit of the UK as a whole.”

This has the backing of Labour party in Aberdeen, and indeed of all parties in Aberdeen, and I think it has unanimous support in Aberdeenshire as well. This is a cross-party issue, although as a result of the success of the Scottish National party, only SNP Members from the north-east of Scotland are here to back it. If other parties were present, I am sure they would be adding to the calls for this, such is the importance of it to our region.

The oil and gas industry is critical to Aberdeen and the north-east of Scotland, but Aberdeen and our region is far more than oil and gas. There are proposals, subject to legal challenge by a certain presidential candidate, for a wind farm in Aberdeen bay to test the new and innovative technologies in offshore wind. I hope that that will go ahead, as there are huge benefits to be gained from it.

Aberdeen is also leading the way in the development of hydrogen technology. We now have the largest fleet of hydrogen buses anywhere in Europe, thanks to the support of my right hon. Friend the Member for Gordon (Alex Salmond) and the efforts of the Scottish Government, the European Union and Aberdeen City Council. It is a team effort.

Yes, we are an energy city and an energy region—but we are certainly more than just energy. Life sciences and food and drink are absolutely world class in the corner of the world that we call home. They, too, stand to benefit from significant investment in the infrastructure—physical and digital, and in the housing that my hon. Friend the Member for Aberdeen North talked about—and, above all, in the skills we require from our universities to build the capacity to allow these industries to flourish.

[Stewart McDonald (Glasgow South) (SNP)]

My hon. Friend makes an important point about infrastructure. One concern that I and my Glasgow colleagues have is about the devolution of powers to cities such as Manchester. That is, of course, to be welcomed, but it presents us with significant challenges. Does he agree that one way to help us meet those challenges would be for the Government to say unequivocally that HS2 will come to Scotland?

[Callum McCaig]

Aberdeen stands to lose out to a degree when it comes to HS2, but as part of team Scotland, I would say that there is a requirement to bring it to the central belt of Scotland. If that is to happen, there needs to be protection for Aberdeen— and, I am sure, for Inverness—given the potential for them to lose out. That would come in the form of landing slots and access to hub airports. It will never be economical to put high-speed rail up to the north-east of Scotland or the highlands, but we need connectivity to London and to the wider world through our airports.

Beyond the city deal and the physical infrastructure is the investment in skills and the utilisation of our world-class universities. Aberdeen University is a proud and ancient seat of learning, and Robert Gordon University is equally proud, if slightly younger. The two of them together make an immense contribution. We have some of the brightest and most talented young people from across the globe coming to study in our universities because of the contribution they make and the expertise they have. As I mentioned, it is not just in oil and gas; the bio-science and medical sciences provided in our universities are absolutely leading in terms of world-class research.

There are proposals for university enterprise zones elsewhere in the country. Part of the deal would be to allow that to happen through the combination of Aberdeen University and Robert Gordon University and by bringing business and the universities closer together, giving businesses incentives to invest in the research and development in which our universities can take part. That is an exciting development which will allow our universities to make a far greater contribution to the economy than the significant contribution that they already make.

Throughout my lifetime, Aberdeen has prided itself on being Europe’s oil and gas capital, and that has contributed immensely to the wealth of our city. The investment that it should, perhaps, have attracted in previous decades was absent, but let us be forward-looking. Aberdeen has a great future as an oil and gas city—indeed, as a global energy hub. Renewable energy will play a part, as, I hope, will hydrogen, but, above all, we will remain a key hub for oil and gas.

Much of the work that is done in Aberdeen now has little relevance to the North sea. The city is home to engineers who assess projects from the gulf of Mexico to Brazil, and from the coast of Africa to Kazakhstan and the South China sea. It is truly a global hub. The clusters of expertise, experience and knowledge that exist in our city and our region are absolutely world class. But—and there is a but—there is no guarantee that we will continue in that role. We need investment now, because otherwise we may face the prospect of losing the goose that lays the golden eggs.

Internationalisation is a key element. We need support for our exports, and support to enable our industries to find new markets. Many have done so already, but a huge number of smaller companies that could save huge amounts of money, in terms of oil and gas production, need to be helped to take their innovative products to further markets overseas. Investment in broadband is important in that context. The technology that handles seismic data, or project plans, that are produced from offices in Aberdeen is incredibly data-hungry. Huge band widths are required to allow information of such a size to be communicated to markets throughout the world. That investment will potentially provide far greater work for companies based in Aberdeen and the surrounding region.

The mood music that we hear from both councils, and from the Scottish and United Kingdom Governments, is very welcome. Clearly there is a job to be done, but I hope that convincing the Minister of the importance of the deal will help that work to be achieved. We realise that negotiation between the councils will be necessary at various levels, but it is incumbent on us, as representatives of the area, to press the case. The deal is vital to our region and vital to the economy, and it has the potential to deliver huge dividends not just to our area, but to the United Kingdom as a whole.

19:18

[The Parliamentary Under-Secretary of State for Communities and Local Government (James Wharton)]

I congratulate the hon. Members for Aberdeen North (Kirsty Blackman) and for Aberdeen South (Callum McCaig) on their speeches. I noted the tone of their contributions with great interest. The hon. Member for Aberdeen North said that she sometimes felt that her area had been forgotten by Westminster, and I understand what she means. As a Teesside Member of Parliament, I sometimes felt the same in years gone by, although, thankfully, not under the present Administration.

I am aware of Aberdeen’s valuable role. Durham Tees Valley airport, half of which is in my constituency, has been partly sustained by regular flights to Aberdeen because of the economic links between the hon. Lady’s constituency, that of her hon. Friend the Member for Aberdeen South, and my own. The hon. Lady has sent a message to someone who is receptive to it, if I may put it that way, and I commend her for the tone in which she has done so.

I have always found that, while there are matters on which we disagree across the House—no doubt more will surface as time progresses—there are also areas of commonality. It is in all our interests to enable every part of our economy to achieve its potential. My experience may be limited in comparison with the experience of others—I look at the right hon. Member for Gordon (Alex Salmond) as I make that comment—but so far I have found that a positive approach which, while recognising the challenges faced by our constituencies, trumpets the opportunities that they present, the great things that they do, and the fact that they are wonderful places that we are fortunate to represent in the House, produces the best reaction from those whom we want to persuade that our own particular constituencies deserve investment and support.

The Government’s economic ambition is to create a fairer and more balanced economy by supporting policies that enable it to grow. We recognise the challenges and opportunities that exist within local economies right across the United Kingdom, and we have been clear that a one-size-fits-all solution from Whitehall will not work: every part of our economy needs to fulfil its potential. That is why we are devolving powers to cities, towns and counties, and allowing local people to take control of the economic levers in their areas. That work started in the previous Parliament, in no small part with the city deals.

The Government recognised that, to improve the performance of our cities, new solutions were needed. Through bespoke city deals, we have seen the right of initiation pass from Whitehall to town hall. It is a fundamental shift in the way in which Whitehall works. City deals were originally negotiated back in 2012 with the eight core cities in England, and that has been followed by a further wave of city deals across the UK.

In August 2014, the Government, alongside the Scottish Government and the Glasgow and Clyde valley local authorities, extended that model up to Glasgow and the Clyde valley. That deal is one of the largest ever agreed, and local partners anticipate that it will create 29,000 jobs and lever in more than £3 billion of private sector investment. That is an example of what can be achieved when all levels of Government, business, universities and the voluntary and community sectors work together to promote economic growth.

City deals are an important part of the Government’s approach to improving economic growth locally, but we should also remember that they are only one part of the entire package. The Scotland Bill, which is being discussed at some length in this place, will make the Scottish Parliament one of the most powerful devolved Parliaments in the world. It will increase the financial accountability of the Scottish Parliament through devolution of the rates and bands of income tax, air passenger duty and the assignment of VAT revenues; increase responsibility for welfare policy and delivery in Scotland; increase the scope for scrutiny by the Scottish Government of a whole range of public bodies; and give significant new responsibility for areas such as roads, speed limits, onshore oil and gas extraction and consumer advocacy and advice. The Bill honours the commitment made to Scottish people before the independence referendum to transfer significant new powers to the Scottish Parliament.

[Alex Salmond]

The Minister has said that under the proposals the Scottish Parliament will be one of the most powerful devolved Parliaments in the world, but the Command Paper said that it would be almost as powerful, in financial terms, as a Swiss canton. Would it be possible to aspire to be more powerful than a Swiss canton in financial terms?

[James Wharton]

I have no doubt that the right hon. Gentleman has grand aspirations and that it is possible for him to hold them, but my contention is that what this Government are delivering is very significant indeed and meets the obligations and promises that were made in the referendum campaign.

I have provided the context, but what about the city deals themselves and where we are going? City deals are very important because our cities can be drivers for growth. UK cities account for 74% of our population and 78% of all jobs, and it is in the interests of everyone in the UK that cities are able to achieve their potential. Economic growth itself does not just happen—it happens in specific places.

Ensuring that our cities are globally successful is not going to be easy, but I believe that it can be done through active collaboration between Whitehall, the Scottish Government and local authorities that recognise its value.

[Stewart McDonald]

Last Friday I had a meeting with the Glasgow chamber of commerce. Investment that we would have thought would come to Glasgow is already being picked off by cities such as Manchester, following the promise to deliver more powers to them. That is a great concern to me as a Glasgow MP and to other colleagues. The chamber of commerce believes that we could meet that challenge if we got a solid commitment that High Speed 2 will come to Scotland and perhaps even start there. Will the Minister at least endeavour to look at that in more detail? I appreciate—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Perhaps I can help, because I am frightened that we are going away from Aberdeen. Of course, I am very interested in Manchester myself, but this debate is not about High Speed 2 to Glasgow. I can see the connectivity, but we need to keep the Minister on subject of the debate, which is funding for Aberdeen.

[James Wharton]

Thank you, Mr Deputy Speaker. The hon. Gentleman’s comments have been heard loud and clear. They will be recorded as part of the debate and no doubt properly taken into account. I appreciate that he intends to be a consistent advocate on this matter, and I suspect that this is an issue that we will discuss again.

I very much agree with the hon. Members for Aberdeen North and for Aberdeen South on the important role that Aberdeen plays in supporting the UK economy. We are determined to make the most of that, which is why the Chancellor announced in the Budget in March that we would begin negotiations with both Aberdeen and Aberdeenshire on a potential city deal. Those conversations are ongoing and my officials are continuing to have a constructive dialogue on the potential deal with officials from the two local authorities and with the Scottish Government. As I have set out, a key feature of any potential city deal is that it should be bottom up. This is about places putting forward proposals that will drive their economy forward and about recognising that different places need different things.

[Kirsty Blackman]

Does the Minister agree that this is a really good opportunity for joint working, and does he have any more information on the timeline for any agreements and for when the negotiations will reach a conclusion?

[James Wharton]

The hon. Lady’s intervention brings me neatly to my next point, in which I want to spell out clearly that each agreement must be a genuine deal, with offers and asks on both sides, and that the onus remains on Aberdeen and its partners to develop a credible proposal. This is something that we want to see delivered, but there is a process that needs to be gone through in order to deliver it, to ensure that any deal is robust, that it offers value for money for taxpayers and local people and that it delivers what it is supposed to for the people and the economy of Aberdeen. I am happy to confirm that my colleague, the Under-Secretary of State for Scotland, will be happy to meet the hon. Lady and her colleague to discuss this matter further, and I look forward to my officials working with those on the ground who want to deliver this city deal, so that we can all benefit from its ultimate success.

Question put and agreed to.

19:26

House adjourned.

Education and Adoption Bill (First sitting)

Tuesday 30th June 2015 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Mr Christopher Chope, Sir Alan Meale

† Berry, James (Kingston and Surbiton) (Con)

† Brennan, Kevin (Cardiff West) (Lab)

† Donelan, Michelle (Chippenham) (Con)

† Drummond, Mrs Flick (Portsmouth South) (Con)

† Esterson, Bill (Sefton Central) (Lab)

† Fernandes, Suella (Fareham) (Con)

† Gibb, Mr Nick (Minister for Schools)

† Haigh, Louise (Sheffield, Heeley) (Lab)

† James, Margot (Stourbridge) (Con)

† Jones, Graham (Hyndburn) (Lab)

† Kyle, Peter (Hove) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Nokes, Caroline (Romsey and Southampton North) (Con)

† Pugh, John (Southport) (LD)

† Timpson, Edward (Minister for Children and Families)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

† Trevelyan, Mrs Anne-Marie (Berwick-upon-Tweed) (Con)

† Walker, Mr Robin (Worcester) (Con)

Wilson, Sammy (East Antrim) (DUP)

Fergus Reid, Glenn McKee, Committee Clerks

† attended the Committee

Witnesses

Dr Rebecca Allen, Director, Education Datalab (on leave from post as Reader in Economics of Education at UCL Institute of Education)

Professor Becky Francis, King’s College London

Robert Hill, Visiting Senior Research Fellow, King’s College London

Malcolm Trobe, Deputy General Secretary, Association of School and College Leaders

Sir Daniel Moynihan, Chief Executive, Harris Federation

Councillor Richard Watts, Children and Young People’s Board, Local Government Association

Emma Knights, Chief Executive, National Governors’ Association

Dr Tim Coulson, Regional Schools Commissioner, East of England and North-East London

Zoe Carr, Chief Executive, WISE Academies, and elected member of the Headteacher Board for the North of England

Lee Elliot Major, Trustee of the Education Endowment Federation and Chief Exeutive of its sister agency The Sutton Trust.

Public Bill Committee

Tuesday 30 June 2015

[Mr Christopher Chope in the Chair]

Education and Adoption Bill

08:55

The Chair: Order. I apologise to Members for the fact that we do not have enough seats. It is not just that people underestimated Members’ enthusiasm for attending at the beginning of a new Parliament. I will suspend the sitting until that has been sorted out.

08:55

Sitting suspended.

09:23

On resuming—

[The Chair]

Order. Before we begin, I have a few preliminary announcements. First, please silence electronic devices. I remind everyone that tea and coffee are not allowed during sittings. I also apologise for the late start. In view of the time available, I will not make any more announcements.

Motion made, and Question proposed,

That—

(1) the Committee shall (in addition to its first meeting at 8.55 am on Tuesday 30 June meet—

(a) at 2.00 pm on Tuesday 30 June;

(b) at 11.30 am and 2.00 pm on Thursday 2 July;

(c) at 9.25 am and 2.00 pm on Tuesday 7 July;

(d) at 11.30 am and 2.00 pm on Thursday 9 July;

(e) at 9.25 am and 2.00 pm on Tuesday 14 July;

(2) the Committee shall hear oral evidence in accordance with the following table:

[The Minister for Schools (Mr Nick Gibb)]

I beg to move a manuscript amendment, in the table, delete “9.40 am” and insert “9.50 am”.

We will move clause 1 later in our deliberations to enable Committee members to table amendments regarding the definition of a coasting school. Draft regulations were sent to all Committee members last night at 10 pm and are available in hard copy this morning. That should give all Members sufficient time to look at the regulations and table amendments to clause 1, should they wish to do so.

[Kevin Brennan (Cardiff West) (Lab)]

May I put on the record—although not at great length, given the delay already this morning—the concern I expressed informally at the Programming Sub-Committee about the manner in which the programming for the Bill has been handled? The Bill has been put together in a rushed way, and the draft regulations were not thought through and ready in time. We received them only at 10 pm last night, which is why the Government are taking clause 13 first, then clauses 2 to 12, then clause 1 later on. It is emblematic of the fact that the Bill is an undercooked piece of legislation that should have been more carefully thought through before being brought to us for consideration. However, the Government get their way on these matters. I have had my say, and we should get on with it.

[Mr Gibb]

Briefly, the Government are determined to ensure that no child is in an underperforming or coasting school. We are acting rapidly to tackle those problems swiftly. Within two months of the general election, we have a Bill available for scrutiny and ready to go through the system. We want to get the regulations right. We believe they are right, so we do not apologise for the swiftness with which we are acting to tackle coasting and failing schools.

[Kevin Brennan]

And we do not apologise for objecting to the manner in which the Bill has been introduced. If the Government were concerned about all children, all children would be covered by the Bill, but they are not.

Amendment agreed to.

Main Question, as amended, put and agreed to.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 8.55 am on Tuesday 30 June meet—

(a) at 2.00 pm on Tuesday 30 June;

(b) at 11.30 am and 2.00 pm on Thursday 2 July;

(c) at 9.25 am and 2.00 pm on Tuesday 7 July;

(d) at 11.30 am and 2.00 pm on Thursday 9 July;

(e) at 9.25 am and 2.00 pm on Tuesday 14 July;

(2) the Committee shall hear oral evidence in accordance with the following table:

[The Chair]

Because the deadline for tabling amendments for Thursday’s line-by-line consideration has expired, I am prepared to consider late amendments that would otherwise not be debatable, on the basis that they might arise from evidence given today. I hope that is helpful.

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Gibb.)

[The Chair]

Copies of the written evidence that the Committee receives will be available in the Committee Room.

We now come to the oral evidence from academics at University College London and King’s College London. May I remind everybody that the questions should be limited to matters within the scope of the Bill, and that they should be brief? May I ask our guests who are giving evidence to make their responses commendably brief so we can cover all the ground we wish?

Examination of Witnesses

Dr Rebecca Allen, Professor Becky Francis and Robert Hill gave evidence.

09:28

[The Chair]

Q 1 Will the witnesses introduce themselves for the record, starting with Dr Allen?

Dr Allen: Hello. I am currently director of Education Datalab, a research venture supported by FFT Education Ltd. I am currently on leave from my academic position at the UCL institute of education.

Professor Francis: I am Professor Becky Francis of King’s College London. I was a special adviser to the Select Committee on Education for its recent inquiry into academies. I am a professor of education and social justice, so my interest in academy sponsorship is through the lens of raising attainment for disadvantaged kids.

Robert Hill: I am Robert Hill. I work as an education consultant supporting development of school partnerships and multi-academy trusts. I am also a visiting senior research fellow at King’s College.

[Kevin Brennan]

Q 2 I thank our witnesses for coming this morning and for their patience. The Bill is not ready; the room was not ready, so we are going on as we started.

Because of the truncated time available, could you be as pithy as possible? I am afraid this session is a bit like “Just a Minute”, rather than an opportunity to expand at great length. You have all had a chance to look at the draft regulations the Government published last night. What do you make of them?

Professor Francis: You go, because I haven’t.

Dr Allen: My concern relates to whether we will be able to identify schools that are truly coasting. I think we all agree that there are schools that provide a perfectly adequate education for their children, but could do a great deal better for the children they educate. My reason for concern is that I believe those schools are much more likely to be serving more affluent communities. I think that these schools are not currently being judged as inadequate by Ofsted. That is because Ofsted inspectors judges what they see—the lessons and the practices—relative to the typical school that they visit, rather than relative to schools that operate in similar circumstances. The consequence of thisis that if a school serves an affluent community, the chances that Ofsted will deem it to be inadequate are extremely low indeed.

This underlies our need for another piece of the accountability mechanism, which judges whether schools are underperforming by a different metric. My concern about the metrics that have been chosen to define coasting schools is that they display exactly the same type of what I call a social gradient. By that I mean that if a school serves an affluent community then it will not be judged to be coasting using these metrics. So we continue to perpetuate the problem that, on the one hand, schools which serve deprived communities are subject to multiple accountability mechanisms, all of which they have a relatively high chance of falling below. However, even more importantly, schools which serve more affluent communities will escape all of the different threshold measures which we set up.

[Kevin Brennan]

Q 3 What would you do to identify and deal with coasting schools?

Dr Allen: First, I would prefer that we did not have this legislation. I would prefer that we redefined the terms of Ofsted. I do not believe that what Ofsted does in judging schools is wrong given its current remit, which is just to say whether or not the quality of the teaching, learning and practices within the school are good when compared to the average school. In the new remit I would ask Ofsted explicitly to judge schools relative to schools that serve similar communities.

[Kevin Brennan]

Q 4 There is no need for legislation, in your view, to create a separate definition of coasting schools and set it out on the face of a Bill. What you could do is change the remit of Osted in order to identify these schools.

Dr Allen: I would prefer that approach, because I worry about having multiple accountability mechanisms. There would be a significant possibility that schools, on the one hand, are judged by Ofsted to be good or, indeed, outstanding, and on the other hand we deem them to be coasting. That creates a confusing accountability regime for schools. I would prefer that we maintain the current accountability regime, in which Ofsted has the last say on whether or not a school is underperforming.

[Kevin Brennan]

Q 5 Do you think it would be possible under these regulations for a school to be deemed not to be coasting, and yet to be inadequate or requiring improvement?

Dr Allen: It would.

[Kevin Brennan]

Q 6 In that case, what should a school do if it is not coasting but requires improvement or is inadequate?

Dr Allen: It is very difficult. That situation will arise where schools serve more deprived communities and have very high levels of free school meals. They risk falling below the bar for the definition of coasting schools as it is currently proposed. What can we ask those schools to do? The problem with data is of course that we cannot tell whether a school is coasting. In data, coasting looks exactly the same as paddling very hard to keep your head above water. It is extremely difficult for a number of reasons to run schools that serve deprived communities. Of course, schools must compensate for any significant social dysfunction in the families of the children who attend. They experience higher teacher turnover. Because they are at significant risk of being deemed inadequate by Ofsted, they find it more difficult to recruit outstanding leaders.

[Kevin Brennan]

Q 7 May I ask Professor Francis to respond to some of those issues?

Professor Francis: I think that that was a very good summary. I am afraid that I did not receive the email this morning and I have not managed to get to my emails yet. I was interested to hear about the definition from colleagues. I think that there is a massive risk of confusion here. To respond to a question raised by Kevin, of course if a school is judged to be inadequate and it falls below floor targets, it may become sponsored in any case. We already have actions and measures to respond to those schools in those situations.

Regarding the scale-up to include this new group of schools, I think that Dr Allen is exactly right to suggest that there may be a situation where a school is judged by Ofsted to be outstanding, but is judged to be coasting against a range of other performance indicators, and that could be extremely confusing both for schools and also for parents. We already have a somewhat paralysing climate of fear where schools are trying to play every measure. I worry that this risks exacerbating that. Clarity is really important. When I did my original report on unsatisfactory schools for the RSA, we purely looked at Ofsted judgments and schools that had been stuck at satisfactory. I therefore think that it is very important to have clear messaging for schools about what a coasting school is.

[Kevin Brennan]

Q 8 Would you also be of a view that in order to avoid that confusion rather than to legislate separately in this way, it would be better if the concept of coasting is incorporated in Ofsted assessments and judged through inspection?

Professor Francis: Yes, or that perhaps the very term “coasting” is re-examined and we think, “What is that we are trying to get at there?” Is it schools that are not improving, in which case, what is it that we are looking to improve and what is it that is not happening? I think that would be helpful.

[Kevin Brennan]

Q 9 Could I ask Robert to respond?

Robert Hill: It seems to me that the regulations on coasting are a redefinition of the floor standards in a new form. To come back to the Minister’s starting point of not wanting to have children in underperforming or coasting schools, it will mean that we will still have pupils in quite a lot of schools or in parts of schools—because there is a lot of variation within schools—that will be let off the hook by this. It will not really search out or find underperformance with these definitions.

I understand the intention behind this bit of the Bill and the regulations, but I think it is a very blunt instrument. There are two other concerns. One is what Dr Allen referred to as the layers of multi-accountability. We almost have a teetering accountability system. It is getting heavier and weightier and weightier, layer upon layer. I think it will become increasingly difficult to provide any sort of incentive for people to go into a lead—even good schools—because of the risk of them being done-to and intervened on. We already have problems with recruiting for many positions and the field for candidates is small.

My other concern is that the Committee should be focusing on what are we going to do about it. The definitions are only a means to an end to identify. The question is what is the resource to solve the problem? Suddenly putting considerable numbers of schools, RI schools, inadequate schools, and now coasting schools into an ever larger pot, and loading that on to a regional commissioner system that is in its infancy and is already very stretched and ensuring that we have an integrated way of supporting that have not been thought through.

[Kevin Brennan]

Q 10 I will be brief because I want to hand over and let the Minister also speak while we are on coasting schools. Do the witnesses envisage that under the regulations as defined and from the Government’s intentions we are going to have a situation where heads and governors and so on are going to have to deal with the concept of being an outstanding school but also deemed to be coasting; a good school but also deemed to be coasting; a school that requires improvement deemed to be not coasting; and an inadequate school deemed to be not coasting? Is that possible under the regulations as far as we have seen them? I am aware that they were only released to us in the usual manner after they had been released to the press. The Government briefed this to the press all through yesterday, but we eventually got it at 10 o’clock last night. Are all those scenarios possible?

Robert Hill: I do not think quite all those scenarios are possible. It is technically possible, but I think it is unlikely that an inadequate school—

[Kevin Brennan]

Q 11 So that is not possible under the regulations as defined? That is what I am asking you?

Robert Hill: Well, Dr Allen may be able to answer. I think some of the other scenarios would be possible.

Dr Allen: We have not crunched the data yet, because we received it at 10.30 last night, which is a shame. In 24 hours we will be able to tell you. By our judgments on various different types of scenarios of progress and value added measures, there are, indeed, schools in most of those categories. For example, some schools that have very negative progress or value added measures in 2014 are judged to be outstanding, and some schools with superb value added measures are judged to be inadequate.

[Mr Gibb]

Q 12 Is not the point of the legislation to try to weed out the schools that are judged to be good or outstanding but that have been concealing poor progress? Is not that what we are trying to tackle? Would you support that?

Dr Allen: Perhaps, but I would ask why Ofsted has walked into those schools, given what we know about the quality of the education that they provide, and judged them to be good or outstanding. I come back to the question of whether we need to change the remit of Ofsted.

I reiterate the more important point, which is little understood, about the social gradient of progress 8. I will give you some examples from 2014 data. Just 42 out of 380 schools with less than 10% of pupils on free school meals had a negative progress 8 score, whereas 191 out of 347 schools with more than 50% on free school meals had a negative progress 8 score. It is not always obvious why that should be that case. The idea of progress 8 is that we judge children from the starting point of their test scores at the age of 11 and we expect children with the same starting point to make the same amount of progress.

That social gradient emerges for a number of reasons. The most important is just that there is clustering of social circumstances within schools. For example, take two children who performed equally poorly on their key stage 2 tests and, at the age of 11, we say are low-attaining children. One of them attends a relatively affluent school. The very fact that they are attending a relatively affluent school means that they are more likely to have a supportive home environment, which means that regardless of what happens in the school—the thing that we want to influence—that child is more likely to do well at GCSE. I am concerned that that social gradient is letting schools that serve affluent communities off the hook on this definition. I would prefer schools to be judged relative to schools like them and, unfortunately, progress 8 does not quite do that.

[Mr Gibb]

Q 13 In your written evidence, you said that you think that it is difficult to run a school in a poorer area. Do you think that they should be subject to a different form of metrics when they are being judged?

Dr Allen: It is more difficult, which is why I am kind of okay with the idea—it is correct in one sense—that metrics should find that schools that serve affluent communities are, on average, making better progress for the children. That is correct. It is also correct that Ofsted walks into schools that serve affluent communities and sees, on average, better teaching and leadership. All those things are true and we know that they are true because they have a larger pool of teachers to recruit from and a better choice of school leaders.

I understand your concern that we should hold schools that serve deprived communities to the same very high standards to which we hold schools that serve affluent communities. However, the problem is the extent to which those schools are able to compensate for all the things that happen in homes in affluent communities that lead to those children making good progress, regardless of what happens in those schools.

Saying that all schools must ensure that children make exactly the same levels of progress is bad for both ends of the spectrum. Setting up accountability mechanisms means that schools that serve deprived communities have no hope of ever being deemed anything other than underperforming. They then give up, and find it impossible to recruit headteachers and hard to recruit teachers. We set up a spiral whereby it is difficult for them to operate at all, and it does not raise aspirations for those schools.

[Mr Gibb]

Q 14 May I interrupt? What research have you done on King Solomon academy? Does that school find it difficult to recruit? The school serves a very deprived area; more than 60% of pupils are on free school meals. Last year, 93% achieved five or more GCSEs including English and maths. Do you think that school is not delivering?

Robert Hill: May I reply?

[Mr Gibb]

Q 15 May I just ask Dr Allen first? Then I would love to hear from Mr Hill.

Dr Allen: I do not think it is. In fact, one thing that we see is that the variation in school quality is much higher among schools that serve deprived communities than it is among schools that serve affluent communities. There is also a distinction between those schools that are operating in London and those that are not, for a variety of reasons.

[Mr Gibb]

Q 16 But is not that what we want to achieve? Is not the King Solomon academy what we want in very deprived areas, rather than putting a lower level of expectation on schools serving deprived communities, as you seem to be implying in your evidence to the Committee?

Dr Allen: My concern is not so much about the schools that serve in deprived communities, because they are already subject to a raft of accountability mechanisms. They are already being deemed to be inadequate and falling below the floor and everything else. We have all that in place. What we do not have in place is something that brings to account schools that serve affluent communities. This piece of legislation will not do that.

[Mr Gibb]

Q 17 Would Robert Hill answer that? I would also ask you another question, Mr Hill, because I want to make this my last question if I can. Do you think the progress measure is the right approach in dealing with these problems, and in addressing Dr Allen’s concerns, rather than using just attainment or just Ofsted?

Robert Hill: I am a big fan of progress measures. I think you are absolutely in the right ballpark doing that. Indeed, I think we should be looking at progress within student cohorts, within schools from one class to another. I do not think we should construct a national system to do that, but that should be the discipline that we apply. I think that progress in that sense is king, so you are in the right ballpark.

On your King Solomon point, absolutely all credit to King Solomon and others. Although, when you look at the distribution, the number of schools both from affluent and certainly deprived areas that are bucking that trend, closing the gap and doing that is a very small cohort.

The regrettable truth, for someone who supports the development of multi-academy trusts, is that for every one that has been compulsorily academised that has worked, you will be aware that there have been a considerable number that have struggled and are still struggling, and are still in something akin to that spiral. You are having to re-broker, I think, 100 sponsored academies and another 100 are in the pipeline. My concern, if I share your ambition, which I do, is where is the resource and support?

Just declaring them “coasting” or “requiring improvement” is in some ways the easy bit. The much tougher bit is to get the right mechanisms and support systems in place, as it were, to drive the improvement. That is where I think the Bill is in the wrong place. Although there are clauses in the Bill that do broaden the scope of things that you as Minister and local authorities and school commissioners can do, that is the real challenge for the education system.

[The Chair]

I am afraid we have time for only one more question, and I hope it will be brief.

[Bill Esterson (Sefton Central) (Lab)]

Q 18 We have talked predominantly about secondaries. What about primaries? What is the impact of the draft regulations on coasting when it comes to primaries?

Robert Hill: It is a threshold measure, as I understand it. If you get above the 85%, you are let off the hook. There will be a lot of primaries that will be above that measure where there will potentially be quite a lot of coasting going on. It seems to me that when people thought that the Government was going to act on the concept of coasting, they thought it was going to be seeking out underperformance in good or outstanding schools. In primaries the extent it might do that will be pretty limited.

[Bill Esterson]

Q 19 Rebecca, you said that identifying coasting primaries would be more difficult.

Dr Allen: I did. On the current definition, which includes a threshold measure—65% achieving level 4—and a median progress measure, by including the threshold measure you are knocking all of your schools that serve affluent communities out of having any risk of being deemed to be coasting. You have to be okay with that happening. If you are not okay with that happening, there is a simple solution: just cross out the threshold part of the measure and base it purely on progress. I would recommend that that happens.

The second thing to say about primary schools, which is serious, is that some primary schools are very small. When you have small schools, the measures of progress made by children from one year to the next are a relatively poor reflection of the true underlying quality of teaching and learning that are taking place in the school. The consequences of that are not quite in the direction that you think. A small primary school is going to have very volatile progress measures, which is not necessarily bad, under the definition of coasting; under that definition, a school has to be bad for three years in a row. The risk is that for very small primary schools—by which I mean a one-form entry and below—there will be poorly performing schools that manage to always just about escape being deemed to be coasting, because they maybe get lucky one year in their intake. This is an issue and means that the proportion of schools that are deemed to be coasting will relate to the size of primary schools.

[The Chair]

Thank you. I am sorry that the evidence session was shorter than we might have wished, but thank you for your contribution.

Examination of Witnesses

Malcolm Trobe, Sir Daniel Moynihan, Richard Watts and Emma Knights gave evidence.

09:51

[The Chair]

Q 20 Good morning. Thank you for coming. Will you briefly introduce yourselves?

Malcolm Trobe: I am Malcolm Trobe. I am a former secondary school headteacher and I am currently Deputy General Secretary of the Association of School and College Leaders.

Sir Daniel Moynihan: I am Daniel Moynihan, chief executive for the Harris Federation, a group of 36 academies in and around London. I was previously the head of two secondary schools.

Emma Knights: Emma Knights, chief executive of the National Governors’ Association. We are the membership organisation for governing boards of both maintained schools and academies and we exist to improve the effectiveness of governance in schools.

Richard Watts: I am Richard Watts. I am the leader of Islington Council, speaking on behalf of the Local Government Association.

[Kevin Brennan]

Q 21 I will ask one question and then pass it over to colleagues, as they will not otherwise get a chance to ask questions. In dealing with an inadequate school, is academisation the only way to bring about satisfactory improvement—why is it that the Bill says that Ministers must, when they find an inadequate school, organise its academisation? Could you each offer a short, “Just a Minute” type answer—in fact, one word will do. Start with one word each.

Malcolm Trobe: No.

Sir Daniel Moynihan: Yes.

Emma Knights: No.

Richard Watts: No.

[Kevin Brennan]

Q 22 Three noes and one yes. Could Sir Daniel perhaps explain why it is the only way?

Sir Daniel Moynihan: Maintained schools are under the remit of their local authority and the local authority has responsibility for their improvement and their monitoring. If a school fails, it will not normally be because of something that has happened overnight; it will be because of a gradual decline in performance over a period of time. The local authority should have picked up on that and used its resources to do so and my view is, therefore, that somebody else should be allowed to take on that school and improve it under the guise of an academy.

Malcolm Trobe: We clearly want all pupils to be in a good school. We want all local schools to be good schools. What we would say, however, is that changing the status of a school, in itself, will not necessarily change and improve the quality of the education in the school. What is required is a detailed, well thought out plan and a support system to go into the school. You need to understand the context of the school. One must understand resources; one of the critical things happening in a lot of schools that are in significant difficulties at the moment is that they are having major problems with teacher recruitment. One thing that we believe the Government need to tackle very urgently is ensuring that there are high-quality teachers available for these schools.

[Graham Jones (Hyndburn) (Lab)]

I am interested in this definition of coasting. My daughter is six and goes to a primary school. It is self-evident to me and my constituents that the differential between some schools is often the amount of time that is allocated to children out of school. There are the parental and social contributions and networks that children attend in some of the more affluent areas. How are they measured in this coasting measurement? Clearly, the same amount of time is not allocated in some of my poorer areas. There are challenges in life. How is that not part of the school day?

Richard Watts: Islington, which I represent, has a fair number of affluent people and we have more than our fair share of poor people. We see enormous differences in our schools, depending on people’s home circumstances. It is really important that schools do their best to compensate for that, but that is not wholly possible. No one should make excuses—

[Graham Jones]

Q 23 That was not my question. It is straightforward: how do you measure it?

Richard Watts: It is extremely hard—

[Graham Jones]

Q 24 That is the answer, then: extremely hard. We are not measuring it is the real answer.

Richard Watts: No, we are not—not adequately.

[Peter Kyle (Hove) (Lab)]

Q 25 Thank you all for coming today. I will jump straight in because we are pressed for time. Sir Daniel, in your answer you talked about failing schools, yet we are talking about coasting schools. What tools are there for tackling coasting, not failing?

Sir Daniel Moynihan: Clearly, with a coasting school, the legislation is not looking at an immediate conversion, but seeing whether the school can put an action plan together to improve itself within a reasonable amount of time.

[Peter Kyle]

Q 26 And you think that academisation is the only response to coasting, not failing?

Sir Daniel Moynihan: No, I answered in response to inadequate. In response to coasting, those schools may not realise they are coasting. They may be complacent, and if that is pointed out they may be able to get their act together and improve themselves. But there are clearly—

[Peter Kyle]

Q 27 Okay. That is the answer that I was curious to know.

Mr Malcolm Trobe, did you hear the previous evidence session?

Malcolm Trobe: Yes.

[Peter Kyle]

Q 28 It was interesting that throughout that evidence session, all of the witnesses spoke about schools per se; they did not make the distinction between maintained schools and academies. When it comes to coasting, do you think there is a difference between academies and maintained schools in coasting indicators?

Malcolm Trobe: No. All schools should be judged effectively on the same range of indicators.

[Peter Kyle]

Therefore—

[The Chair]

If you ask a question, you must let the witnesses answer.

Malcolm Trobe: I think you then have to examine whether the most appropriate indicators are being used. One of the concerns that we have is the initial use of attainment indicators, effectively for the first two years, in making the judgment before we move to a progress indicator. We believe a progress indicator is the most effective indicator for this system, because it looks at the progress that each individual child makes and is therefore dependent on their starting point.

We have a major concern, however, regarding secondary schools where even progress 8, which is a progress indicator, has a cap on it. Because the use of comparable outcomes to determine GCSE results is linked to key stage 2 schools, this means that even with a progress indicator, you can only improve to a certain level, because the number of youngsters achieving certain grades in all subjects is essentially fixed by the GCSE comparable outcomes system. This will therefore cap the system. The only way that some schools can improve effectively is for other schools to—on a measure—go down, so there is a need to have a better, closer look at the use of the progress indicator.

[Peter Kyle]

Q 29 If the problem affects all schools, is it not strange that the Bill focuses only on maintained schools and not every type of school?

Malcolm Trobe: As far as I am aware—the Minister will be able to answer the question—the term “coasting school” will apply to all schools.

[Peter Kyle]

Q 30 No, it will apply only to maintained schools.

[The Chair]

Read clause 1!

[Mr Gibb]

We will use the definition when we assess academies.

[Peter Kyle]

Q 31 The legislation focuses just on maintained schools. Does that not strike you as odd?

Malcolm Trobe: I think we believe in fairness and equality and, therefore, all schools should be treated the same, whether they be academies or maintained schools.

[Caroline Nokes (Romsey and Southampton North) (Con)]

Q 32 I have a question on teacher recruitment specifically for Sir Daniel, but I am sure that others will want to chip in. Do you think that academies and multi-academy trusts find it easier to recruit good teachers and leaders?

Sir Daniel Moynihan: It is certainly the case that teaching schools—the Government set up a teaching schools scheme—like medical schools, can train their own teachers. Increasingly, multi-academy trusts have teaching schools within them, which are training large numbers of teachers outside the university system. We have got 94 trainee teachers for next September and we will be producing teachers not just for Harris schools, but for London schools. So in the sense that we now have the freedom to take teacher training into our own hands and deliver qualified teachers, it is easier to that extent.

Richard Watts: Although I would note that that power is open to all schools, I think that teacher recruitment is much more about geography and somewhere being an interesting place to come and work than about the governance status of the school.

Malcolm Trobe: One way in which multi-academy trusts and chains have a big advantage is that they work collectively, effectively to have continuing professional development programmes that run across the trust. They are able effectively to grow their own leadership and develop their own leaders and that, therefore, enables some movement of staff into key positions. So if you have a school in a multi-academy trust that is hitting certain difficulties, you have often got some flexibility to move teachers around.

The biggest difficulty is in schools, particularly those in coastal regions, that are isolated and do not have access to teaching schools. One might call these areas teacher education deserts: there is no provision for young teachers coming into them.

[Suella Fernandes (Fareham) (Con)]

Q 33 This legislation, through guidance, aims to address the problem of latent stagnation in schools. It does that by identifying the standard for coasting and raising standards by offering those coasting schools the opportunity to work with some of the best experts in education to design a path to improvement. What should those plans include? What programme of improvement measures should there be for schools of that type?

Emma Knights: I think that, actually, pretty much every school in the country has a school improvement plan—it is part of what we do. It might be called something else, such as a school development plan, but that is actually what the governing board of the school is doing. I would not want the Committee to think that some schools are just bimbling along, not thinking about how they improve teaching and learning and outcomes for children. A huge change has taken place in schools over the last 10 years in terms of schools actually taking responsibility for that. We see, in fact, that a lot of schools do manage to improve without having to have what is called formal intervention.

I do not want to leave this room without mentioning interim executive boards, because there is more than one type of formal intervention and so far the Committee has asked only about sponsored academisation. We actually have very little evidence about which different types of formal intervention work best and that is a bit of a worry for me. This whole Bill has come into place when actually we are guessing.

The main bit of evidence was produced by the National Audit Office last year and it showed that 60% of schools deemed inadequate did improve without any sort of formal intervention because they had exactly that: a school improvement plan, and that worked in 60% of cases. Sponsored academisation worked in 44% of cases and IEBs worked in 72% of cases, so I really think the Committee needs to think about other interventions and please do not overlook interim executive boards.

You may think it is slightly funny that I am saying that as the National Governors’ Association, because obviously an IEB is put in place when the governance fails. But, if the school is failing, that is needed and we should be doing that.

[Kevin Brennan]

Q 34 If I may say so, that observation seems to be in direct contrast to what Sir Daniel said earlier. Sir Daniel, would you care to come back, rebut and destroy the points made by the representative of the National Governors’ Association?

Sir Daniel Moynihan: IEBs are an effective solution and in many cases IEBs precede academy conversion. In a number of the schools that we have taken on which have been—

[Kevin Brennan]

Q 35 I apologise for stopping you, but briefly, the Bill says “must” and that was the question I asked you earlier. It does not envisage an IEB as a possible tool to be used in those circumstances.

Sir Daniel Moynihan: No, but IEBs have often been used in those circumstances, so part of the success of the figures that we have just heard is that of IEBs on their way to delivering an academy solution. I know all academies are not successful and I am not claiming that they are, but not all treatments for any problem are successful and it does not mean that you should not have the treatment. In many cases, sponsored academies are doing an amazing job.

Richard Watts: One thing I would add is that local authorities face some bureaucratic hurdles in trying to place IEBs on schools that we think need some intervention. One of the changes to the Bill that we would like to see is to give local authorities the power to introduce IEBs without having to go through the process of applying to the Secretary of State, as that allows us to tackle problems more quickly.

Malcolm Trobe: Coming back to the original question, I would urge members of the Committee to look at the ASCL blueprint for a self-improving school system. We believe that school leaders are very committed to having a system in which there is school to school support, whether that be through federations, schools working together or through multi-academy trusts. The expertise to improve schools is within the profession itself and we believe that it is by schools working together that we will see a continuing improvement in our education system.

[John Pugh (Southport) (LD)]

Q 36 Following on from that, clearly the problem is coasting. Everybody wants the problem of coasting addressed. The only solution in the legislation is academisation. Apart from changing governance and headteacher, which often follows with academisation, what do academies have in their toolkit to address the problem of coasting that an LEA does not, and vice-versa? Councillor Watts, could you begin?

Richard Watts: My take is that actually governance status is not a very good indicator of any organisation’s capacity to change. There are some very good academy conversions—Harris is an extremely good chain—and there are some very poor academy conversions. Governance status is to my mind a distraction in all of this. There is a set of toolkits which are about getting outstanding leadership and teaching into schools, and any middle-tier organisation, be it an academy chain or a local authority, should have the powers to do that quickly and decisively. Primarily, good schools are made up of outstanding leaders, good teachers and a capacity to improve internally, working with partners. That is the only proven record across the piece of driving up schools.

[John Pugh]

Q 37 Following on from the earlier question, would a local authority have more difficulty in doing that than an academy chain?

Richard Watts: We are somewhat hampered by regulation at the moment because we have less capacity to intervene than academy chains do in their own schools. Were that playing field level, I think we could do it just as well.

Sir Daniel Moynihan: What does an academy chain have? It is important that any schools that are taken over are taken over by groups that have a good record. That is the first thing. Academy chains have freedoms in terms of how they operate outside the local authority. They have resources of excellent teachers in their schools, they have the ability to move budget around to help schools within their groups. They have all of those kinds of freedoms. A local authority is removed from its schools, whereas an academy chain can build networks for school improvement and deploy resources rapidly and directly.

[John Pugh]

Q 38 Local authorities lack the freedoms necessary.

Sir Daniel Moynihan: Local authorities often do not use the freedoms that they have. There is nothing that we have done in any of our schools that were failing that a local authority could not have done. In every case, the local authority simply did not do it and it had to have someone else take it over and make it better.

Emma Knights: I think that is the absolutely pertinent point. There are some local authorities that have done it and some that have not. There are some chains that have, and some that have not. There are some governing bodies that have, and some that have not; some school leaders that have, and some that have not. I completely agree that this is not about legal status. It is about good people and harnessing the good people at all levels of the system.

[Graham Jones]

Q 39 Emma, you represent school governors. I forgot to say that my partner is a school governor. Why are school governors not intervening in all of this? Where is their role in this? Why does the Bill not address school governorship, which you say could do everything an academy could do in terms of a transformational agenda? Where is the role for governors in this and why are they not succeeding in some schools as well as in others?

Emma Knights: You are absolutely right to say that governing boards are at the heart of this. If the governing board was doing its job right we would not be seeing failing or even coasting schools. Our job is to improve school governance and some governing bodies have absolutely driven school improvement while some, quite frankly, have not had the capabilities to do that.

[Graham Jones]

Q 40 Why?

Emma Knights: Why? A whole range of reasons. In some cases it is partly about recruiting people with the skills for the job. In some cases it is about people actually understanding their roles and not getting distracted by other things. In some cases it has been people supporting challenged senior leadership teams too much and not necessarily raising the bar. There is a really difficult balance between challenge and support. I could talk at huge length about this but I am sure the Committee has other things it wants to talk about. Governing well is an incredibly skilled job and we need to do it better in those schools where we are failing.

[Graham Jones]

A brief note on that might be beneficial—to me, at any rate.

[Mr Gibb]

Q 41 I have a question for Sir Daniel. You will be aware that the Bill tackles maintained schools, because the Secretary of State already has the ability to intervene in failing academies through her funding agreement with academy chains and academy trusts. You will also be aware that academies that have been sponsored academy secondary schools for four years have improved their results by 6.4 percentage points, compared with 1% for those schools in local authority control over the same period. Can you inform the Committee what it is you do at Harris, in terms of school improvement, that is so different from what happens in a local authority? We touched on it a little, but can you go into a bit more detail on the kind of things you do?

The second part of the question has to do with Downhills primary school, which your academy chain took over a few years ago. Can you tell us what has happened to Downhills primary school since your academy chain took it over?

Sir Daniel Moynihan: Starting with Downhills, that school went into special measures in January 2012 and was the subject of a fierce anti-academy campaign, led by the Anti Academies Alliance, David Lammy and Michael Rosen. There were many protests and it was felt that the school should stay with the local authority. The local authority at the time had very little capacity for school improvement. It had massive staff turnover and just did not have the wherewithal. It was not able to put up a credible plan and, in the end, it said that it was unable to deliver what was needed for the school. The situation was highly politicised—people were talking about privatisation and saying that the school was not failing and that Ofsted was wrong, but the inspection outcome was that there was inadequate progress, weakness in reading and poor progress at all levels. Two years later, it was judged by Ofsted to be a good school with outstanding leadership and management, no longer failing and with the third highest pupil progress in Haringey. So it has been transformed. Some 98% of parents were against the conversion; now the vast majority of parents are fully supportive. Sometimes you have to weather that storm to bring about improvement. That is Downhills.

As a network, we share good practice across the group. We have many programmes that are designed to coach teachers who might be satisfactory to become good, and those who might be good to become outstanding—we invest heavily by bringing the resources of the group together. For us, a good academy group is about being geographically proximate, so all our schools are close by and we are able to leverage a lot of resource. We have policies for discipline and for pupil tracking that are proven to work, so we can quickly fix discipline at a new school. We have our own internal review team that does mini Ofsted-style reviews, which will be more rigorous and detailed than Ofsted’s and help our principals to improve their schools. It is a huge investment in professional development, it is regular training together and a set of tried and trusted policies that work relatively quickly.

[Mr Gibb]

Q 42 I think education is about the individual pupil. Can you describe the change in pupils’ life chances at Downhills primary school as a consequence of Harris taking it over, compared with what would have happened to those children had you not intervened?

Sir Daniel Moynihan: At Downhills, the school was failing. Around 70% to 75% of children were making expected progress, so a quarter of children were not making the progress we would expect. In our most recent year, 2014, 100% of children made expected progress. No child underachieved. The number of children reaching secondary-ready standards in reading, writing and maths has improved dramatically. They are better prepared for secondary and will be successful as a result.

[The Chair]

Emma, I can see that you want to come in on this one.

Emma Knights: I do. Obviously, what has been done in certain chains has been absolutely fantastic for those pupils, but equally, this is one anecdote. We could be talking to a sponsor from a chain from which you have removed schools, so this is not giving the whole picture. You can do the sorts of things that Dan is talking about among other groups of schools. Malcolm mentioned the word “federation”. Federations are a similar model to multi-academy trusts but they are maintained schools. All those things about tracking, discipline and CPD for staff, which is incredibly important for school improvement, can be done within federations as well. We must not get obsessed with the legal status.

[Mr Gibb]

Q 43 Did the governors at Downhills oppose the school’s conversion to an academy?

Emma Knights: Downhills was not related to us at all.

[Mr Gibb]

Q 44 Did Downhills not have governors?

Emma Knights: Their governing body was not a member of ours. We checked at the time to see whether they were, and they were not.

Sir Daniel Moynihan: It is true that we could be talking about academy chains that have had schools taken off them, but the point is that where schools—whether they are academies or local authority schools—are inadequate, a change is being made. For generations, that has not happened. It is not a bad thing for academy chains that do badly to lose schools—so they should, and someone else should have the opportunity to fix them. That is right.

[Kevin Brennan]

Can we put on the record, Mr Chope, that that is a point of agreement, I think, across the Committee? Where schools are inadequate, action should be taken.

Richard Watts: Two points—the danger of policy making by anecdote is that it leads you down a whole range of dangerous roads. I could cite two or three examples in my own borough where fantastic conversion journeys—improvement journeys similar to Downhills—have been taken within the family of local authority schools. I do not think that governance status is the defining thing here. It is about decisive change to a school.

The danger of education statistics is that education is such a data-rich environment that you can essentially find a statistic to prove any point you wish to make within the education system. The danger is a reliance on individual, selectively chosen statistics.

[Mr Gibb]

Q 45 So you are saying, “Don’t use data and don’t use anecdotes.” What would you use?

Richard Watts: No, I am saying, “Do use data,” but I think one has to be very—I have a number of bits of data here showing, for example, that sponsored academies are twice as likely to stay inadequate as maintained schools. One can pick and choose data. I am saying that one has to use a whole range of different bits of evidence.

[Kevin Brennan]

Q 46 On that point, Councillor Watts, the Minister used a piece of data at the beginning. He said that sponsored academies have improved more quickly over the past four years than all local authority schools, which is hardly surprising, is it?

Richard Watts: I am sure it is not. Some of the most interesting comparisons are like-for-like ones. Putting to one side the politics of this, I urge the Committee to consider the Sutton Trust report on this, which looked at the capacity of schools. It found that of the 20 academy chains considered, three produced above-average results, including Harris—on which, enormous congratulations to Daniel—and that of 100 local authority schools, 44 produced above-average results. As I say, you can pick data that show any point you wish. I do not think there is any overwhelming data that show the governance model to be the defining thing in the quality of a school.

[Bill Esterson]

Q 47 Should high-performing local authorities be allowed to take over coasting academies?

Richard Watts: There is a real challenge that the Government will face in pushing through this legislation: the capacity of high-quality sponsors to take on more schools. There are some excellent sponsors and there are some not so good sponsors. We have seen that capacity problems can develop where sponsor chains expand very quickly. The Department for Education has rightly intervened in a number of those rapidly expanding chains. If you are going to expand the pool of high-quality sponsors, it is common sense that good quality local authorities, or even outstanding maintained schools, should be able to become sponsors.

[Bill Esterson]

Q 48 Sir Daniel, do you agree that local authorities should be able to take over if they are high performing?

Sir Daniel Moynihan: I don’t, actually. No.

[Bill Esterson]

Q 49 Okay. So we are not interested in high quality.

Sir Daniel Moynihan: It depends. How do you define local authorities as high performing? They are not directly responsible for the management of their schools, so what does that mean? If the schools in a local authority are doing well, does that mean the local authority is high performing? I think the headteachers of those schools would have something to say about that; their view would be that they have delivered.

Emma Knights: Or the governors.

Sir Daniel Moynihan: So if those heads and governors could take over schools, yes, I would agree with that.

[Louise Haigh (Sheffield, Heeley) (Lab)]

Q 50 While we are talking about data, the Local Schools Network has managed—incredibly, given the lateness with which the Government made public the regulations last night—to crunch the data and has found that 814 secondary schools would be defined as coasting under the Government’s regulations. Some 342 of those are academies, a high proportion of which are converter academies. That is surprising given that, as the Minister points out, those would have been good or outstanding when they were converted, but 125 of them had a progress 8 value added measure. Is progress 8 wrong, or is the Government’s definition of “coasting” wrong?

Sir Daniel Moynihan: Do you mean that they had a positive progress 8 measure?

[Louise Haigh]

Yes.

Sir Daniel Moynihan: I think Becky Allen was correct in the sense that in a well-to-do context where lots of children are affluent, it is probably easier to get a good progress 8 value. What should probably happen is that schools should be benchmarked according to the progress 8 value of schools very like them. At the moment, there is a “families of schools” section on the Department for Education website, where schools are compared with 55 schools with a similar intake. Probably something needs to be done to make progress 8 more sophisticated in order to take account of the context. It is too easy for some schools to look as if they are doing well with that, given their intake.

[Louise Haigh]

Q 51 Do you agree with the evidence in the previous session that it should be based solely or at least largely on progress rather than on a fresh value?

Sir Daniel Moynihan: Yes. The proposal for secondary to be 60% means, I think, that we are going to miss a whole range of potential coasting schools—there are coasting grammar schools that will not be picked up by the 60% threshold—so progress needs to be the driver. That alone probably is not enough. It may well be that it is a signal that somebody needs to go in and take a further look.

Malcolm Trobe: It is also important that we realise at this stage that coasting is a situation judged over three years. At the moment, we do not know where progress 8 will end up, because schools’ curriculum models will be changing, so progress 8 as an indicator will change with time. I think it is a little dangerous to go in there. I would ask the New Schools Network how it knows where the measure is of being below progress 8. As I understand it—hopefully I have this bit of legislation right—that has not yet been determined, because the data have to be crunched. Quite logically, we do not know where progress 8 as a measure will end up, because of changing curriculum models in secondary school, so I think it is a little dangerous to throw numbers around at this stage.

[Louise Haigh]

Q 52 Do you think that it is dangerous to enforce this progress measure retrospectively?

Malcolm Trobe: I think it is important that we move very quickly on schools that are not improving. Therefore, it is important that we identify schools that are not improving, and that work is done and support programmes are put in place to ensure that those schools improve, because that is surely the ultimate objective of everyone in this room.

[Louise Haigh]

Q 53 But given that progress 8 is not due to come in until 2016, is it right that it should measure schools back to 2014?

Malcolm Trobe: What they are having to do—I have a concern about the measure that will be used in 2014 and 2015, because that is essentially an attainment measure. We have our concerns that you have not got a consistent measure. When progress 8 or an alternative version is in place for three years, you will be measuring progress over the three-year period, but we have concerns that what you essentially have is an attainment measure for the first two years, to deem whether a school is coasting or not in those years, and then the progress measure does not come in until the third year. So an element of caution needs to be urged in the first year.

We support what is in the notes: a very clear statement that academisation is not considered the first step in coasting schools. It is looking at the work of the regional schools commissioner. However, that highlights the capacity issues. You might ask Tim Coulson later about the capacity of the regional schools commissioner to look at the context of schools that, under this measure, particularly in the early stages, are designated as coasting because of the nature of the ’14 and ’15 indicators.

Richard Watts: If I may say so, I think there is a real danger about the risk of clashing accountability systems. I can think of one school in my patch that probably falls under the coasting definition as published last night but has had two successive outstanding Ofsted judgments and is the most popular school in my borough for people to send their children to. It would not command public confidence for that school to be described as coasting. They have people queuing round the block to get into it. I feel for heads in circumstances in which they can be judged as outstanding twice in a row and then be condemned as coasting under these things. More definition is needed to work out the priorities within the accountability system and to send a clearer set of messages to schools about what is expected of them.

[Mrs Flick Drummond (Portsmouth South) (Con)]

Q 54 You have commented a bit, but I ask each member of the panel: which criteria would you use to identify a coasting school?

Richard Watts: I would be happy with an Ofsted measure. If we have Ofsted for a reason, we should respect its judgments. If we are saying that Ofsted needs serious reform, let us get on and reform it. If we have a schools inspectorate, it should be respected to some extent. It has to be about more than just progress. My borough is traditionally a highly deprived area that has seen very high levels of progress, but we are still not getting the final results. Employees never ask what your progress measure is; they ask what your GCSEs are. We need some measure of final result.

Emma Knights: I think we are in huge danger of over-complicating our accountability system. Schools are held accountable in so many different ways. I agree that layering this on top of Ofsted seems the wrong solution. We need to sort out Ofsted if we do not think that it is telling us what we need.

The real thing that will improve schools regards capacity in the system. Those of us who want to improve schools should all be worried about that. We have not talked about the regional schools commissioners and their capacity. At a time when the Department is having to undertake cuts, is there enough capacity in the system to identify these schools and work with them to improve? That is the real problem that we all face.

I cannot tell you how much governing boards want to recruit fantastic headteachers. That is what we want to do and that is what will change our schools. We are not getting applications from fantastic candidates in a lot of parts of the country. That is the real problem that we need to worry about, rather than layering measure upon measure and increasing the fear in schools. We think that one reason that some school leaders are not coming forward for headship is because they are already scared and drowning under the accountability system. We need to seriously change the culture.

Sir Daniel Moynihan: Going back to Richard’s point, there clearly are schools that are judged to be outstanding and have parents queuing round the block. The problem is, that if the children in them are not making the amount of progress that similarly good schools elsewhere are making, it is not wrong to jolt the school and possibly upset parents by saying, “Hang on a minute, these children are being short-changed. In other places—look at those—they are doing much better.”

[Kevin Brennan]

Q 55 But does not that tell you that the school is not outstanding in the first place?

Sir Daniel Moynihan: It could well do. Some 80% of schools are judged to be good and outstanding. What is intriguing is that, in some of those judgments, there are schools with enormous gaps between pupil premium and non-pupil premium children. That cannot be right. How can a school be outstanding with an enormous gap there? A number of schools with those judgments from the past have very low value added, so there are issues to be looked at.

Progress has to be the driver. Progress alerts you to a school; you have to look at it in a bit more detail to judge whether it is coasting or not. You would have to look at destinations to find out where those children are going: what kinds of universities, apprenticeships and jobs they are going to, and what attendance is like. Progress is the first stop but you have to look at other things to get the picture.

[Margot James (Stourbridge) (Con)]

Q 56 I have two brief questions. First, Councillor Watts, you mentioned a concern you had about the capacity of high-performing academy chains to take over coasting schools. Earlier, we heard that, in a lot of cases, a school once defined as coasting will, in fact, be able to put its own house in order. Does that not alleviate your concerns about the capacity of these academy chains and high-performing groups?

My second question is to Sir Daniel. When you were answering the point about the measures that the Harris chain put in place to improve schools, you mentioned pupil tracking and discipline. Do you have your own pupil referral unit within your group? Could you comment on the issue of recycling disruptive pupils from school to school? To my mind, that is a real issue among the underperforming schools, particularly in areas of lower socio-economic status.

Richard Watts: However you cut it, the Bill envisages quite a significant increase in the number of schools that are converted to academy status to address performance problems, whether they are failing or coasting. If there are ways that we can address coasting schools without relying on high-performing sponsors, great. I still think there is an issue that the Committee needs to consider about whether there is the capacity in the sponsors’ market to take on the kind of increase in sponsored academies that the Bill envisages.

Sir Daniel Moynihan: To answer the question on PRUs—pupil referral units—we do have our own pupil referral unit called Harris Aspire. It has roughly an equal number of Harris students and non-Harris students. It is available for everybody. Our rationale for starting it was that sometimes a student does unfortunately have to be excluded. Sometimes it has to happen.

We would rather be responsible for them into the future than just unload and forget about them. If parents are content, after an exclusion has happened, students will go to Harris Aspire. There are other times when a student needs a respite period to overcome a problem. They might go there for six weeks and then return very happily into a school. It has both those types of provision. There is a definite need for more of those. We have opened that as a free school, and that is great route to introduce more PRUs and introduce a market and have some competition. Existing PRUs sometimes have a monopoly locally and the provision is quite poor, and heads do not have a great deal of choice sometimes.

[The Chair]

Any more questions? No. In that case, I thank the members of the panel for co-operating, and that has got us back on time. Thank you very much for your help.

Examination of Witnesses

Dr Tim Coulson, Zoe Carr and Lee Elliot Major gave evidence.

10:33

[The Chair]

Good morning. Thank you for coming along. Please introduce yourselves, starting with Dr Coulson.

Dr Coulson: Good morning. I am Tim Coulson; I work for the Department for Education as regional schools commissioner for the East of England and North-East London.

Zoe Carr: Morning. I am Zoe Carr, CEO of a multi-academy trust in Tyne and Wear. We have four primary academies. I also sit on the Headteacher Board for the North of the regional schools commissioner.

Lee Elliot Major: Hello. I am Dr Lee Elliot Major; I am chief executive of the Sutton Trust and a trustee of the Education Endowment Foundation, two foundations dedicated to improving the outcomes of disadvantaged pupils in particular, and spreading good evidence of what works in the education system.

[Kevin Brennan]

Q 57 I welcome everybody to the Committee. I ask Dr Coulson, as a regional schools commissioner, to describe for the Committee your operation: what your office is like and what you do. How will you use the capacity you have to deal with all the schools that will be deemed “coasting” in your area as a result of this Bill?

Dr Coulson: We have an office in Cambridge in the centre of the East of England region. We have a small office of half a dozen civil servants and we have education advisers who are experienced in school improvement. They work with us on schools that are thinking about becoming an academy, and we visit academies where performance does not look good. We spend our time looking to do three things. We forge as many partnerships as possible to address the issue of capacity—we work extensively with the local authorities, teaching schools and significant academy trusts in the area. Secondly, we spend significant time looking to be very clear about addressing failure in academies and calling academy trusts to account for where they are not ensuring success. Thirdly, we look to the best schools in the system to form multi-academy trusts. You have just heard about the Harris trust, one of the large and famous trusts. The huge growth in our region, as across the country, is in trusts, which you will probably hear about from Zoe. There are excellent schools and relatively small multi-academy trusts. The very best school helps the failing—or in future coasting—school that requires improvement and really needs support.

[Kevin Brennan]

Q 58 Just to be clear, the operation consists of you and six civil servants. How many advisers?

Dr Coulson: We have four advisers.

[Kevin Brennan]

Q 59 And are those full time?

Dr Coulson: Broadly; not quite.

[Kevin Brennan]

Q 60 To finish, because I want others to get in, do you think you would need extra resources to deal with the extra responsibilities being given to you in relation to the coasting schools in the Bill? Or is your current operation adequate to take on and deal with the new responsibilities in an outstanding way?

Dr Coulson: The bit of capacity that I did not refer to is the wider DFE resource. Within the DFE is the academies group that manages and administers the academies system for Ministers. We draw significantly on their capacity. In the coming few years, when the Bill comes into operation—assuming it goes through and we plan for 2016 and the increase in looking at coasting schools—we will need to look carefully at our capacity to understand schools. In terms of coasting schools, we are not expecting all of them to become academies, but we are expecting to look at whether all of them have a strong plan. The bit of capacity that we are particularly looking to increase is the national leader of education capacity. So, before thinking about whether schools need an academy trust, we need the support of national leaders of education. The Government have recently announced that they expect a further increase in capacity in that area.

[Kevin Brennan]

So to do an outstanding job you will need a little more extra resource is what you are telling us.

[Peter Kyle]

Q 61 May I also place it on the record—I should have done it before—that I am chair of governors of an academy?

Zoe Carr, based on your extensive experience, how important is parental involvement and community engagement to the long-term improvement of a school?

Zoe Carr: I think it is absolutely vital. The four schools that we serve are all in areas of very high deprivation, ranging from double to three times the national average. We have had success for a number of years and have employed our own staff to work specifically with parents. If you engage parents appropriately and get them involved and interested and upskill their knowledge and understanding of the education their child is having, that absolutely pays dividends in supporting the child. It is vital, particularly in areas of high deprivation, to break down the barriers. Often parents themselves have had a negative experience of schools, and the thought of going into a headteacher’s office can be daunting. We have staff to go between the parents and the headteacher, who the parents see as being on their side and wanting to get them into the school.

[Peter Kyle]

Q 62 Thank you. That is an interesting response. Conversely, removing parents and the community from the discussion about the future of a school could presumably hinder improvement in the long term.

Zoe Carr: I disagree with that point. The situation that we are talking about is where schools have failed and are inadequate. In my experience, the need to move quickly in relation to getting—

[Peter Kyle]

Q 63 May I make a distinction then, before we carry on, because time is pressing—I am sorry for interrupting you—about failing schools? The evidence from the previous panel was clear on this, as well. The shadow Minister put on record that the Opposition agree that, with a failing school, the price of removing parental engagement is worth paying for the short-term improvement and benefit that can result from academisation. Many of us have experience of that. When it comes to coasting, do you think the price of removing community engagement and parental involvement is worth paying for the potential increase in outcomes that academisation will deliver?

Zoe Carr: On coasting, it is about determining whether that school is fit to improve itself. In my experience, it always comes back to the leadership aspect. Sometimes parents have a certain view of the leaders of a school that may not always be accurate. As we have heard with governors, parents might not be able, because they do not have enough contact with the leadership, to determine sufficiently whether the leaders are suitable in turning that school around to lead to better outcomes for their children.

[Peter Kyle]

Q 64 May I put the same question to Dr Major? Do you believe that where a school is coasting—not failing—removing consultation with parents and the community is likely to produce beneficial outcomes?

Lee Elliot Major: It is difficult to say. I always come back to the evidence on that, and we have very little evidence. We know that parents have a huge impact on children’s outcomes, but we have little evidence of what interaction is supportive and what works and what does not work. It is not a fudge, but there is no evidence to know which way it would go.

[Peter Kyle]

Q 65 As a final question, I invite you to put forward other tools that could be beneficial in challenging coasting schools, in addition to academisation. Is there any other way that engagement could be brought forward to provide the jolt that is needed?

Lee Elliot Major: There are some brilliant academy chains that do transform lives. There are also academy chains that have not done so well. One thing I would say is that you have to be careful about which academy chain you engage with. There are other options that the Government are considering on coasting schools, such as working with the leadership to begin with—I would totally support that—and, as I understand it, looking at a number of options before going into the discussions on becoming an academy.

[Caroline Nokes]

Q 66 We heard from the last panel—apologies, but this is again directed at Zoe—that geography is important when it comes to multi-academy trusts and that the region had an impact. It was easier to manage academies if they were in close proximity to each other. From your experience, what do you think there is by way of capacity in your area, were a number of the primary and secondary schools to be required to become sponsored academies? Is there the capacity there in the shape of sponsors?

Zoe Carr: One of the successes of the regional schools commissioner board for the north of England has been to increase the number of small sponsors coming forward who are prepared to take on one or two more schools. That has been a real benefit of the work that our regional schools commissioner has been involved in with the wider board over the past year that they have been in office.

I certainly see proximity as an important factor. We have staff who I know personally, because I have worked in each of the four schools. If I see a particular need on leadership in a school, we bring together our teachers and our leaders at all levels to work together to solve the problem, or to coach or to mentor. In that way, I have seen the rate of improvement in our schools go up much more quickly than if we did not have that talent bank within our organisation to draw on.

It is important that, within that local context, you stay connected to the local area. One of our schools is a teaching school, and we have lots of schools within the alliance that are both academies and maintained schools. It does not make any difference to me where the support comes from. We work with outstanding maintained schools and with outstanding academies to serve our own ends. Wherever the support is most appropriate, that is where the support will come from.

[Bill Esterson]

Q 67 Dr Major, the evidence that the Sutton Trust came up with suggested that, overall, multi-academy trusts—chains of academies—are not performing as well as local authorities, when it comes to looking after the schools they are responsible for. Given that academies are increasingly where we are going—and this legislation is going to accelerate that process—what is the answer? How do we make sure that sponsors improve so that they are outperforming the existing system?

Lee Elliot Major: We found that overall there was a variation. Some academy chains were doing incredibly well and improving attainment progress and others were not. We tried to look at the factors behind that. Basically, they are the things that we all know about: good leadership and a focus on teaching in the classroom. All our evidence suggests that that is the one major issue in schools. If you have good leadership that focuses on that, you will get results. It sounds simple, but that is the basic issue that the evidence throws up.

Over and above that, we found that the successful chains had steady growth. They were not taking on too many schools too quickly. They had a clear strategy for school improvement. They had geographical clusters of schools, which I think you were alluding to earlier.

What should you do to encourage that? I am in favour of Ofsted inspecting chains of schools as well as schools themselves. We are heading in that direction. We may come to this point later, but I think the accountability measure should explicitly look at disadvantaged students as well. When we talk about thresholds of 60% or 85% being over a certain grade, or progress measures, we should apply those to children as a whole, and also to those children from poorer backgrounds. I would therefore measure academy chains alongside those data.

[Bill Esterson]

Q 68 Will you say a bit more about the accountability measure you are looking at for disadvantaged children?

Lee Elliot Major: Our argument would be that the accountability measures that we are discussing here, for example, for coasting schools or for inadequate schools are as follows. At the moment, you have general accountability measures, which say that children need to get over a certain proportion of grades to be successful. We would say that you should have an explicit separate measure, to which schools should be accountable, which would measure that for disadvantaged children—those on free school meals.

[Bill Esterson]

Q 69 You mentioned the quality of leadership and teaching. Emma Knights mentioned that the accountability measures and the increasing complexity are not helping governors to recruit school leaders. What are your thoughts on what Emma Knights told us?

Lee Elliot Major: There is some real challenge here. I would argue that one of the biggest challenges facing schools now is recruitment. You will all know about the situation with both maths and English teachers. We all need to think about that. One of the big challenges is getting good teachers into the system. The second challenge is how to develop teachers. I still do not think that we have a strong enough system in this country to develop teachers to observe and appraise each other. The biggest variation in teaching is within schools, not between them. It is perhaps outside this Bill, but we need a stronger programme of development and learning for teachers and we also need the leaders. We need more leaders and I think that will come from the system.

[Bill Esterson]

Q 70 Coming back to the point about accountability measures and the changes that the Bill will bring about, are there things that you think we should look at as we examine the Bill line by line? Are there things we should look at changing to reduce the concerns that Emma Knights raised about recruitment?

Lee Elliot Major: It is difficult. I think you have to go outside the Bill. I totally agree that you have to have strong accountability measures, but they have to be counterbalanced with very strong professional development of teachers. All the international evidence suggests this. The countries that do best in education have strong autonomy and accountability, but also a very strong sense of how they are going to develop their teachers. I am not sure whether that is in the scope of the Bill, but I would say that you need that counterbalance.

[Bill Esterson]

Q 71 A question for Tim Coulson. Where will the additional sponsors come from to meet the expansion in the number of academies?

Dr Coulson: The additional sponsors will come from schools that Zoe has described. The really big trusts such as Harris have limited additional capacity, although they are terrific and we are delighted when they do agree to take on another school. However, even in the last couple of months since the direction of the Bill was announced, I have been encouraged that I have been contacted by more schools in the region I work in which are interested in stepping up and starting to set up their own multi-academy trusts. For me, the big capacity to generate is, locally, the very best school in an area, to set up a trust that is capable of running three or four schools. That is the main area of capacity that we need to grow.

[Bill Esterson]

Q 72 How will you assure the quality of those sponsors? We have seen some high-profile problems. How will we avoid those?

Dr Coulson: There are two things. One is that the system is learning a bit about sponsors—those that have been successful and those that have been less successful. The work that Zoe described about headteacher boards has brought greater scrutiny by headteachers of those kind of decisions. That has been a very helpful development in the last year. When someone wants to be a sponsor, they have to go through various processes when they apply. Potential sponsors now have to go into a level of detail, and they have to demonstrate why they would be any good at this, what the governance is and all those kinds of things. Certainly on this the bar has been raised very significantly, even in the last 12 months.

The second thing is the work we have begun to do in the last year to hold academy trusts accountable much more quickly when schools do not appear to be doing as well as we would expect. There is also the use of mechanisms in the funding agreements that allow us to give warning notices and pre-warning notices to academy trusts, which make clear that, unless things change, we will have to move schools from one trust to another.

[James Berry (Kingston and Surbiton) (Con)]

Q 73 I should say that I am a primary school governor. Dr Coulson, there are different tools for improving academies. Could you briefly explain a little about those? I understand that the Government will extend those methods to failing and coasting schools.

Dr Coulson: In terms of improving academies, when those academies that I have got to know in the last year have not been going successfully, crucially, the kind of measures which led to improvements have brought much greater local support. Typically those schools that have struggled are rather dispersed from other schools in their trust. They are schools which do not really have a local understanding of their area, and have struggled to succeed in the progress debate of the children, who typically are in quite low attaining schools. It has been about leadership, as you have heard many times. It has been about the academy trust being able to draw on the local leadership capacity that perhaps they had not previously had. It has been about bringing in fresh leadership to have a fresh look, and sharing some of the key people, whether they are heads of English or heads of maths. This gives a fresh look at departments where children have not been making the kind of progress which you would expect, certainly in these key subjects.

In terms of the second point about failing and coasting schools, there is a big distinction between failing and coasting. In failing schools, I would absolutely expect to see the kind of measures I just mentioned, so an academy trust would immediately take responsibility for the school and do the same kinds of things. In coasting schools, I think that there is a considerably wider group of possible interventions, of which joining an academy trust is one. There are some of the things which Emma Knights talked about, such as interim executive boards; some of the other measures that the Bill mentions, such as insisting on joining up and making arrangements with strong partners for support, and making use of teaching schools and national leaders of education. All those kinds of things are some of the measures we would expect to see a coasting school engaging in. The important thing about the Bill is that there is an expectation that the plan works, one way or another, and that we use every single tactic until we have made sure that it does. That then might include moving to academy status if necessary.

[James Berry]

Q 74 In your experience, how do headteacher boards use local knowledge to advise on decisions?

Dr Coulson: The headteacher board I am familiar with has members drawn from Norfolk, Cambridgeshire, Peterborough, Essex and the London boroughs of Waltham Forest and Redbridge. So across the region we do not have someone who can speak for every single part of the region—we do not have complete, comprehensive knowledge—but we have a pretty wide knowledge of two things. One is an understanding that Norfolk is not like east London, what that means in practice and the kinds of issues that schools are facing in dealing with that. The second is that headteachers of outstanding schools have quite good knowledge of the local players in the field and of who might be the kind of people to draw on in trying to solve a problem. Those are the two things that they have brought.

[Graham Jones]

Q 75 My question is to Dr Major. You mentioned parents and you also mentioned variation in schools. I am a bit concerned that sometimes the debate is about deprivation when actually, from my perspective, affluent schools are more likely to be coasting. Affluent areas really concern me. I want to come to the differential within schools and the role that parents play. What do you think the definition of coasting should be, considering the comments you have made and my concerns?

Lee Elliot Major: I would have liked to have something in the definition of coasting schools explicitly about disadvantaged children. We have seen some schools that are doing very well overall, but when you dig beneath the data you find that the poorest children in that school are not progressing that well. You will all know that the attainment gap is the biggest challenge, arguably, that the education system faces. I have come round to believing that we should be much more explicit about those data. We spend a lot of money, £2.5 billion, on the pupil premium for those children, quite rightly, but I think we need to measure how well that is being spent and how that relates to their outcomes.

[Graham Jones]

Q 76 That is fine for schools as a single issue, but within schools? There are many affluent schools where there are affluent parents doing home teaching and those kids are moving on, but within that affluent area, within that single school, there are, as you say, variations, so that there are pupils whose parents are not allocated as much time, who are not succeeding as well, but that school is not deemed to be coasting. How are we going to measure failing pupils within a school? Predominately this is within affluent areas, but not exclusively. How are we going to measure that within schools? How are we going to deal with that issue in the legislation?

Lee Elliot Major: It is a good question. I am not sure whether it will solve all these issues, but—I keep coming back to this—in the measures that have been announced for coasting schools I would argue for a separate column for those from disadvantaged backgrounds. Thereby, we could see whether those most in need in a school are making progress and reaching that threshold as well as the other children.

[Graham Jones]

Q 77 Are you talking about two definitions? For example, you used the definition of free school meals. Are you saying that free school meals should be one definition within a school for coasting, and for schools, plural, and those not on free school meals another? Are you trying to differentiate the two within schools, as a measure of coasting, to try to determine what is happening within those schools, as well as within schools within an area?

Lee Elliot Major: Yes. I think it would give us more information on a school if we had what we are defining as these criteria for coasting for those children from poor backgrounds as well, explicitly. At the moment my understanding is that it will just be a general figure. If schools are failing poorer children I believe that that should be a trigger for whatever—that is particularly the focus for us. At the moment that is not in there. It will be more so, but it is complex: we are moving from one testing regime to another. Once we look at progress 8, I think we will get a better, rounded picture of outcomes, because then we will be measuring outcomes for children across the board, not just on that C/D boundary. So I think the future attainment measure will give us more information about children in school, but again, I would argue that we should have an explicit progress measure for those from disadvantaged backgrounds.

[Mr Gibb]

Q 78 My question is to Zoe. You run a small academy chain, the WISE multi-academy trust. There are, I think, around 400 or 500 multi-academy trusts that have spun out of high-performing schools, whether primary or secondary. Can you tell us a bit about your story, what happened and how you improved the schools that you took over—what were they like before you took over and then what happened to those schools?

Zoe Carr: The trust began with two primary schools that converted. They were well-performing schools—

[Mr Gibb]

Q 79 Which town?

Zoe Carr: In Sunderland. One was an outstanding school which was federated with another school that was good, and at that time both of them were converted to academies. We were asked by DFE to sponsor two other schools, so we sponsored both of them in close proximity—one in December 2012 and one in September 2012. One was in special measures and the other, although it had come out of special measures, was still well below floor standards.

Both schools have since converted to Ofsted ratings of good, and attainment in both is above floor. In one of them it is above the national average; that school has an intake of double the national average in terms of levels of deprivation for free school meal indicators. Both schools have been real, strong success stories in bringing about improvement for the pupils in those disadvantaged communities.

[Mr Gibb]

Q 80 In terms of the life histories of those pupils if you had not intervened, what is the difference between the life chances of those pupils if they had been left where they were compared with their life chances now that they are part of your multi-academy trust?

Zoe Carr: The figures say it all. For children who are not getting to the required standard by the end of primary school, the statistics for their performance at the end of secondary school make very sad reading in terms of their achievement. We are confident about the actions that we have taken: every time it comes back to leadership. Every time it is about getting the right people into those senior positions who then make sure that teaching across the school is good, outstanding and improving. Every time it is about getting that right as, in turn, it will have a massive impact on the pupils’ outcomes within the schools.

[Mr Gibb]

Q 81 Thank you very much. I have a quick question for Dr Major. The Sutton Trust produced a report fairly recently showing that high-performing key stage 2 pupils eligible for the pupil premium performed less well when they went on to do their GCSEs than high-performing key stage 2 pupils who were not eligible for the pupil premium. Can you say something about that report and answer whether you would accept that our focus on progress, in identifying coasting schools, is key to addressing that issue—not just for high-performing key stage 2 pupils eligible for the pupil premium but also for average and below-average pupils, to make sure that they all perform at the same rate as children from more affluent backgrounds?

Lee Elliot Major: We looked at those children attaining highly at the end of primary school and analysed the proportion of those who were still in the top performers at the end of secondary school. What was alarming was that those children from disadvantaged backgrounds, basically those on free school meals, were twice as likely not to be in that high-performing group at the end of secondary school. You see a real, depressing attrition over the years of secondary school. We very much welcome the new Progress 8 measure because it will, for the first time, properly hold schools accountable to those high attainers. We need to think about the range of attainers among poorer children—there are many high attainers in that group and any accountability measures should try to track that.

[Mr Gibb]

Q 82 A thought has just occurred to me. I do not know if you heard the evidence from the first session when he heard Dr Allen talking about the problems of running a school in an area of deprivation. She said that is was very difficult to run a school in such an area. Her implication was that somehow a lower standard should be applied to those schools than to schools in more affluent areas. Do you reject that view as much as I do?

Lee Elliot Major: I would be very uncomfortable with that. I did not hear that evidence, but we have to have very high aspirations for all our children. The Sutton Trust and the Education Endowment Foundation have found many times that if you give them opportunities, they will fly. We have many examples of children—some of them are now MPs, in fact, among many other great professions—whom we have helped in our programmes. No, I would counter that, although I did not hear the evidence.

[Kevin Brennan]

Q 83 There was a call to name names over here, but we will not hold you to it. Tim, do you have key performance indicators in your job relating to the percentage of schools becoming academies?

Dr Coulson: We have a range of measures that we look at. One of them is schools becoming academies, principally because we want to encourage them to move, once they become academies, as Zoe said of her experience, to contributing as part of a multi-academy trust system.

[Kevin Brennan]

Q 84 Do you see any problem at all with balancing the new powers that you are being given on coasting schools with having performance indicators relating to the number of academies within your area?

Dr Coulson: No, I do not, because I think the most important measures that we have got are to see improvements in the system. For me, the crucial bit about coasting schools is having a whole new way of looking at those schools. I come most recently from working in a local authority. In the region where I work, extremely good relationships have been established between the work that I do and the local authorities. One of your colleagues asked me about capacity. There is something in there about how we need to pull together all the different aspects to really check that every school that we want to improve does improve.

The coasting schools regulations bring into focus another group of schools whose improvement we can definitely check. I would love for those regulations to be much more ambitious and tackle a whole load of schools. I think that there is another group of schools we can really focus on.

[Kevin Brennan]

Q 85 Do accountability measures for schools ever drive schools to teach to the test? That has been alleged. Do you think that that ever happens with schools?

Dr Coulson: Inevitably. I think accountability measures are extremely influential.

[Kevin Brennan]

Q 86 If accountability measures are influential for schools, why are they not influential for you in relation to coasting schools and your accountability measures relating to the academisation of schools? Why are you immune to the very thing you say schools suffer from?

Dr Coulson: Part of what the Sutton Trust evidence argues for is a subtler use of measures. On the question you are asking about my own performance measures, the performance measure you talked about is one of nine different performance measures that are there to balance things out. In terms of the contribution of one particular performance measure and the extent to which that pushes behaviour, which I think is your point—I understand the point you are making—for me, the whole basket of performance indicators is designed to make sure that we use most judiciously the different paths that we have to try to get schools to be better schools.

[Kevin Brennan]

Q 87 But you understand why some people might see a potential conflict of interest in those two objectives?

Dr Coulson: I suppose my argument would be that in terms of the range of those performance indicators, I hope that the whole set of those indicators would drive our behaviour in terms of getting the region better.

[Kevin Brennan]

Q 88 Interim executive boards were discussed earlier. In your opinion, through your long experience in education, are IEBs ever a way to deal with an inadequate school? Can that be the right solution sometimes?

Dr Coulson: My experience of IEBs in inadequate schools is that they have been extremely useful transition tools to move schools to an academy trust. In terms of coasting schools, there could be IEBs that do a different job.

[Kevin Brennan]

Q 89 Before you move on to that, can I make the point that I am trying to get to? Are IEBs ever a valuable way to deal with an inadequate school that is not on a pathway to academisation, but is nevertheless on a pathway to improvement within the maintained sector?

Dr Coulson: I have not experienced it.

[Suella Fernandes]

Q 90 I am a chair of governors at a free school. I want to build on the Minister’s point about the measure used to identify standards in schools and the move to Progress 8. We heard evidence from Dr Allen, who did not really think that Progress 8 was a suitable standard because it did not capture data for the requisite amount of time and displayed the same social gradient. She also said that the assessment of coasting would add an extra layer of accountability, which schools would find confusing. Could you all say a bit about what you think of those comments and opinions?

Dr Coulson: I think that the definition of coasting is a measured increase in ambition. What you heard earlier was about whether the threshold of 60% under the current measures and then 85% for primary schools gives a ceiling for the number of schools that would come into the scope of being addressed. I would love to address every single school. The draft regulations give a significant increase in ambition to schools that really need a focus, while managing the capacity question that I have been asked several times about how much we can grow the system in order for schools to come into it.

The points we heard about tweaking the measures were all really well made. There is a balance in terms of what the increase of ambition means at this stage in the draft regulations. As crafted now, they show a significant increase in ambition, even if they do not address every single school that people would like to have focused attention on.

Zoe Carr: I would like to pick this up from the primary angle, if I may. The 85% attainment measure—which all aspire to, so we will live up to it and do everything that we can—is more challenging for disadvantaged schools. However, the biggest thing for me is whether affluent schools will be identified under this coasting definition if they achieve the 85% measure but their progress continues to be poor. We must not miss that really important aspect when the Bill passes through Parliament, because we still need ways to identify those sorts of schools. I think that is the reason for the Bill being here in the first place—to try to address the coasting schools in our education system.

If those schools’ progress measures are not above the median for a number of years, yet their attainment is above 85%, it is right that we look at those elements. That is where schools in disadvantaged areas will feel that they are being hit twice by these accountability measures, whereas schools in affluent areas will have a much greater chance of attaining the 85% and their progress will not then really be looked at.

Lee Elliot Major: I was going to make exactly the same point. I worry—for me, it always goes back to the disadvantaged children—about the progress of children in high-attaining schools. I would love the Bill and the discussion to think about those schools in very advantaged areas. A lot of children coming into those schools are already high attaining, therefore the school’s results will generally be higher. My worry is: what about the sometimes small number of children—it is a significant number across the nation if you add them all up—who are not succeeding in those schools? You are then looking at progress measures in both primary and secondary schools. That would be my worry—that we miss out on those hundreds of thousands of children.

One final point—I was not here for Dr Allen’s evidence, but year groups come and go and can be very different in a school, so I like the fact that this will be triggered by a three-year passage of time. That is a sensible approach.

[John Pugh]

Q 91 I have two questions for Zoe Carr. You told us about the laudable efforts and improvements made by your trust. If, in years to come—heaven forbid—some of your schools or perhaps your whole trust is found to be coasting, you could not reasonably object to having imposed upon you the same disciplines, rigours and procedures as applied by the legislation to the maintained sector, could you?

Zoe Carr: Absolutely not. In my experience, through the work of the regional school commissioner and the headteacher board, those are exactly the rigours that the academy sector has now. The data for each academy are looked at in a great deal of detail and where schools are found not to be performing well enough then an immediate intervention is put in place.

[John Pugh]

Q 92 You are suggesting currently you have that same kind of discipline.

Zoe Carr: Yes, in the academy sector.

[John Pugh]

Q 93 Following on from what Peter Kyle said earlier about parental consultation, at first you started talking about underachieving or failing schools and then we got on to coasting schools. Is it your view that if a parent consultation indicates a marked lack of enthusiasm for the academy solution—in a school that is coasting but may be graded good or outstanding by Ofsted—none the less it would be right to ignore parental opinion?

Zoe Carr: We have already heard that in coasting schools there will not be one clear way forward in respect of the school.

[John Pugh]

Q 94 Suppose parental opinion is, “No, we don’t want to become an academy” and this is a coasting school which may well be graded good. Is your view that it should still proceed in that circumstance?

Zoe Carr: I would still look to see whether that school could improve with the opposition from the parents.

[John Pugh]

Q 95 Would your view therefore be that parents in that scenario would not know what was the best outcome for their children? That is the only rationale for doing that, is it not?

Zoe Carr: I would have to go back to leadership and governance once again and determine whether that school has enough available resources to be able to lead the school.

[John Pugh]

Q 96 Parents at a good school might none the less not have the right view of their children’s educational welfare.

Zoe Carr: It goes back to data and figures and the proportion of children in the school who are actually making the expected progress.

[John Pugh]

Q 97 The parents will be too ignorant to make that sort of decision on their behalf?

Zoe Carr: No, absolutely not. We consult parents an awful lot.

[John Pugh]

Q 98 Can I just persist with this point? You could give them the data as part of the consultation. Suppose you give them the data and you share all the data with them, and none the less it is their view in their school—this is my scenario—which may be a good school, but none the less is graded as coasting, that they would rather stay with the local authority than become an academy. Your view is still, in that circumstance where you share the data with them, that their view should be overridden.

Zoe Carr: That school would be given time under a plan that we have already talked about to see whether it could make the improvements that we discussed previously. If it is found that that school still cannot make those improvements, then the route forward would be for that school to become a sponsored academy.

[Louise Haigh]

Q 99 In the earlier session, we heard that we have little evidence of which formal intervention works best. There are anecdotal examples of academies that have improved, but clearly we cannot say across the board that academisation is the best answer for all schools. What is clear is that teaching and leadership is the most important factor in improving schools. Would you all therefore say whether the Bill will make it easier, harder or have no impact on the ability of schools to recruit and retain teachers?

Lee Elliot Major: It is hard to know. I would urge, as part of the Bill, looking to trial this in different schools so that we can come back to a Committee in three years’ time and know the evidence. One thing I would say straightway is that we should try to develop some evidence around this because there is very little at the moment. As I said earlier, our evidence is—and there are lots of claims and counter-claims in this area—that there are academy chains that do very well and there are others that do not. That is the honest truth. In terms of recruitment, I think it can go both ways. There are some academy chains that have better career progress for teachers because they can go between schools. There is better professional development. There are other chains that do not do it very well, to be frank. It can go either way depending on the academy chain.

[Louise Haigh]

Q 100 So probably no overall impact.

Lee Elliot Major: I would say that there are other ways of doing it. There are school federations that do it well. Generally, the sector is facing a big issue around improvement, and that is a looming issue.

Zoe Carr: What I have experienced through our trust is that we have been able to do more of the growing your own version that the CEO of Harris academies talked about earlier. We have been able to take leaders from one academy and give them opportunities to get them prepared and ready for our succession planning, so that if we take on another school that needs to strengthen leadership, we have the people there to be able to do that. The more time that you have to work with people, the more that you know them and the more it takes out the variation of what the next headteacher we will appoint will be like. Or, if we cannot get the people we need to run the schools, we have already grown people we can use. We have a talent bank.

It is not a perfect solution. Of course, we have a shortage of headteachers in the country willing to go into the most challenging and disadvantaged schools. I am not going to skirt over that issue, because we need to do more to encourage headteachers to go into challenging schools. As accountability rises, the pressure in the job rises—that has to be said—but multi-academy trusts can build a support network around the trust’s key leaders so that people are not left alone to make every decision. In our trust, our leaders have the opportunity to concentrate on the things that matter the most for the outcomes for our children, because they are not burdened with all the bureaucracy around all the other things that headteachers in a single school often have to deal with themselves.

[Louise Haigh]

Q 101 So you think that an extra layer of accountability will act as a further disincentive to attracting headteachers into the most challenging areas.

Zoe Carr: I think that the most successful and aspirational leaders thrive on challenge. That can drive them forward to think, “Right, if that’s the bar, we will do all that we can to achieve it.”

[Louise Haigh]

Q 102 Do we need to be heaping further challenges on to what are already the most challenging schools through another accountability measure?

Zoe Carr: There is great accountability in the system at the moment, and I am not sure whether more accountability is the right way forward, but this accountability works in relation to what is already out there in the system—it works within the floor targets that we have previously experienced.

[The Chair]

I want to fit in one more question.

[Mrs Anne-Marie Trevelyan (Berwick-upon-Tweed) (Con)]

Q 103 I declare that I am a governor of Berwick academy.

The question of the Bill being aimed at maintained schools, not academy schools, has been mentioned a lot. Is it your view that the existing regional schools commissioner framework is already working well enough to manage academy schools? We are obviously looking to send a lot more schools into that framework to manage the coasting or inadequacy issues within the academy framework.

Dr Coulson: The regional structure we have had for the past year has begun to address that, but we need to go further. The focus on coasting schools will give us an additional focus on coasting academies as well as on coasting maintained schools. We have more to live up to on coasting schools. The focus to date has probably been more on the inadequate academies, but we do have the mechanisms to focus on coasting academies.

Lee Elliot Major: Again, I have no evidence, but my gut instinct is that you will need more capacity—I cannot see it any other way. If you are going to look at how academies are performing as well as at coasting schools, you need good people and more of them, in a regional capacity.

Zoe Carr: We need to work through the system leaders we have to mobilise more of the school education system. If our school-led system is to work effectively, it is not only about the few who are supporting others, but about getting more and more of our outstanding headteachers into this agenda to get them to spread out and build small, multi-academy trusts in local proximity to one another. I think that that is how the system will move forward effectively.

[The Chair]

I will give the last word to the Minister. You have one minute.

[Mr Gibb]

Q 104 A question to Zoe Carr: would you prefer to be a headteacher in an academy or in a local authority school, and why?

Zoe Carr: I would not like to be a headteacher in a stand-alone academy, because there are far too many other areas that you need to take on and be accountable and responsible for yourself. However, I would absolutely no way want to go back to a maintained situation, because in our multi-academy trust we have a wealth of people dealing with health and safety, HR issues, all the financial issues and governance, and they are very skilled in their own areas. All that is taken away from our key educationalists, who can then lead on improving teaching and learning, improving our teachers, and getting the best outcomes for children.

[The Chair]

That brings us to the end of our allotted time. On behalf of the Committee, I thank the witnesses for coming along and for helping us so much with what you had to say today.

11:25

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Education and Adoption Bill (Second sitting)

Tuesday 30th June 2015 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Mr Christopher Chope, † Sir Alan Meale

† Berry, James (Kingston and Surbiton) (Con)

† Brennan, Kevin (Cardiff West) (Lab)

† Donelan, Michelle (Chippenham) (Con)

† Drummond, Mrs Flick (Portsmouth South) (Con)

† Esterson, Bill (Sefton Central) (Lab)

† Fernandes, Suella (Fareham) (Con)

† Gibb, Mr Nick (Minister for Schools)

† Haigh, Louise (Sheffield, Heeley) (Lab)

† James, Margot (Stourbridge) (Con)

† Jones, Graham (Hyndburn) (Lab)

† Kyle, Peter (Hove) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Nokes, Caroline (Romsey and Southampton North) (Con)

Pugh, John (Southport) (LD)

† Timpson, Edward (Minister for Children and Families)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

† Trevelyan, Mrs Anne-Marie (Berwick-upon-Tweed) (Con)

† Walker, Mr Robin (Worcester) (Con)

Wilson, Sammy (East Antrim) (DUP)

Fergus Reid, Glenn McKee, Committee Clerks

† attended the Committee

Witnesses

Sir Martin Narey, Chair, National Adoption Leadership Board

Carol Homden, Chief Executive, The Thomas Coram Foundation for Children (Coram)

Annie Crombie, Chair of the Consortium of Voluntary Adoption Agencies

Hugh Thornbery, Chief Executive, Adoption UK

Andy Leary-May, Chief Executive, Adoption Link

Andy Elvin, Chief Executive, The Adolescent and Children’s Trust (TACT)

Anna Sharkey, Chief Executive, Adoption Focus

Alison O’Sullivan, President, Association of Directors of Children’s Services

Russell Hobby, General Secretary, National Association of Head Teachers

Nick Gibb MP, Minister of State, Department for Education

Edward Timpson MP, Minister of State, Department for Education

The Lord Nash, Parliamentary Under-Secretary of State, Department for Education

Public Bill Committee

Tuesday 30 June 2015

(Afternoon)

[Sir Alan Meale in the Chair]

Education and Adoption Bill

14:00

The Committee deliberated in private.

14:01

On resuming—

Examination of Witnesses

Sir Martin Narey, Carol Homden and Annie Crombie gave evidence.

14:01

[The Chair]

Q105 1 Welcome back. Would the witnesses introduce themselves to the Committee?

Sir Martin Narey: Certainly, sir. I am Sir Martin Narey, and I am chair of the national Adoption Leadership Board. I was chief executive of Barnardo’s for five years.

Carol Homden: I am Carol Homden, chief executive of Coram.

Annie Crombie: I am Annie Crombie, chair of the Consortium of Voluntary Adoption Agencies.

14:02

Sitting suspended.

14:09

On resuming—

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

Q 2 May I ask all three of you, what problem are these proposals designed to address and will they do it?

Sir Martin Narey: I have been instinctively against structural change. When I first started advising the Government, I just wanted us to encourage local authorities to get on to it and, actually, they did. They have done really well with recruitment. The measures address a fundamental problem with matching. As well as chairing the national board, I spend a bit of time in the north-east, which is where I live. For many local authorities, the last adopters they want are adopters who live within the confines of their area. They are placing neglected children, who need to be put somewhere else for their safety. Matching on a more regional basis will make a difference. I hope that the proposals will reduce the parochialism of local authorities so they will look for the very best adopters, whether they are from another local authority or from a voluntary adoption agency.

Carol Homden: There is huge variation in performance between different agencies across the country, which results in a postcode lottery for children. It is important that we bring together the agencies and organisations in the pursuit of excellence and best practice for all children. The proposals may assist that process.

Annie Crombie: One of the things that the proposals are trying to address is the challenge of sequential decision making. We have seen this problem in the adoption system for years whereby a local authority will look first to adopters that it has within its own pool and then only after it is clear that there is no one suitable there will it look beyond to what we call an inter-agency placement.

These proposals could help significantly with that, meaning that local authorities will look immediately towards a bigger pool of adopters. There is a risk that, unless the voluntary adoption agencies are a really key part of the regional adoption agencies—we hope that they will be—they will find it harder to continue to provide adopters. That is a risk that I think needs to be managed, but we need to ensure that the adopters that voluntary adoption agencies provide are also available to local authorities and that the regional adoption agencies would look for those adopters as well for ones within a local authority pool.

[Steve McCabe]

Q 3 If the problem is largely about matching and there is a postcode lottery, would it not make more sense to give the local authorities the role of purchaser and allow specialised agencies with all their expertise to go out, find the families and do the matching? Would that not be just as adequate a solution as this proposal?

Sir Martin Narey: One of the things I like about the proposal is that it is not very prescriptive about how regions will do that. I think if some local authorities in a region came together and decided that the best thing to do would be to contract out their recruitment of adopters to a voluntary adoption agency, they could do that. I like to think that the Government have listened to advice, including from me, and I think the Government have listened to local authorities, many of whom I have met, who instinctively want to do something differently. They realise that the current limitations in 152 local authorities—180 organisations including VAAs—doing this is not very sensible. They have been given an opportunity, with a bit of money, to help them to improve their own service.

I go around the country quite a lot and I have yet to meet an adoption manager or director of children’s services who does not think that this is something that could make things better. They are thrilled about the opportunity to design what is best for them themselves, rather than taking a top-down model.

14:13

Sitting suspended for Divisions in the House.

14:40

On resuming—

Ordered,

In programme order [this day], in the table—

Delete “2.45 pm” and insert “3.15 pm”.

Delete “3.15 pm” and insert “4.00 pm”.

Delete “4.00 pm” and insert “4.30 pm”.

Delete “4.15 pm” and insert “4.50 pm”.

Delete “5.00 pm” and insert “5.45 pm”.—(Margot James.)

[The Chair]

Dr Homden.

[Steve McCabe]

Q 4 Sir Alan, before we come to Dr Homden, could I just check something? I was asking why not go for a purchaser-provider split, and Sir Martin said that the great thing is that this proposal is permissive, non-prescriptive and allows people to innovate. Actually, the legislation before us for which you are a witness, is about the powers of direction that the Secretary of State is planning to take. Is that not the case, Sir Martin?

Sir Martin Narey: Yes it is, but the Government have made it clear that the powers of direction will not be used unless local authorities do not move. Local authorities are actively doing that.

[Steve McCabe]

Q 5 Sir Martin, that may be the case. The point I am making is that you cannot say that the legislation creates this permissive environment. The legislation is to give the Minister powers of direction. Your desire in what he is telling people externally may be what you are describing, but the legislation is about giving him powers of direction.

Sir Martin Narey: I understand that.

[Steve McCabe]

Thank you.

[The Chair]

Q 6 Dr Homden, I think you were about to answer the question before we went to vote.

Carol Homden: In establishing regional entities, which Coram has already done, local authorities have taken a range of different views in what will best meet their needs, and have used a procurement and contract process in order to align those needs. Different local authorities will apply different modules and commission different services.

We have in process the formation of such an entity with a set of five local authorities, which will see those different approaches taken, but all of them will benefit from a centre of expertise with resilience in practice leadership and social work retention and, therefore, offering added benefits to children and adopters locally on a hub-and-spokes model. You are quite correct, Mr McCabe, that this is about taking a power, but I am sure that good sense would prevail: if excellence in practice is being delivered and something is not broken, then it does not need to be mended, irrespective of questions of scale.

Annie Crombie: What we want is a local authority to look as widely and swiftly as possible for the best possible match for a child, and not to be constrained in doing that by looking only, or for a long time, introducing delay, within their own local authority area. We need to ensure that in moving towards regional adoption agencies we do not introduce a disincentive for local authorities to look outside a regional adoption agency if the right placement is outside rather than inside. It is that kind of issue that is again around that sequential decision making, which we need to ensure we address as the policy on this develops.

[Bill Esterson (Sefton Central) (Lab)]

Q 7 The relevant clause in the Bill talks only about adoption, but there other forms of permanence. In fact, for most children in care, the other forms of permanence are where they end up. Do you have concerns that the measure will exacerbate an existing gap in the quality—or perceived quality, at least—of adoption and fostering, residential care and kinship care?

Sir Martin Narey: I do not take that view. I think the Government, certainly encouraged by me in my role of the past few years, are encouraging adoption because adoption happens to be the disposal that has been in such long-term decline. I am puzzled when people talk about the emphasis being given to adoption, as opposed to other disposals. The number of special guardianships, from a zero start in 2006, has now caught up with adoption. There were 5,000 adoptions last year and 75,000 fostering placements.

Adoption has been in long-term decline, despite some spirited attempts to revive it by the Labour Government, who inherited figures of about 2,000 adoptions and got them up to about 3,700. The figures then immediately fell away again. This Government have brought great leadership to it and have got the numbers up to about 5,000. In 1975, there were 24,000 adoptions a year in England. Adoption has been in long-term decline, despite the evidence that it offers quite extraordinary advantages in terms of permanence and outcomes for children.

Despite all the difficulties that adoption can present, it offers quite extraordinary options for changing the lives of neglected children. Even after the recent slowdown in placement orders, we still have children waiting for adoption who need it as soon as possible. We are right to try to make sure that we have a system that is more fit for purpose and can fill that gap.

[Bill Esterson]

Q 8 Before I come to Dr Homden and Annie Crombie, is there anything in the Bill that will help children who are placed through other forms of permanence?

Sir Martin Narey: There is nothing in the Bill that will do that. I believe, however, that the emphasis on adoption has had significant advantages for other forms of placement. The emphasis on responding to neglect means that the Government have done other things to make long-term fostering easier—the development of and financial investment in special guardianship. A lot more has happened in dealing with neglect and adoption, but adoption is still not meeting the role it could play in responding to neglect.

Carol Homden: I agree with that. Adoption is not in conflict with other forms of permanence. It is an exemplar of when the care system works correctly for children for whom the risks are so great that the decision has been taken, by due process, that they need to be placed in a new, loving family. We need to guard against putting up different forms of solution for children as if they are somehow in conflict with one another. We need to aspire to ensure that the appropriate decision making is in the timescale of the child, and that children’s need for continuity of relationships and attachments is foregrounded in all those decisions and in the actuality of practice.

All too often, children from the care system report repeated changes in social worker and in placement. That is where our attention should sit, but the Bill focuses on seeking to accelerate and accentuate a direction of travel to ensure the maximum benefit for children for whom adoption is the right plan. I commend to you a further focus and emphasis on the benefits of concurrent planning and foster-to-adopt approaches—particularly concurrent planning, which offers a fully fair, appropriate and transparent way to foreground children’s need for attachment, while allowing all proper support and opportunities for birth parents to demonstrate their capability to change.

[Bill Esterson]

Q 9 As far as you are concerned, will the Bill’s provisions help with the challenges you have outlined?

Carol Homden: It certainly will. It is not possible for very small agencies, however noble their intent, to provide sufficient opportunities for concurrent planning, which is a specialist form—for example, within a very small social work team. Having a larger base of resilient social work will allow that kind of opportunity to become normalised for more children.

For example, in the establishment of Coram Cambridgeshire Adoption—the first voluntary adoption agency into which Cambridgeshire County Council has delegated its adoption functions—we simultaneously introduced concurrent planning. Twenty-five per cent. of adoption placements in Cambridgeshire were made through concurrent planning last year, with significant benefits for the timeliness and for those children’s attachments.

[Bill Esterson]

Q 10 Will the Bill help with children who are sometimes regarded as hard to place—sibling groups or children with disabilities, for example?

Carol Homden: In my view, absolutely; definitely. Those are the circumstances in which the principle that Annie indicated—the principle of having the widest possible range of adopters and specialist services available to provide the necessary ongoing, reliable and consistent post-adoption support—is more likely to be resiliently achieved within a larger grouping of agencies that have a common purpose.

Annie Crombie: I agree with much of that. The point about scale and the specialism of adoption services is important. If regional adoption agencies work well, it could allow agencies that really specialise, or develop specialist expertise—such as some that I represent—to offer their services in a much more structured way across a wider number of local authorities, rather than it being a question of an individual relationship or a happy coming-together in the margins of a conference with a local authority making an arrangement with a particular voluntary adoption agency that has a specialism in a particular type of work. We could see those sorts of services being made available in a more systematised and structured way, which would benefit more children.

To come to the earlier point that you made, I welcome the way that the Government document published to support this opens the door to arrangements that go wider than adoption. Many of the voluntary organisations that work in this area provide services across more than just adoption; some do not, some are very adoption-focused, but many do. It may well make sense to think more broadly than just adoption, but there is something about specialism here that is important, and which I think we all want to see developed in relation to some aspects of adoption.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

Q 11 Good afternoon. My question is to everyone in turn. The Bill states that an authority’s functions may be taken on by either another local authority or another adoption agency but there is nothing to say which criteria the Secretary of State will choose for the preferred option. I was wondering whether the panel could help out the Secretary of State and suggest what kind of criteria she might use.

Annie Crombie: I do not imagine that the Secretary of State would disagree that it is really important that quality should be at the heart of any regional adoption agency and that we need to think about expertise in the different elements of what is needed to be able to provide a good adoption service. If a group of local adoption authorities without any particular strength in low incidence adoption support—without any specialism in particular provision of therapeutic services—were to come together, it would not provide a strong service for children in the area. If they include someone with a specialism or real, and proven, expertise in adoption support, then that would be much better. So it is about quality across all the different elements of what an adoption service needs to do.

Carol Homden: Quite clearly, excellence for children is what needs to drive us. That is our sole focus and concern. Therefore, in making any decisions on intervention, I think that the Government would wish to consider the criteria that it applies in other circumstances where there is a shortfall against national standards. In considering how we might take forward regional adoption agencies we, as an organisation that already provides regional adoption agencies, have given considerable thought to this and would recommend including six key criteria that should be taken into account—we would be prepared to give written evidence of those recommendations.

The first is that bringing weak things together does not in itself make a strong thing. Any hub should therefore include at least one agency, as the lead, that is rated either good or outstanding. The aim must be to replicate good practice, not to concentrate less good practice. Steps should be taken to ensure that not all the agencies forming the arrangement are characterised by a high turnover in social work staff, since relationship continuity is essential to the support of adopters and children and effective planning. Data collection and case-tracking systems are directly related to performance management and should be robust in at least one agency. There is considerable complexity in the different systems used by local authorities and the more of them that are involved in any regional agency, the more complexity and difficulty there is in managing risk and optimising outcomes. The definition of a cluster should relate to road transport and not to the other forms of consideration around what might constitute a region. The important factor here, as it is for a special school, would be the travel distance involved for adopters and children to access the services that they need.

Any hub should explain how it will build upon the cross-regional system support that is already provided in our nation. This includes, for example, First4Adoption, which has demonstrated the benefits of consistent customer service and could do far more on a cross-national basis. Every hub should undertake a market risk assessment if it is excluding any voluntary adoption agency, since more than 90% of voluntary adoption agencies are good or outstanding. Any loss of that excellence in the system could only be a disbenefit to children.

Sir Martin Narey: I will not give you six criteria but just one. I have not given much thought to the criteria for how this will be used, because I genuinely believe that there will be a significant move towards regionalisation, which will occur of its own volition. This was poised to happen before the election. For me, the overwhelming criterion when we look at adoption—or indeed other forms of permanence—is how quickly we rescue a child from neglect and put them into a home in which permanence is achieved, and where the reparative work can begin.

We have made great strides with recruitment, but matching still takes far too long. The main criterion for me is how quickly we can improve the process of matching and achieve greater pragmatism in matching. Matching between adopters and children sometimes takes too long as we search for the mythical set of perfect parents, but the sooner we get children into permanent homes, the sooner and more complete will be their recovery from the desperately adverse consequences of being brought up in neglect.

[Mrs Lewell-Buck]

Q 12 I understand that different local authorities and different areas might have different approaches, but do the members of the panel agree that it is important for the local authorities and agencies that are affected by this that there should be some kind of criteria in place? I think that Dr Homden and Annie Crombie agree, but Sir Martin does not.

Sir Martin Narey: No, I think that if these powers have to be used, then of course there will have to be some criteria. I have not yet had any discussions with either the Secretary of State or the Minister of State on what the criteria will be, because I think it is unlikely that these powers will have to be used other than very rarely. My sense from going around England and speaking to directors of children’s services is that they are keen to do this, because they will be able to do better at the job of adoption and particularly of matching and—given that improvements usually cost money—it will save them some money as well.

[Caroline Nokes (Romsey and Southampton North) (Con)]

Q 13 I wanted to pick up on something that Dr Homden said, with which I will not disagree. She referred to looking at road transport as the means of establishing a hub. Presumably you have already given consideration to island regions where road transport is not possible, Dr Homden?

Carol Homden: Quite clearly, there are specific circumstances which will need to be carefully considered, affecting the regional and also the metropolitan areas as well as island areas. These are complicated matters, and there may be a very good reason why the Minister would wish to consider whether or not it would be appropriate to seek a particular form of involvement in a region. It may be that partnership in a much larger geography is more practical, or more meaningful in terms of access to the services that a particular area needs; I completely acknowledge that point. However, for the majority of places, these practical considerations will be ones that involve road transport links.

[Louise Haigh (Sheffield, Heeley) (Lab)]

Q 14 Annie, you mentioned the inter-agency barriers that still exist. Could you confirm that the Bill actually does nothing to address any of those barriers other than creating bigger agencies? Secondly, to the whole panel, do you think that this will actually restrict choice for adopters in terms of agencies at a local level?

Annie Crombie: On the inter-agency point, the policy around regional adoption agencies would bring together a number of local authorities. At the moment, if a local authority purchases an adopter from another local authority or from a voluntary adoption agency, it pays for that adoptive placement. It pays the same amount whether it is to a local authority or a voluntary adoption agency. That levelling of the amount paid is an achievement of fairly recent years, and it has meant a great deal in terms of sustaining the participation of the voluntary sector. It cannot afford to do the work it does unless it gets paid a fair price. That has also been an achievement because it has ensured that local authorities would not look more favourably on another local authority placement just because it was cheaper, and genuinely think about which is best for the children.

A regional adoption agency—while it has reasonably not yet been worked out what that would look like—will probably change the way in which money changes hands when a child is placed from one local authority with an adopter. It might mean being placed elsewhere with an adoptive parent approved by a different part of the region. It might mean there is a single adopter, approver and recruitment arm in a regional adoption agency and so all of those adopters feel free to you. That could be a really good thing because there will be a much bigger pool and there will not be any financial barriers stopping the placement of a child with a particular adopter. The risk for the voluntary sector is that if it is not part of that, suddenly the cost drivers change and the placement feels very expensive again. That is why it is so important that we think about how the voluntary agencies can continue to be part of the landscape and part of the regional agencies.

Carol Homden: On your point about choice, there are some areas, with reference to the previous question, where in practice there is no choice. There is a local authority agency and I’m sure it works in the full best interests to meet the needs of those adopters, but generally, choice is a positive thing in any system. It tends to drive quality and, in a digital era where, for example, people can search for information on adoption first, they are better able to make a judgment and to find an agency with which they feel comfortable. An adopter is making a life-changing, lifelong decision. They need to have full confidence and trust in the particular social worker or group of social workers that they are working with. It is a risk to us if this reform process leads to a reduction in choice across boundaries, particularly given that there is generally a much higher level of engagement from and satisfaction of adopters from the first call to voluntary adoption agencies, which deepens through the process, including with post-adoption support. The point needs to be about protecting equality and choice in whatever arrangements we make.

Sir Martin Narey: The only thing that I would like to add is that the really important choice element in adoption is the choice of child. These arrangements will significantly increase the choice of children for adopters. At the moment, if a prospective adopter is unlucky enough to be living in one of the 20 local authorities that dealt with fewer than 20 adoptions last year or in a local authority where there are already many more adopters than children, it will be very difficult to get a child. The future is finding the best parents for adopted children, wherever they are. You are taking evidence later from Adoption Link. I think that is an incredibly good initiative, which is opening up the prospect of searching beyond regions to find the very best possible adopters. I am sure this will improve adopter choice significantly.

[The Minister for Children and Families (Edward Timpson)]

Q 15 Carol very helpfully set out some guiding principles on what should underpin the development of regional adoption agencies to make sure that they are driving the excellence that we want to see, as we have set out in our “Regionalising adoption” paper. Could you also say what the risks are of the Secretary of State being overly prescriptive through a direction about what that regional adoption agency should look like, given that we are hoping and expecting this to come from the bottom up on a local level rather than be dictated from the centre?

Sir Martin Narey: The reason that I counselled you and your predecessor Tim Loughton against making structural arrangements to further recruitment is that I thought it would result in you, your officials and me being absorbed in nothing else for two or three years. We would just be managing the incredibly complex business of using new structures. That is why I hope that you do not have to use this direction very much at all. If you do, there will be a very great risk that it diverts us from the more important task of making sure that we are getting children from neglect and into adoptive homes as fast as possible. I am confident that you will not have to use this power very much, but if you do, it will be a significant risk. If we have to design top-down structures for regions across England, it will divert us from the more important task.

Carol Homden: I would agree with that. This is a direction of travel where all agencies are motivated by one key thing, which is trying to improve the outcomes for children, but we also need to recognise that it can be challenging to apply that best practice. If the risk is that, due to the direction from above, you have the unwilling working with the unwilling, it will not necessarily lead to a positive outcome. We need to design these approaches based on a clear diagnosis of the problem to be solved locally. We need to enable organisations to come together in ways that address those problems, as opposed to having one size fits all or an obvious type of solution. That is why I drew attention to a hub-and-spoke model, as opposed to, for example, an area that is contiguous, because of the issues that were raised earlier around children needing to be placed in circumstances where they are and can be safe. We also need to draw upon specific, specialist expertise, as Annie said. The risk would be that it might be gotten wrong unless the diagnostic approach is taken to identify how local problems will be particularly addressed.

Annie Crombie: All I would like to add is that, where we see arrangements working well now—there are some excellent examples of partnership working in adoption—they are based on trust and strong relationships. If we impose such arrangements, we will not be able to take account of those sorts of things that can develop so well at local level organically. It is important that we allow people in organisations to build on those partnerships and have that dialogue at this point, leading into the development of regional agencies.

[The Chair]

We have time for just one more question, and then we will have to wind up and move on to the next session.

[Steve McCabe]

Q 16 You said that these powers will not be used. If they are, should the people affected have a right to challenge any decisions made by the Minister? Is there anything about these proposals that you would do differently? One word and one sentence will suffice.

Sir Martin Narey: I don’t know.

Carol Homden: I don’t know, either. The criteria need to be clear in any system that is designed for optimal effectiveness.

Annie Crombie: The thing that we need to make sure that we do well is to have dialogue between all the different partners involved in the adoption system early on, so that we do not inadvertently design systems that do not make the very best of the expertise that we have out there.

[The Chair]

Sir Martin, Dr Homden and Ms Crombie, thank you very much for your participation. We are very grateful. We will now move on to the next session.

Examination of Witnesses

Andy Leary-May and Hugh Thornbery gave evidence.

15:10

[The Chair]

Q 17 Mr Thornbery and Mr Leary-May, we will ask you to present a background of yourselves to Committee members, who will then ask you questions. We apologise for the earlier delay, which was due to votes in the House. Your session should continue until approximately 3.40 pm. Mr Thornbery, would you like to make your presentation?

Hugh Thornbery: Thank you, Sir Alan, and thank you for inviting me to give oral evidence on the Education and Adoption Bill. I am chief executive of Adoption UK, which is a membership organisation for adopted families. Our purpose is to support those families, to campaign and lobby for change and to inform and educate both the general public and professionals in relation to the needs of children adopted from care and of their families in parenting those children. We have a membership of over 11,000 individual members and most adoption agencies in the UK are also members. On such matters, we draw our position from what our membership tells us on a daily basis, both through our individual contact with it and from surveys and research.

Prior to joining Adoption UK in October 2012, I was employed by Action for Children for 15 years. Part of my responsibilities there were for the adoption and fostering services within that charity. I have been involved in children and social care since the late 1970s.

Andy Leary-May: Thank you for inviting me. I am an adoptive parent, and my first experience of adoption was about nine years ago. I have run an adoption support charity for most of the intervening years. More recently, myself and colleagues who were more experienced in IT than I was started to look at the barriers that exist to inter-agency matching and the barriers to children finding the most suitable placements in adoption. We consider one of those barriers to be the lack of an effective and efficient way of exchanging information between agencies or between consortia of agencies. We felt that in this day and age there is no reason for that to be a barrier, given that in most other walks of life effective ways are created online to enable that kind of activity. Therefore, we developed Adoption Link, which is being used by over 80% of local authorities in England. So far, it has matched over 250 children with families, and it is also finding placements in all four nations in the UK, which is significant.

[Steve McCabe]

Q 18 We are frequently told that these proposals are designed to address the problem of the 3,000 or so children who are languishing in the system and could and should be adopted. Where does that figure come from, and is it accurate?

Hugh Thornbery: Shall I answer that question first? First, the number of children waiting is declining. That is probably good news, if those children are being found families; but it is certainly so that too many children still wait and wait too long. We also have the issue of the number of children subject to reversal decisions, who start off with a plan for adoption but for whom the plan changes, often because the right family cannot be found. That amounted to 1,450 children last year. In terms of the accuracy of that figure, it comes from the quarterly local authority returns and the voluntary agency returns that come to the Adoption Leadership Board. There is a 100% return, which I see as a member of the board, so we must trust that the information being provided is correct. However, it does not seem to fit with the number of children who are being promoted for placement, both through the national adoption register and other matching agencies such as Adoption Link or my own service, Children Who Wait, which Adoption UK runs. Although there is a question mark about those figures, however, it is definitely so that too many children are waiting too long—hence the determination of the previous and current Governments to do something about that.

Andy Leary-May: There is either a question mark about the figure itself or about just what the local authorities who have those children are doing for them at the moment. As a best-case scenario, 1,000 children are currently either on the adoption register or on Adoption Link that I run, which is only a third of the children that are waiting. So there is a question about whether it is the accuracy of the figure or not. I am not sure.

[Steve McCabe]

Q 19 I do not know whether you heard the earlier evidence, but we were told that voluntary adoption agencies consistently achieve better inspection ratings than local authorities. Do you have any concerns that voluntary adoption agencies could be marginalised by these proposals?

Hugh Thornbery: I do have a concern. It is definitely the case, if one generalises, that the voluntary adoption sector demonstrates a higher level of quality across the sector than local authorities are able to achieve. That does not take away from the fact that some local authorities do exceptionally well. We have heard, as part of the justification for the clauses in the Bill, that some agencies are too small. The first point I would like to make is that there is no necessary direct correlation between quality and size, and it would be tragic if we lost some of the real expertise that exists within some of the smaller voluntary adoption agencies, which focus particularly on trying to find the right family for some of the hardest-to-place children.

Because my organisation is UK-wide, I have been involved in developments in Wales that have led to a national adoption service and the development of five regional agencies, rather than 22 individual local authorities doing adoption. It has been our experience there that the voluntary agencies were left on the margins of that change process and found it very hard to have a say, despite the fact that they were delivering high quality and were placing about 20% of the children placed each year. So that risk does exist. The proposals set out in the Bill do nothing to reassure me, necessarily, that we will not lose some highly efficient and effective voluntary agencies as a casualty of this.

Andy Leary-May: Yes, I would urge caution as well. There are a lot of things that are working well in adoption, and if the powers in the Bill are used, we should be very careful not to lose some of those things. They include the work that goes on in voluntary adoption agencies and the skills and specialisms that exist within them.

[James Berry (Kingston and Surbiton) (Con)]

Q 20 How can we avoid voluntary adoption agencies being marginalised? You have both said that that is a risk.

Hugh Thornbery: I think one of the things that mitigates that risk is the investment that the previous Government and this Government are making in the capacity building of the voluntary sector. This comes at a very difficult time for the voluntary sector, with the steep decline in the number of children, which creates incoming cash-flow difficulties for voluntary agencies. So there are other challenges for the voluntary sector at the moment, as well as impending regionalisation.

The other way of dealing with this goes back to some of the questions and answers I heard in earlier evidence around the criteria used in determining what direction should take place if the need arises for the Secretary of State to direct. Prior to that, it would be very helpful if the Department were able to find a more bottom-up, locally driven approach. That is not, I think, something for legislation, but perhaps for guidance, to strengthen the role of the voluntary sector in the discussions and developments that take place at a local level. That happens exceedingly well already in some regions. I was in Yorkshire and Humberside the other day for a meeting at which all the voluntary adoption agencies had been pulled together by the consortia. It happens far less well in other areas. The risk is not across the board but particularly in some areas of the country, where there is perhaps no culture of engaging the voluntary sector.

[James Berry]

Q 21 So your concerns are capable of being dealt with within the framework proposed here?

Hugh Thornbery: There is nothing in the legislation that would deal with my concerns. It is a matter of what else there is. There is encouragement, clearly, in the paper that the Government have produced, “Regionalising adoption”. There are examples of where the voluntary sector has achieved some success—Coram is a good example—but it is too weak at the moment, and I think my colleagues in voluntary adoption agencies are feeling really quite anxious about the next year or two, compounded by their current difficulties with the fall in the number of children.

Andy Leary-May: I do not really have an answer as to how that risk could be mitigated—I think it ought to be. I certainly think that what this is trying to fix should be made clear. I agree that there should not be too much detail on how it is achieved, but what we are trying to achieve and what problems we are trying to fix should be made clear.

[Mrs Lewell-Buck]

Q 22 Good afternoon. As you are aware, adoption is only proposed for a child after all other avenues have been explored. Do you think that some of the money that the Government spend on these reforms might be better spent in social work teams, so that they could assess quicker and rule out or rule in family members before they get to the plan for adoption?

Hugh Thornbery: I do not have a particularly strong view. We are clearly in a time when pressure on public expenditure is very severe. The adoption system has two parts to it. It has the part where the assessment of children and the assessment of different options available within the children’s teams take place. Then there are the specialist adoption workers, family finding, supporting with matching and post-placement support.

I think it is entirely right that there has been investment in the areas where it is required within the specialist adoption sector. We still feel that not enough is being done to support adoptive families, but we have seen very good developments such as the adoption support fund and the pupil premium. It is right that money is being spent there because many of those families have been in crisis.

I think there is the opportunity within the proposals, particularly as set out in the Government’s paper, to consider how one might move from adoption agencies coming together to agencies that are not able to deal with a broader range of the aspects of permanence. I think we have some failings in the system at the moment in terms of being able quickly and accurately to assess what options are available and moving as quickly as possible to the right decision, whether that is adoption or some other pathway to permanence.

Andy Leary-May: Yes, I do think that the Bill misses an opportunity to focus on the other routes to permanence and to address that. To answer the question specifically, I think we should spend money on both. Given how incredibly important it is to invest in the future of these vulnerable children and given the benefits to society financially and otherwise, I would say spend money on both.

[Mrs Trevelyan]

Q 23 You mentioned in your written submission that this may prove more difficult for children with complex needs, although it might be successful for children who are less needy. Could you expand on why you think that is the case?

Andy Leary-May: Yes, it is based on some anecdotal evidence, but also on the study that the DFE commissioned in 2010, which is referred to in the briefing paper on this. It points to the fact that, as the study found, some local authorities—some agencies—wait too long to look widely for a match for children. It is quite right that that causes harm. It also specifically pointed out that the larger local authorities were the worst at this. From talking to agencies in my role, I see that there is a tendency for the larger local authorities to feel so self-sufficient in their own supply of adopters that they feel there is less need to look outside for placements.

If you accept the fact that interagency placement is not working, and you do not try to address that problem, in some ways increasing the scale of the agencies would help, because there would be a larger pool. Our service has only been running for a year and we have only matched just over 250 children, but our experience is that half the placements that have been made—and these tend to be the harder-to-place children that we see—are between neighbouring regions. That indicates to me that there are children for whom it is necessary to go outside their region to find the right placement—the right family. I worry that if we increase the scale of agencies, and I think there could be many benefits to consolidating and increasing their size, unless we address the problems that exist—the barriers to inter-agency matching—the children with the most complex needs may wait longer to find a suitable placement.

[Bill Esterson]

Q 24 You said earlier that you wanted to clarify what the problems are that the Bill is addressing. You mentioned issues around children with complex needs; is that the primary one or are there others?

Andy Leary-May: Not defined by who it is trying to help, necessarily, but I think it would be helpful if, rather than looking at the number of adoptions, for example, there were measures looking at the outcomes for the children, if at all possible, and some measure of how agencies may already be collaborating together. We did a quick survey last week of the adoption social workers using our system, and by far the majority of them commented that they felt that they were already collaborating as well as they possibly could. That is not necessarily true in all cases, but I think the possibility that there may be a group of agencies doing everything that you would hope that they would be doing should be looked at. There should be something that would help local authorities and agencies to know if they are doing as well as expected.

[Bill Esterson]

Q 25 Okay. In the last session, I think we heard the suggestion that the Bill will help with other forms of permanence, so even though it concentrates just on adoption, it will help with fostering, residential care and kinship care. Do you both agree?

Andy Leary-May: For me, not to the extent that I think it could. There are still issues in adoption with children finding the most suitable placements, and they are barriers that will probably not be solved by increasing the scale of agencies. Whatever barriers and organisational issues there are within adoption, the same issues are within fostering, and to a much greater extent and affecting far more children. I do not think that we should look at one or the other. It should not be a competition between them as to which gets the focus; not to address the same kinds of issues that exist within fostering would miss a very large part of the picture.

Hugh Thornbery: The Bill itself does not tackle any issues beyond changing the infrastructure that delivers adoption. Very helpfully, and I think this has been a development in terms of Government thinking, the discussion paper, which is what we are hoping will initiate a bottom-up-led approach to this, talks about the potential to move beyond the narrow confines of adoption and think more broadly about permanence. If local areas, in thinking about taking a regional approach, were to exclude too early the broadening out to other forms of permanence, that would be a real mistake.

We have seen over the past 12 months or so, a significant decline in the number of children coming into the adoption system and a big increase in younger children going to special guardianship. That informs us that we are working in an environment where pathways towards permanence can be unpredictable. We have seen significant changes recently, and I think that if we had put a lot of effort into setting up regional arrangements just around adoption, we would be missing a trick. My view is that the opportunity is there at a local level to broaden this out. That would be the right thing to do. I also think that it is right to continue to improve the adoption system. As you heard from Sir Martin Narey, adoption can do things that other forms of permanence cannot in providing total long-term security and continuity for children. We know that the outcomes for those children are better than if they stay elsewhere.

[Bill Esterson]

Q 26 Do you think the Bill helps with or hinders other forms of permanence?

Hugh Thornbery: Looking at the legislation, I think it forces people to think about adoption, but it does not necessarily hinder the development of a broader approach to permanence. I say elsewhere that the Government are encouraging that in the paper they produced. It is quite difficult to think about how the same degree of direction as is contained within the clauses of the Bill could be applied to wider permanence. I think it is easier to focus that direction on a document. Whether that is the right thing or not is questionable.

Andy Leary-May: Could I add that local authorities that have decided to treat permanence holistically have already created permanence teams? For those local authorities, if they are required to form an adoption service jointly with others, that may create a separation.

[Mrs Flick Drummond (Portsmouth South) (Con)]

Q 27 How do you think the local authorities will work in this regional way? Will it mean that they work better with and have better relationships with voluntary organisations?

Hugh Thornbery: The opportunity is there for better relationships because we will change the way that things are done at the moment. As I said earlier, there are varying degrees of willingness to work with the voluntary sector in different parts of the country. Local authorities and regions have different cultural approaches. I would hope that every region would be carefully considering who the potential constituent parts of a regional or sub-regional approach could be and fully involving them from the beginning.

The other critical thing, which I have not heard discussed at all and is mostly missing from everything that I read, is what adopters think about this. Inevitably, I would say this, representing so many adopters through our membership: what really struck me during Adoption UK, having had previous experience with adoption, is just how often I heard complaints about being ignored, not listened to or done unto. There is a risk of missing the opportunity of involving adoptive families, who are the ones who can tell us, from the best possible position, what is required, what good would look like, what does not work well at the moment and what would improve the quality in the future.

Andy Leary-May: On the point of what adopters think about it, which is very valid, we did a quick survey last week of the adopters using our system. About 600 responded. There was a lot more optimism for the changes that could be brought about through regional agencies among adopters than the social workers that responded to the survey. Due to the current issues within adoption, for adopters, a lot of whom have been waiting for a very long time and are desperate to find a family, there may be some sense of feeling that anything will create an improvement compared to where they are now.

I hark back to a point a little while ago about choice for adopters; that was a concern that I had and asked the people using our system about. It was interesting that 40% of the respondents said that, at some point, they had had cause to consider changing agency because of the experience that they were having. The ability to look to a different agency is important. If we lose that, we need to be careful that there is still some recourse for adopters at any point in their process if they feel that they are not being treated well.

[Mrs Drummond]

Q 28 Going on to adopters, what do you think about the support for them? Are you quite happy that there will be enough support for the child and the adoptive parents if people are adopting from another region quite a long way away?

Hugh Thornbery: All the evidence we have is that support is patchy, inconsistent and, overall, not good enough. Julie Selwyn’s excellent research, “Beyond the Adoption Order”, which was published last year, highlighted for all of us the fact that, while adoption is generally a very good thing for children, too many families are struggling with extreme behavioural issues and the like.

The implementation of the adoption support fund has been an incredibly important step for what it provides, for adopters seeing the Government recognising that there was a need, which I do not think was properly recognised before and, as was mentioned previously, the pupil premium in schools. There is still some way to go, and I note with interest an amendment to the Bill that would aim to achieve a duty to provide. For my members, a duty on the local authorities to assess a child’s needs on request then not translating into a duty to provide to meet those needs is still lacking. If addressed, that would help us, particularly with the matching of what we term “hard-to-place children”, who we know will have long-term, enduring needs.

Opportunities are also missed and more could be done by way of education, which is the top topic raised with us by and discussed among members. I would have liked to have seen in the Bill the opportunity for extending the role of the virtual school and the virtual school head to include children adopted from care, as well as looked-after children. Some local authorities already do that voluntarily and it has been working extremely well, but we would like to see that extended. There is still a shortfall by way of support, although there have been significant improvements over the past couple of years.

Andy Leary-May: For me, support, more than matching, is probably the biggest area of potential improvement that agencies have in coming together and collaborating. We talked earlier about the barriers that exist to one agency placing a child with an adopter from elsewhere. One barrier is how the policy and practice and provision of support can vary between the different agencies. To the extent that a placement may happen within a larger regional area, if there were one agency that had a larger range of specialist services because it had come together and if those support services could be shared within a bigger area, that would be a positive change, but there would still be the issue of the placements that happen in neighbouring regions and how support might be provided between those placements.

[The Chair]

Thank you very much. I will call the last Member to ask questions in a minute. What you are telling us is very informative, but can you be slightly more concise? We have very few minutes left.

[Kevin Brennan (Cardiff West) (Lab)]

Q 29 Thank you, Sir Alan. There is only one clause in the Bill about adoption. In theory, what should happen after this session is that we look at your evidence and then think of any further amendment or improvements that might be made to the Bill. Unfortunately, because clause 13 is being debated on Thursday, we are out of time for that, but the Chairs have indicated that they will look favourably on any amendments that we might submit, even at this late stage, before Thursday. Is there anything that you think should be added to the Bill to improve it by way of an amendment or new clause?

Hugh Thornbery: The two things that I have mentioned: the duty to provide adoption support on the basis of an assessment of need and the extension of virtual schools to cover children adopted from care as well as looked-after children.

Andy Leary-May: For me, it would be an extension of what the Bill focuses on to cover other forms of permanence. Also, is there any way to inject some degree of required caution about how the power might be used? Rather than having a blanket movement and assuming that it will create improvement in all areas, maybe it could start a little more cautiously and take it step by step.

[Edward Timpson]

Q 30 In the Children and Families Act 2014, we took a backstop power in relation to the recruitment of adopters, so we could ensure that enough came forward who could be assessed and approved for the children still waiting to be placed for adoption. We have not had to use that power, and we have been successful in increasing recruitment by, I think, more than 27% in the past 18 months to two years.

This power widens it out to include matching and support, which we have discussed in this session. Based on the fact that there are already good working relationships between local authorities and consortia, which often include voluntary adoption agencies, and based on our statement on page 12 that, as we articulate in our paper “Regionalising adoption”, we need to harness the important role of voluntary adoption agencies in forming regional adoption agencies, how confident are you that in the next few years, through the work of the Department, yourselves and others with an interest in getting it right, we can ensure that we scale up services in all those areas so that we do not need to use the power on recruitment, as we have not yet had to do?

Hugh Thornbery: I am confident in the sector’s ability to improve. The examples that you have given have demonstrated that with the right degree of encouragement, and sometimes financial support, the system has been able to transform itself in terms of reducing delay, increasing the supply of adopters, improving adoption support and so on.

I think that there are systemic and cultural barriers to moving from those single entities working in partnership with each other to entities coming together to form a new entity. There are issues of governance and accountability. I think that we have seen some progress toward consortia working well. The progress that has been made toward a more formal consolidation has, in most cases, got quite close to achieving it and then stepped back. We need to understand why that is happening. I think it has to do with some of those issues that I have just mentioned.

Andy Leary-May: Within matching, in some ways we are already there, in that a local authority’s ability to have visibility of available adopters is already there. That was why we built our system, and it is there. It is about the decisions made as to which placements they go for. I do not think that those problems will be solved by regionalising agencies and it is important that they are addressed. If there were regions that for whatever reason do not come together as a regional agency, those other problems would still need to be addressed. But in either case I think there will be problems.

I think it is important to remember that a local authority may be willing to look widely when it is looking for a match for children, but local authorities do often hold on to their adopters. They need to be making adopters available from the earliest point, because otherwise the pool of adopters will never be big. I think that could be changed in other ways.

[The Chair]

Mr Thornbery and Mr Leary-May, we are very grateful for the evidence that you have put forward to us today. We may be in touch again if anything crops up from that evidence or if we need something further. Thank you very much for your attendance. That concludes your participation.

Examination of Witnesses

Alison O'Sullivan, Anna Sharkey and Andy Elvin gave evidence.

15:41

[The Chair]

Q 31 Ms O’Sullivan, Ms Sharkey and Mr Elvin, we will allow you to present your CV to the Committee and then the Committee will have a variety of questions that it hopes you can answer.

Andy Elvin: Afternoon, all. I am Andy and I am a social worker by profession and background. I am chief executive of the Adolescent and Children’s Trust, TACT. We are a fostering and adoption agency who look after about 630 young people in foster care across England, Scotland and Wales and we make somewhere between 50 and 30 adoptions a year. Most of our adoptions are with black and minority ethnic adopters and with adoptions of sibling groups. I was a foster-parent in the United States during the 1990s, so I have seen this from both angles.

Anna Sharkey: I am Anna Sharkey, the chief executive of Adoption Focus. We have existed for the last six years, having come previously from Father Hudson’s Society, the Catholic adoption agency—we moved out and came out as a separate agency. I grew up in a family that fostered and adopted, so have also seen it from the other side.

Our central office is near Birmingham, so we are in the west midlands. We have three offices; we are based in Staffordshire and Oxfordshire as well as the west midlands. We are part of the west midlands consortium, which comprises 14 local authorities and now three voluntary adoption agencies. I am chair of the west midlands consortium. I am also chair of the Midland Family Placement Group, which also includes the east midlands, and I am vice-chair of our adoption leadership board.

Interestingly, in terms of regionalisation, because Adoption Focus was a recipient of an expansion grant from the Department for Education we were able to become equal partners in Adoption in the Black Country, an existing sub-consortium of the west midlands consortium, where four local authorities—Walsall, Sandwell, Wolverhampton and Dudley—are working with us on joint recruitment, training and assessment of adopters, who are shared between the region. We were included to increase their sufficiency. Because we cover a wider geographical area, it is hoped that children can be placed also in the Staffordshire and Oxfordshire region, and that our adoption support provision can be utilised as well.

Alison O'Sullivan: Good afternoon. I am Alison O’Sullivan, the director for children’s services in Kirklees in West Yorkshire. I am also the president of the Association of Directors of Children’s Services, representing 152 directors of children’s services across the country.

I began my working life as a social worker in the 1970s. I have worked in social services departments and in the health service. I was a director of social services in Bradford for four years and I have been the director in Kirklees since 2006.

[Steve McCabe]

Q 32 Good afternoon. Do you have any views on governance and accountability for these new regional arrangements?

Alison O'Sullivan: You are looking at me. Would you like me to begin to answer? The points made by the previous speakers were quite important here. I think it is really important that we do not get entangled with governance. It will be necessary, as has happened with the existing collaborations that have already been formed, to be clear about where the responsibility sits and also how the necessary investment and funding of those arrangements is going to work. We have the experience of good arrangements that have worked for some time to learn from. It is really important, though, that we do not get bogged down in that.

Anna Sharkey: From our point of view, when we entered into the partnership with ABC—Adoption in the Black Country—we had to spend quite a lot of time looking at what their working agreement was because the four local authorities’ legal status was very different from ours as a voluntary adoption agency. So we have a formal agreement that was drafted and agreed by the local authorities with us. Obviously, in terms of the governance from our board of trustees, their input is somewhat different from the responsibilities that local authorities have, but we have found a way to manage that.

Andy Elvin: The only thing that I would add is our experience of fostering arrangements where we are on contract tenders throughout the UK. There is sometimes a temptation for local authorities to return to try to vary the terms of tender, usually—in fact always—by lowering the price. That can be an issue for voluntary agencies if they have agreed to provide services on adoption at a certain price and then it is returned to six months later to try to lower that price. That could be difficult, so I would want the contractual arrangements to be very clear.

[Steve McCabe]

Q 33 Thank you. You have all got different experience of the issues of placing children. Do you recognise the problem of the harder-to-place children? Who in your judgment are harder-to-place children, and how will these proposals specifically help them?

Andy Elvin: I am very wary of labelling children as harder to place. Generally, it is not that children are harder to place; it is that we as a state have failed them at some point. There are far too many children who undergo multiple placements, and there really is no excuse for that. Often first placements are made in an emergency; it can happen when you do not know the family or late on Thursday and you go with the carers that you can find.

When you are into the second and third placements, there is no excuse for not getting that placement right. It is children who are labelled harder to place who tend to be in their fifth, sixth, seventh placement. It is not their fault. They have given up on making relationships with adults, which makes them very difficult to care for, no matter how skilled the carers. My worry about this move and this legislation generally is that it ignores that permanence for the vast majority of children who are looked after is not adoption. It is long-term fostering, it is being looked after within the extended family and, for a certain number of children, it is residential care.

We cannot separate out permanence options, because providing long-term, stable, predictable families for children is what we should be doing. We should be getting permanence right earlier. If we start separating out and creating a hierarchy of permanence options, we are not going to serve the whole looked-after population well.

What we should really be legislating against is multiple placements. Real failure is failing to find good placements, and permanent placements, for children early. That does not just exist in adoption. The outcomes are just as good for children on SGOs—special guardianship orders—with extended family and for people in permanent, long-term foster care. We must not forget that. The hierarchy that seems to be being pushed for is dangerous, and is very, very clearly objected to by children, particularly children in foster care, who are often made to feel second rate because they are not going forward to adoption.

Alison O'Sullivan: We know from experience that older children—those over the age of five, six, seven—can be quite hard to find the right family for. If it is in the interests of children to be placed with siblings, placing sibling groups can be challenging. And children with particular needs, either because they are traumatised or have special needs or learning difficulties—that combination of things can make it harder to find the right family. But certainly from a local authority point of view, we do think it is important to persist in trying to find placements for those children. It can take longer.

If the emphasis on making early and speedy decisions, which is absolutely right for the vast majority of children, were to deny those children the opportunity of a permanent family, it would be an unintended consequence. We are making judgments in each individual case. For some children, we will try very hard for a longer period to find them a placement and that will be a great success. They will not necessarily be waiting in an unsatisfactory situation. They might already be with very caring foster-carers that they may have been with for some time, but their need is for permanence, and if it takes us 18 months to find them that permanent family—that forever family—that is what we will do.

Anna Sharkey: In terms of the experience that my family had, the fostering that was started in the late ’60s was for pre-adoption babies. We would have two or three at a time for six weeks, then they would move to their adoptive parents. As we moved into the ’70s, the children placed with my parents had more complex needs, and they are the types of children that we place for adoption. By “more complex” children, I mean older children, sibling groups, children who had experienced significant abuse and neglect, and children who were born drug withdrawing and with alcohol problems. Those were very different in terms of adoption outcomes, because the adopters that we had in the late ’60s and early ’70s were looking for those little babies who were going to be fairly straightforward, and the children became more complicated and more complex.

Our agency has always specialised in harder-to-place children, and that has been to do with the supply of children. Local authorities needing to place the relatively straightforward child do not need to come outside of their internal resource, so they will come to the voluntary sector to find their harder-to-place placements. The children that we place, predominantly, are over the age of four, are in sibling groups or have disabilities.

Of the placements that we have undertaken since we have been operating, we have had 68 single children, 45 sibling placements of two children, and five sibling groups of three. The youngest was six months old, but that was the youngest child in a sibling group. The oldest child we have placed was 10 years and two months. It is a wider range and they are children who bring with them many more complex needs than those very little people to start off with, which means that they have many more needs when it comes to the longer-term support for their adoptive families.

[Bill Esterson]

Q 34 May I pick up on the point you were just making? What needs to happen to get more people to come forward as either adopters or foster-carers? Are there issues around education, awareness and being much more honest with people, or is something else needed to increase the number of people available?

Anna Sharkey: It is interesting that we have had an increase. There is the recruitment activity, which was very definitely promoted. First4Adoption was very involved in that—the education and highlighting options for people. The fact that a very different cohort of people is coming forward as potential adopters and foster carers has been significant.

In terms of bringing more people forward, the education challenge is about which children actually need placements, in comparison with where someone’s starting point might be in terms of the type of family they thought they were going to be. That is the bigger challenge for adoption agencies and fostering agencies in managing the longer-term outcomes for those children. That stage becomes more of a challenge.

Alison O'Sullivan: It is important to help prospective adopters to have in view the kinds of support that are available. On the one hand, we should be being more direct about the sorts of needs that children requiring adoption may have. But in the same breath we need to be able to say, “And this is the kind of help that you could reasonably expect,” which will include financial support in some circumstances. It is important that we raise awareness but are also equipped to support those more complex children over a longer period of time.

Andy Elvin: I would echo that point about support. It is not just about recruiting carers; it is about keeping them. That is with foster-carers, doctors and those family members taking children on special guardianship. Far too often the support is not there—it is not there in a timely manner, it is not there in a non-judgmental manner—and that is what we need to get right. Our job is to support the placement. Sometimes the mistake is made of thinking that the child protection task is the main task. That is 10% of the work; 90% of the work is helping that child to recover from trauma and go on to have a successful adult life. Far too little support is given post the permanency placement order, whichever order that happens to be.

[Bill Esterson]

Q 35 You mention the trauma—would you comment on the state of mental health services and support from child and adolescent mental health services?

Andy Elvin: The biggest complaint that we get from our foster carers, the No. 1 complaint, is the lack of support from CAMHS and from other related physical health services—late assessments, long waiting lists, lack of support in an appropriate manner, lack of support in their postcode or their region—that is usually the No. 1 complaint. No. 2 is generally poor information given by the placing authority, which does not flag up some of the issues that they find they are dealing with in their home 24/7.

Anna Sharkey: I would say that it is varied. We place children all over the country and it is different depending on where they are. Some CAMH services are very good, some are very overstretched, but there are also other services that are available for children. The adoption support fund is a really important development and how that pans out over the next few months will be very significant, and how those assessments work. One of the things that the Bill talks about is the responsibility for undertaking those assessments of need for children. Those need to be done so that adopters feel that they are being listened to. Certainly one of the most important messages that came out of the recent research about violence by children against their adopters was that adopters felt at last that somebody believed them and that they were being listened to. If that is something that is coming through, then the adoption support fund is significant and the different sorts of services that are available through it are important. That is what we need to be supporting—including how it is assessed at an early stage.

Alison O'Sullivan: I think that it is important that universal services are tuned into the needs of adoptive children and adoptive families. Mention was made by previous witnesses of the importance of support in school; raising awareness in schools for all adoptive children is important. The virtual school headteacher may have a role, quite a complicated one, and some discussion will take place on how effective that might be, but mental health support for children and young people is critical. I am hopeful that the “Future in Mind” paper—

[The Chair]

Mrs O’Sullivan, can I ask you to raise your voice ever so slightly? It is not your fault; the acoustics are really bad in this room, as is well known to all the Members, and it would help us if you could speak up a little.

Alison O'Sullivan: I will speak up. The “Future in Mind” paper recently published about children and young people’s mental health and wellbeing services has a whole chapter devoted to recommendations to improve support to children with particular needs and it talks about adopted children. Arguably, some of the support that people might look to from the adoption support fund ought to be met through mainstream child and adolescent mental health services. If they are improved in the period to come then that will help.

[Peter Kyle (Hove) (Lab)]

Q 36 I have only one question. Andy, to follow up on a comment you made earlier, you described the failure to place, and powerfully described how that was not the fault of the child but the fault of the system. Who pays the price for failure, what agency pays the price—or does an agency pay the price for failure, as things stand? Will this Bill change that?

Andy Elvin: To take your second question first, no this Bill will not. Who pays the price? The child, first and foremost. The child pays the price through their blighted life. We then all, as society, pay the price because these are the young people who are in Feltham young offenders institution at this moment. They are the young people who are known to our mental health services. They are the young people who go on to become homeless, who do not have regular employment and who have chaotic lives. We are all paying the price, and the cost of that is far higher than investing in the young person when they are seven, eight, nine or 10 years old in a placement that will meet their needs and turn around their outcome so that they can achieve a life that is in line with the general population, which is all we can aim to do.

The reasons behind that are largely the way in which short-term funding rules the day in a local authority. On 31 March the world ends and it starts again in April—you are looking to save money in-year, whereas children have a pesky habit of growing older and carrying on until they are 18 and then 21 and just staying put. We really have to invest in the lifetime of the child. If we have to make a more expensive placement early on, yes, it may impact on the in-year budget, but over the course of the child’s lifetime—legislation is for the best interests of the child in their lifetime, not until financial year’s end—we will save an enormous amount of money.

The very welcome review by the Prison Reform Trust that Lord Laming will be leading will show again that the children who are more likely to offend are not children in care, but those who have had multiple placements and the associated disrupted education that goes with that. There really is no excuse for us to continue to have children in multiple placements. My concern is that the continued focus on one form of permanency ignores the other ones. We need to get it right for all 93,000 children in the care system across the UK, not just the 5,000 a year who go forward for adoption.

[Peter Kyle]

Q 37 So if you were in the fortunate position that we are in of being able to table amendments to the Bill, or to add something to this legislation, what would it be?

Andy Elvin: I would replace the word “adoption” with “permanency”, in the first instance, at all points of the Bill, then focus far more on support. I would add a part that looked at placement disruptions and the number of placements as being a key indicator on which local authorities should be measured. It is that part of permanency that is key, because when a child is into their fourth, fifth or sixth placement that is when we begin to see really toxic outcomes. We do not need to go that long to get it right for children, because foster carers and adopters and relatives who are capable of holding and caring for that child are available if the right support is there for them post-permanency.

The other thing I would like to see the permanency teams do, and I would like to see either the local authority or regional permanency hubs do, is offer support in a non-judgmental way. If the grandparent looking after a child sticks their hand up after five years and says, “Secondary transfer has come around; we are really struggling now”, support is provided speedily and in a timely, non-judgmental fashion. Too often, families have to go back through the child protection groups, and it is just not acceptable.

[Peter Kyle]

Q 38 I have other questions, but would the other witnesses like to comment on either the failure aspect or the contribution aspect?

Anna Sharkey: Obviously, what we are discussing is the adoption clause and the multiple placement changes in fostering. Having managed a fostering service for some time and knowing the sorts of complex areas being dealt with, I accept that adoption constitutes a very small proportion of the population of looked-after children, and it has had a huge amount of focus. There has been a lot of attention on adoption, but part of the reason is that the outcomes for adopted children tend to be good. The disruption rate is still very low. We know from Julie Selwyn’s research that there are families that clearly continue to have difficulties in their adoptive placements, but most of them hang on in there.

The outcomes for children are very good, and we know that the children involved will be those who have had the most trauma, because if they had not had the most trauma, more would be being done to try to maintain them in their family of origin. These are the ones where there is often absolutely no hope of achieving that within their family. Therefore, by definition, they are going to be the little people who have experienced the most difficult things. Adoption, by achieving what it does for them, is hugely significant. The fostering bit, and the whole role of public care, is another whole area and while I am not saying that it is muddying the water, I think it will get very complicated if we discuss it here.

Alison O'Sullivan: I would agree with the general direction of those comments. I have nothing to urge specifically for legislation, but perhaps for guidance and the manner of implementation. First, it is really helpful to have a spotlight on adoption, but we can do more than one thing at a time. We need to keep the spotlight on adoption, but also look more closely at permanency, as has been urged by the other witnesses—I absolutely agree with that. The second thing I would urge is that we make real the spirit of local determination, because there will not be one solution. It is important that as we do that, we keep a very close eye, collaboratively, on the impacts on the whole system.

This is quite a volatile, fluid market in some places and having an overview of that and how we manage collaboratively the dynamics in that market will be key to its success. Otherwise, we will have unintended consequences in creating something strong in this bit of the system washing back into another bit of the system. That is not what any of us want. It will be an art rather than a science, but I think if we work collaboratively we can do that.

My third point would be to build on the arrangements for collaboration. We have local adoption boards coming into place. I have been visiting the regions over recent weeks, and the boards are starting to gain traction. Many of them are looking broadly at permanence. They are keeping their eye firmly on adoption but looking at it within that broader context. By tying those together with national oversight we will be able to keep in view the important dynamics in the system.

[Kevin Brennan]

Q 39 It strikes me that given that improved quality of parenting, higher aspiration, more stability and a better voice for young people who are looked after in care should, as ever, be our principles, we should have had some young people giving evidence to our session today. It is all of our faults for not making sure that that happened, as it would have been useful. If there is any written evidence, we should take very close account of it.

While you are here, Alison, I wonder if I might ask you as a director of children’s services who also has some responsibility for education—the Bill includes clauses on education—whether you think the regional schools commissioner in your area has the capacity to increase their oversight of schools as envisaged in the Bill, from 500 academies or so in your area to about 2,500 schools under their new responsibilities for issuing warning notices and, on top of that, having responsibility for dealing with coasting schools? Do you think they have the capacity to do that with a maximum of about seven staff?

Alison O'Sullivan: I do not imagine that the existing level of resource into that part of the system would be able to cope without some additional investment. It is not for the local authority to determine the support to the academy part of the system. What I would say is that there is an untapped resource of collaboration at a local level. If we look at the shared ambition that we have to drive up standards in all schools in all categories, we should be exploiting the potential to collaborate more closely across the wider system.

[Kevin Brennan]

Q 40 On that point, do you think that DCSs should be members of the teacher advisory boards, given that they are now taking over responsibility around maintained schools as well?

Alison O'Sullivan: I think we need the right people in the room to have the right oversight of those systems on the right scale. There are some difficulties with geography which I think would bear examination: the oversight of the academy part of the system does not sit easily in terms of coterminous boundaries with other administrative boundaries. That creates complexity that we could perhaps design out of the system to good effect. I personally feel that there is a great untapped resource of collaboration, because the expertise for improvement sits very largely within schools, but we need to be able to join that up across the whole of the system.

[Kevin Brennan]

Q 41 Could I ask finally whether you think it will be necessary for the things contained in the Bill to be achieved on the school side for the staff to be transferred from local authorities to the regional schools commissioners?

Alison O'Sullivan: No, I do not think that structural change is the answer to those challenges. It is certainly something that could be considered but why would you put time and energy into structural change if you could achieve that without it?

[Suella Fernandes (Fareham) (Con)]

Q 42 The provision on adoption aims to try and solve the problem of long-term decline in adoption. At the moment, as we all know, it is happening at too small and too localised a scale. It is hoped that the attempt to regionalise agencies and bring them together will encourage agencies to cast their net more widely, reduce the problems of delay, and encourage local authorities to look outside their immediate local area. We have heard a lot about this today. One problem which has been cited is the reluctance of local authorities to place children outside a particular area. What appetite do you think there is for looking further afield geographically?

Anna Sharkey: I think that there is an appetite. Local authorities met the requirement to up the game when it came to recruitment, and they were very successful. Local authority social workers work hard to do the best they can for the children they are responsible for, and that is what they aim to do. There are difficulties in the system as it exists at the moment, and I think that, because clearly there are children waiting in the system. I have adopters who have been approved and are waiting—it is not happening. Adoption Link has achieved a huge amount by getting adopters much more involved in the adopter-led linking process, and that has been very positive.

There some things that still prevent movement out of a local authority region. These are often to do with budget constraints, because local authorities are completely stuck financially. There is an historical sense that buying a placement from outside is very costly. Andy talked about children who sit in the care system and experience multiple placement moves, and who are then over-represented in mental ill health, the criminal justice system and underperformance at school. The cost to all of us of not getting it right at a much earlier stage is absolutely phenomenal, not least of which is the impact on that individual child and the rest of their family.

Getting it right is very important. At the moment the structure includes an inter-agency fee budget, an adoption budget, a fostering budget, a budget that does something else relating to supporting kinship care arrangements, and so on, which can make it very difficult to be child-focused, and to look at the best option in the most timely way to meet the needs of the child as soon as possible. Anything that tries to sort that out can only be a good thing.

I have some caution about the criteria on which that regionalisation would happen and how big a region would be. There is talk in the paper of it being around the 200 mark in respect of children. We are dealing with a very personal aspect of public care, and adopters need to feel that the people they are working with know them individually. We want those children to be known individually by the social worker who is advocating on their behalf, so getting lost in numbers is a real concern. We also know that where people are stuck with chunks of money that do something or boundaries that do something else, or if social workers are not prepared to go outside because someone else is saying “We have run out of money” or “It has got to be in-house” or “We have a family coming through in four months’ time who might be okay”, that will build delay into the system. If we can improve that, it has got to be better.

Alison O'Sullivan: It is really important that we do not build new barriers. If we are widening the scope of the way in which people collaborate to make things more effective and more efficient, then we must not have another set of boundaries that are just on a slightly bigger scale. It is not only how we create those collaborative arrangements, but how they interface and interrelate with each other as we go forward. That is one aspect that will need to be managed.

Andy Elvin: I would go back a step regarding the decline of adoption numbers. If your measure of success is an increase in adoption, then you are asking the wrong questions. That is not what we are after; we are after an increase in permanence and an increase in better outcomes for children. As the adoption numbers have fallen slightly, we have seen special guardianship orders rise. SGOs, in particular those for children under five, are largely made to extended family members to care for their relatives. That was exactly why SGOs were introduced. It is not a bad thing that they are now being used where there used to be intra-family adoptions, because they take some of the heat out of that conflict between different generations of a family.

We have a group of experts which was set up by the Department for Education, which will start meeting to discuss the rise in special guardianships. It will also look at the appropriate use and the assessments behind SGOs. Until that finishes in the autumn, we do not really know what the story is behind the rise in special guardianship, particularly for the under-fives.

The other side is that there is a huge rise in surrogacy in this country that is completely unknown and completely unreported. People who used to come forward for adoption are choosing international surrogacy, because it is available and affordable and more assured in terms of getting a younger child—a baby—than adoption. There are all these threats to adoption out there, but simply taking adoption numbers as your measure of success is to look at entirely the wrong thing. It is outcomes for children as a whole that we are after, and success comes in many forms. I know many complex children we look after in long-term foster care who have absolutely fantastic outcomes.

Foster care does not stop at 18; it will not stop at 21, when they are staying put. Our foster parents are godparents to their foster children’s children; they give them away at their weddings. It very often lasts for life in the same way that adoption does.

[The Chair]

We still have a few more questions to come and we have very little time, so can I ask the contributors to be a bit more succinct in their answers?

[Louise Haigh]

Q 43 In the written evidence, we were told that the best way to achieve permanence is with low staff turnover and support from the best and most appropriate workforce. Do you think those are accurate descriptions of the environment that local authorities and adoption agencies have found themselves in during the last few years?

Alison O'Sullivan: From a local authority point of view, the difficulties in attracting and retaining qualified social workers are fairly well known and documented, but adoption is an area of work that tends to see more stability in terms of workforce. That is certainly the case in the authorities with which I am familiar. We tend to have people staying for longer in that work and I agree that it helps to contribute towards the quality of the work done and also maintains ongoing relationships.

[Louise Haigh]

Q 44 The British Association of Social Workers has said that the Bill will contribute to demoralising social workers. Do you agree?

Alison O'Sullivan: I cannot see how.

Anna Sharkey: I think retaining staff is very important. We have quite a secure staff group, but we have also done quite a lot of growth, which has been to do with the DFE expansion grant. That is significant, but we have a very definite system through which adopters are seen right the way through by the same social worker. That is because it is about building trust and rapport with the person whom you are going to trust with very personal information and about making you into the family you want to be. There has got to be that professional relationship, but that relationship also has to be with the child’s social worker, and that is often where there can be change and flux, because there is such turmoil in local authorities.

Andy Elvin: We have no problem in recruiting and retaining experienced social workers, although I must say that we recruit a lot from local authorities. I think there is a wider issue—probably not for here—about how many social workers there are in the system when permanence is achieved for a looked-after child. Do we really need a supervising social worker overseeing a fostering placement that is permanent and a looked-after children’s social worker also overseeing the said placement and an independent reviewing officer? Are there too many social workers looking at social workers doing their jobs and not enough actually doing the job?

[Edward Timpson]

Q 45 Can I take us back to the clause in the Bill looking specifically at the point at which the permanence decision has been made and what flows thereafter for those for whom that decision is adoption? I have two points to underpin that. First, we are not proposing something new here. A lot of this already exists. Could you tell me where you have come across a consortium of either local authorities or voluntary adoption agencies and local authorities working together that has impressed you most and that does not happen to be your own?

Secondly, in relation to the specialist support services that we know many children who are adopted need, how is the regional agency adoption approach having a positive effect, where we are already starting to see it happen?

Andy Elvin: We are currently working with the north London adoption consortium and the east London adoption consortium—south London is a regular choice—on introducing something called VIPP-SD, a post-adoption therapeutic intervention that comes from the University of Leiden in Holland. It is used with all adopters in Holland. It is evidence based and tested at country level. We are introducing it with six authorities in London and with one just outside London. We found co-operation patchy, I would say.

We have got six authorities across two consortia; other authorities in the consortia have not signed up to it. That was disappointing, given that the DFE for the CVAA are essentially paying for all this. It is a free and evidence-based service. It is interesting how decisions are made in local authorities, but those that have engaged have engaged magnificently and really well, and got involved very much in the spirit of the intervention. It is going very successfully so far. Local authorities can work together; I do have examples of the contrary, but that is the same in all areas. I do not think children’s services are peculiar in local authorities not working particularly well together.

Anna Sharkey: From my point of view, working in ABC has been really good, a very positive development. I know my local authority colleagues will say that one of the strengths has been that it came from the bottom up. It was local authority social work working together and deciding that was a more efficient way of working, so pooling resources in respect of recruitment and training activity, how we do information events and so on. The next stage, which is really exciting in terms of the pilots and so on, is about how we are making the linking activity work much more effectively, and also looking at post-adoption support provision.

I know one of the previous speakers talked about the importance of accessibility and the transport networks. People need to be able to access their social worker and support that is readily available for them and their children. There are all sorts of things that can happen as a consequence of this, but definitely the bottom-up bit has certainly helped.

Alison O'Sullivan: I will very briefly point to Warrington, Wirral and St Helens, established I think in 2011, because it is the sort of thing the Bill envisages and has been working well. It has improved the numbers and the speed of recruitment and matching. For many years, Yorkshire and Humber have also been running post-adoption support on a collaborative basis across the region.

Andy Elvin: Can I just add that I am on the board of Frontline social work? We hope to be moving into a new region in the north-east, and the attitude of the consortia of local authorities up there has been exemplary in the way that they are working together. It really is very impressive.

[Edward Timpson]

Glad to hear it.

[Steve McCabe]

Q 46 I have heard what has been said about permanence but, given that this legislation is supposed to be about speeding up the adoption process, cutting out the delays and helping match children to families—that is what we are taking evidence on—is there anything missing from the legislation that we should be taking on board and which would really make a difference to speeding up adoption and helping the matching process?

Andy Elvin: When you are in the court process and you have a CAFCASS guardian, you have a judge and everyone is represented, often delays are caused by availability of adoption panels and the panel process. I have often wondered about how much oversight is actually needed in terms of an adoption. There is a question about if you are overseen at a court process, you have an independent court witness in the guardian, and whether that could be looked at. I know working in local authorities that was often the cause of adoption delay; it was being unable to reach panel in a timely fashion to do with court deadlines. I think that is a more systemic problem that has been around for quite a long time.

Anna Sharkey: For me, the concern is thinking about how the financial situation would work. The levelling of the inter-agency fee meant that local authorities obviously charge each other the same amount of money as I charge them, so it was a recognition of the work that is done. If there are regionalised adoption agencies that are all part of that, my view is that the framework under which financial transactions happen is likely to change.

If that is the case, my concern would be that we do not have the same sort of framework as in the fostering arena, which you, Andy, have alluded to in terms of spending a huge amount of time trying to do tender documents and different arrangements, depending on who you are working with, which come back and do something later that was not necessarily intended. It is trying to work out what that would be.

[Steve McCabe]

Q 47 How would you stop that happening?

Anna Sharkey: I suppose with some clarity about the funding arrangements for every aspect of the care process for children, so that we did not have the sectionalising of different parts of the process. For instance, if the provision of that bit of money has ended, you have a bit of a problem if you have to plan for a child who needs that service. It needs to be properly costed and sorted so that every party to the arrangement is funded to do it properly for the child and the adopters.

Alison O'Sullivan: The issue that I would shine a light on is not one that I think you would legislate for. It is about the professional confidence and competence of the social work decision-making process. I know that that is already in view in how the Government are working on the broader issues of care planning and decision making. This is a complex and delicate system, with professional and legal decision making involved and so many elements that it is important to have the right confident, strong and professional advice at lots of points.

[The Chair]

Mr Elvin, Ms Sharkey and Ms O’Sullivan, we are grateful for your participation. We will examine the evidence that you have given and deliberate on it. We may come back to you about that evidence or, indeed, we may ask you some more queries in the future. We wish you a safe journey home.

Examination of Witness

Russell Hobby gave evidence.

16:29

[The Chair]

Q 48 Mr Hobby, I am pleased that you have been able to come to give evidence to the Committee. May I ask you a couple of favours? First, before we open the question and answer period, would you present yourself and your CV? Secondly, because this is a terrible room for acoustics—you are not supposed to admit to things like that in Parliament, but it really is not very good at all—would you raise your voice a little bit? It would help the Members. We will not be in this room in future—you have been unfortunate, as we have, to land here today. Without further ado, will you present yourself to the Committee?

Russell Hobby: Good afternoon and thank you for inviting me to give evidence. I am Russell Hobby, general secretary of the National Association of Head Teachers. We represent 29,000 school leaders in all phases of education.

[Kevin Brennan]

Q 49 Since time is very short and we do not have the pleasure of your company for long, can you tell us, as succinctly as possible, what you think about the Bill and what you would do to amend or improve it?

Russell Hobby: Okay. In a spirit of constructive criticism, the first issue is whether the Bill genuinely defines what we would normally regard as coasting schools. I think there is potential within the definition for some schools at the secondary level that we would normally regard as fitting the definition of coasting: those with affluent or privileged intakes who manage to achieve over the 60% hurdle but do not make adequate progress on that. It seems to me a better definition of schools that have been average for a long period of time rather than what we would normally define as coasting.

There is an issue in that we are already raising the performance standards while we are still waiting for new standards to be implemented. There is a risk of that being perceived by headteachers as more pressure being added to that. That is magnified by the fact that two of the years over which this is measured are retrospective—they have already delivered their performance for those two years. People complain a lot about not being able to predict what is around the corner in education and they also cannot predict what has happened in the past, to a degree, as a result of this.

We reckon that there are about 700 primary schools and perhaps 400 secondary schools that would fall within the definition of coasting and probably 60% of those—certainly at the primary level—have got a good inspection rating. They will have thought that they had done everything that had been set for them, but now they have a new bar to climb over.

[Kevin Brennan]

Q 50 Do you think that the Government sometimes think it is ultimately possible for all schools to be above average?

Russell Hobby: Not if the definition of average keeps shifting as schools improve themselves over time. It is particularly hard at secondary level, where the exam results are re-normed year on year to ensure that a similar balance of results comes out, so secondary schools can find themselves in a bit of a rat race on that front.

It is right that we should raise our standards from time to time and we should reset that bar. The difficulty is, if the level of pressure on schools is too high—let us face it, they have dealt with five years of quite extreme pressure on that front—some of the effects on education can be negative. Rather than just raising standards, you get narrowed curricula, teaching to the test and people leaving the environment, so you find it harder to recruit headteachers to work in the most challenging schools.

[Kevin Brennan]

Q 51 A final question. Could the whole issue of coasting schools be dealt with in the inspection regime? Is there a danger that there could be confusion about accountability if we have two separate regimes running side by side?

Russell Hobby: That danger does exist. We now have two separate systems with no read-across between the Ofsted categories of “requires improvement”, “good” and “inadequate” and the new definition of coasting. You will find schools in every Ofsted grade that will fit that definition—in fact, I think you will find slightly more “good” schools than schools in “requires improvement” meeting the definition.

There is a risk that schools will feel that they are working towards two distinct and different sets of criteria. We have always thought that schools should be accountable, but it is helpful if they are accountable in one direction and have one set of standards so that they can focus their efforts on that.

[Bill Esterson]

Q 52 If having a good headteacher is the best indicator of success in a school, what would you like to see in the legislation to increase the numbers of good headteachers?

Russell Hobby: We have taken the first step, which is to move away from vague generalisations of what a coasting school is to start to define what coasting schools are. One of the risks was that a lot of schools were looking over their shoulders, wondering whether they were coasting and, therefore, a lot of people were thinking, “That’s not the sort of school that I would want to go and work in” if there were extra pressures arising.

In favour of the legislation and the regulations being provided, although I have my concerns around the definition, we have now got a more graduated response to those schools that are judged as coasting. Rather than the default assumption being that you will sack the headteacher and academise the school, it is now proposed—at least as written—that you will look for a credible plan of improvement within the school and look to partner the school with other good local schools or national leaders of education. Only then will you move down into forced academisation. I am not sure that that message has reached many school leaders yet. If it does, that might reassure some of the people working in these coasting and challenging schools.

At the same time, some of the checks and balances have been removed or are proposed to be removed. The regional schools commissioners now have a great deal of discretion in determining whether the plan of improvement is credible and who the school should be paired up with. A school’s ability to represent and defend itself is not particularly enshrined within the regulations. School leaders will be wondering, “It’s all very well having the challenge, but do I have the chance to make my case or will I be rushed through a change?” I would look at strengthening those aspects, if possible.

[The Minister for Schools (Mr Nick Gibb)]

Q 53 A quick question: are you happy with the concept of using a progress measure and not just an attainment measure to define a coasting school?

Russell Hobby: Yes. It is essential that you use a progress measure. If I have understood it correctly, it is an either/or—a school can demonstrate either high attainment or high progress. If it reflects the approach to the current floor standards, that is good. It is possible for a school to exceed the floor on attainment alone, as currently proposed, which means that a school with a high-attaining intake could benefit from that. For example, I believe that a few grammar schools fall within the definition of coasting at the moment. The balance between those might need to be looked at. I understand that you switch entirely to progress as a measure at secondary level in three years’ time, when we have the new progress 8. In primary, it remains a balance.

I should emphasise that none of us are entirely sure what the progress measures will look like. They have not been used or tested. The level at which the bar is set remains to be defined and is, in fact, defined in retrospect for each of those years. The very structure of the primary progress measure and how it relates to either the reception baseline or key stage 1 has not yet been explored either. There is a lot of uncertainty on what progress looks like when used, but it is the right measure to use.

[Mr Gibb]

Q 54 As a concept, are you comfortable that we have done the right thing and not just gone for attainment?

Russell Hobby: Yes.

[Mr Gibb]

Q 55 May I ask you about the whole concept of coasting schools? As a leading figure in education in this country, do you think we are right to address coasting schools as an issue where intervention may be necessary?

Russell Hobby: If we can agree on a fair definition of a coasting school, it is appropriate that every school should stretch itself and all its pupils to the full extent. Challenging coasting schools is the right thing to do. Whether legislation, academy orders and the process of academisation are the right way to provide that challenge is more open to debate. I have said that I feel you have inserted a few layers before academisation, which is reassuring. That is the right way, but academisation is still there as a backstop.

We do not know for sure how quick the regional schools commissioners might be to say, “I don’t believe in your plan of improvement. I don’t believe in your capacity to improve as a school and therefore I’m going straight to academisation.” Indeed, as I understand it, the Bill permits that to be made as a very quick decision. The evidence that the structural change to academy status will stop a school from coasting is not as strong as the Government might wish. Other interventions might be more appropriate.

[Mr Gibb]

Q 56 Are you not happy that we are using national leaders of education as part of the intervention process, before any decision has been made about academisation, and that that cadre—many of whom are, I presume, members of your association—will be at the forefront of challenging, tackling, helping and supporting coasting schools?

Russell Hobby: Yes. Those first two layers of the intervention are the right ones to have—so, “First of all, prove to me as a school that you can do it by yourselves. If not, work with someone else and then I will look at converting you.” But that is very much what the Government has described will happen, rather than there being any protections to ensure that it happens. I do not believe that there is anything to stop a regional schools commissioner saying, “I don’t believe you have a plan of improvement and I think the most appropriate solution is academy conversion.”

We know that they also have performance indicators around the numbers of academies in their area, or at least they used to. There is a suspicion that it is their preferred solution—it is more than a suspicion; it is their preferred solution in many instances. Sometimes they will be right, but sometimes it will not be the right thing.

I am not clear what chance the school has to make its case. What does a credible plan of improvement look like? How quickly does it have to put the case together? I am sure that the current generation of regional schools commissioners will handle it well, but people change and it would be nice for the Department to be clear on its protocol for how it will happen. Mistakes were made with the academy brokers; they operated somewhat under the radar, without clear agendas and without due process. That alienated a lot of school leaders and tarnished the academy brand. The Government have talked about the urgency of change, but sometimes provoking conflict and suspicion can delay change. You have schools that might otherwise wish to convert to academies digging their heels in because they do not like the way it is being handled.

[Mr Gibb]

Q 57 All the Ministers have made it clear that they want a real approach to school improvement, using national leaders of education and looking at the plans of the schools. You should be reassured on that front. Thank you for your evidence.

[The Chair]

Mr Hobby, there may shortly be a vote and two Members have indicated that they wish to ask a question, so I will take both questions together. Could you sum up quickly, because I think we will leave shortly?

[Suella Fernandes]

Q 58 What is your experience of headteacher boards and what is your view of the impact that they can have on helping schools improve?

[Peter Kyle]

Q 59 In a follow-up to the shadow Minister’s question, you expressed concern about the confusion in the framework for monitoring and evaluation that could result from this. How would that play out in a school and what impact would having different authorities responsible for different areas of monitoring, evaluation and standards have on the leadership of the school?

Russell Hobby: Two quick responses. Headteacher boards are a good idea in principle, but I agree with one of the previous witnesses who doubted the capacity of the current framework to meet all the schools required. You probably need more regional schools commissioners and more boards to support and advise them, and in the long term, see how that plays out. You have to be really careful about conflicts of interest on the headteacher boards though. These are leading academy chief executives and headteachers who may have an interest in some of the decisions being made. I am sure that they all do it from the principle of what is best for the children, but they need to ensure that the perception is there as well. There is a lack of transparency in some of their deliberations and I think that they will need to ensure that they protect themselves against that.

In terms of the multiple overlapping accountability frameworks, I think that is one of the most difficult parts of the system. When you are getting different messages from different people—one inspectorate tells you that you are good, another group tells you that you are coasting—it damages the legitimacy of some of the accountability measures in the eyes of school leaders. What am I—a good school or not a good school? Who is right? One phenomenon that you get in the education system is an amplification of other people’s accountability. Knowing that, for example, as a “requires improvement” school you have three years to improve—it is a fair timescale—but your local authority, knowing that it will be held to account for your performance, may come in after two years and say, “That’s no longer good enough.” Your governing body, knowing that it will be held to account by the local authority, may come in after one year and say, “That’s not good enough.” What often eventuates is that otherwise reasonable timescales—because three years seems to me to be a reasonable timescale in which to demonstrate improvement in a school—get truncated because the same people are accountable to each other. We never chart the different pressures and how they are magnified coming through the system. A streamlined approach to accountability, where schools knew that they had one set of targets, one group of people judging and a right of appeal, would allow heads to concentrate on improving their schools rather than reporting to stakeholders.

[The Chair]

Thank you very much indeed. We will examine your remarks thoroughly and digest them. We may come back to you either on that or other questions. One or two other Members from both sides of the Committee have indicated that they would like to ask questions, so you might get a response back from the Committee. We thank you for your attendance. Members need to be aware that there is likely to be a vote any minute.

Examination of Witnesses

Nick Gibb, Edward Timpson and Lord Nash gave evidence.

16:46

[The Chair]

Q 60 You know the drill, Ministers. We would be pleased if you presented yourselves, your areas of responsibility and your approach to the Bill. Questions will then come from the Committee.

Lord Nash: I am Lord Nash, the Under-Secretary of State for Schools. I am responsible, among other things, for academies and free schools.

Mr Gibb: I am the Minister of State for Schools. I have responsibility for school standards, issues such as Ofsted, Ofqual, qualifications, the curriculum and behaviour.

Edward Timpson: I am Edward Timpson, Minister of State for Children and Families, which includes: child protection; adoption, which is relevant to the Bill; fostering; special educational needs; character and resilience; school sport; and a whole host of other important portfolio areas.

[Kevin Brennan]

Q 61 Nick, why do you have such a low regard for Ofsted inspections?

Mr Gibb: We do not have a low regard for Ofsted inspections. In fact, the Bill makes it clear that as soon as a school goes into Ofsted category 4, the Secretary of State will have a duty to issue an academy order based on that Ofsted judgment alone.

With coasting schools, we wanted to have a range of metrics, rather than the Ofsted judgment, to determine what is or is not a coasting school. The other principle that the Secretary of State set out on Second Reading, and is reflected in the regulations that you saw last night, is that the judgment should be over a period of years. In most cases, it is difficult to have an Ofsted judgment over a period of years. There will be one Ofsted judgment, almost certainly, during that three-year period. Here we have three years of metrics and a school is regarded as coasting if it falls below the bar in all three years.

[Kevin Brennan]

Q 62 Do you envisage that any outstanding schools will be rated as coasting under the definition that you released at 10 o’clock last night?

Mr Gibb: It is certainly possible that a school could be graded as good or outstanding. Thanks to many of the reforms and the hard work of the teaching profession, 80% of schools up and down the country are now graded as good or outstanding. We are trying to ensure that every school is delivering the sort of education that means that every pupil will be making progress to fulfil their potential. That is a new ambition that we are bringing to the education system.

[Kevin Brennan]

Q 63 One of our witnesses this morning has done a bit of number crunching since then. Apparently there are schools that are currently rated outstanding but will be deemed to be coasting under the definition you released. Does it not make a bit of a mockery of an Ofsted inspection if a group of inspectors goes into a school, judges it to be outstanding and, yet, separately the school is then deemed to be coasting? Why should they get an outstanding rating if it is so obvious that they are coasting?

Mr Gibb: We do not know for certain whether those numbers are correct, because until we have the 2016 results we will not know—

[Kevin Brennan]

You said you envisage that it is perfectly possible.

Mr Gibb: It is quite possible.

[Kevin Brennan]

So the question stands.

Mr Gibb: Yes, but, taking the first point first, we will not know precisely how many schools fall into this category until we have had the 2016 results. We will then be able to define precisely what the progress measure is for 2016.

In terms of outstanding and Ofsted, I suspect that we will not find that many. I do not know and I cannot predict that, but we are determined in this Parliament to address the issue of coasting schools to ensure that every child is making the maximum progress they can, and we want to ensure that schools do that. It may be that judgments Ofsted made in a different era—in the previous Parliament, two or three years ago—do not reflect that new ambition.

[Kevin Brennan]

Q 64 Perhaps they should be inspected more frequently.

Lord Nash, how many academies does a regional schools commissioner tend to be responsible for? How will that change under the Bill?

Lord Nash: In total, each regional schools commissioner is responsible for 600 or 700 academies, although they will be focusing only on those that are underperforming. If a school is doing well, they—

[Kevin Brennan]

Q 65 Will they not have to monitor all schools to check whether they are underperforming under the Bill’s provisions?

Lord Nash: The accountability provisions in the Bill are pretty clear, so, if they fall foul of the coasting schools definition, that will be a statistical analysis. They will not have to do any—

[Kevin Brennan]

Q 66 Given their extra responsibility to issue directions, they have a responsibility to monitor all schools to see whether it is necessary to issue a direction as well as to improve schools.

Lord Nash: I am saying that monitoring to work out which school is coasting is not onerous; that is purely a statistical consequence of the accountability measures.

[Kevin Brennan]

Q 67 How much extra resource will they require to perform those new functions?

Lord Nash: They will require extra resources and we will give those to them gradually.

[Kevin Brennan]

Q 68 Can you give us an idea of what you have in mind?

Lord Nash: I expect in time we may need more regional schools commissioners—they will certainly need more people. They are heavily supported from the centre—the Department for Education—which runs very tight teams of six, seven or eight people. They will certainly need an increase in capacity, but we do not want them to become another arm of the DFE; we want them to be fairly tight-run organisations. I have to say that, having visited all of them and sat in all eight of the headteacher boards, they are performing extremely well.

[Kevin Brennan]

Q 69 Are any of the regional schools commissioners coasting?

Lord Nash: I would say not. I have been involved in starting new organisations for 40 years and an early indication of success is early momentum. Frankly, I have never seen a new set of organisations start as well as this, which is not surprising given that they are all experienced professionals who know their regions well.

[Kevin Brennan]

Q 70 Is there a method by which that judgment could be independently verified?

Lord Nash: I am sure there is. We have clear accountability measures set on the RSCs from the Department, but the ultimate test will be the performance of the academies and schools in their region.

[Kevin Brennan]

Q 71 May I ask you a couple of other brief questions? I am looking for short answers. Should membership of headteacher boards be opened up now to headteachers of all schools rather than just academies, or do you regard headteachers of maintained schools as inferior in some way?

Lord Nash: We definitely do not regard them as inferior in any way, but the headteacher boards and regional schools commissioners are responsible for monitoring academies.

[Kevin Brennan]

That is being extended under the Bill—that is the reason for my question.

Lord Nash: It is not our current intention to open them up. Most of them are elected by their peers and we think that that is a healthy approach.

[Kevin Brennan]

Q 72 So you would maintain the ban on maintained school heads being on the board?

Lord Nash: We have no plans at the moment to change that, but you make a point that we will keep under consideration.

16:54

Sitting suspended for a Division in the House.

17:10

On resuming—

[Caroline Nokes]

Q 73 I have a question for Mr Timpson about special guardianship orders. Concerns have been raised with me by adopters that the bar is set lower for members of family to take care of their extended family’s children. Will that be under review or will the Bill include anything on that?

Edward Timpson: One of the reasons why we have set up the review and the expert body that Andy Elvin referred to earlier in his evidence about special guardianship orders is that since they were introduced about 10 years ago—just under—there has not been a full analysis and understanding of what effect they have had. That means analysis of the effect not just on those children who have benefited from special guardianship orders but those for whom it has not worked out; of the types of children that are coming forward for special guardianship; and of how rigorous the assessment is of the carers who have taken them on.

That is all going to form part of the review, because there are some children who are placed under a special guardianship order who may have been subject to that order after only a six-week assessment of a member of their family or extended family, or friend of that family. Those are all issues that we need to look at; but it is true that as a consequence there are lots of children who achieve permanence through special guardianship, and that we need to understand better who they are—has it worked out and was it the right decision for them, and are they getting the support that they need post-placement?

That does not form part of this Bill, because it is specifically looking at the issue of adoption post-decision on permanence; but it is clearly an area that we need to understand better, so that we can be confident that going forward we have the right approach for children who come into care, when we seek to achieve permanence for them.

[Peter Kyle]

Q 74 Lord Nash, perhaps I could put a question to you first, because you did not have the pleasure of being here earlier. Witnesses made some interesting points. They had a huge amount of experience behind them.

We started with Dr Rebecca Allen, who made the point that we do not need legislation; Ofsted can tackle coasting and it should be tackling it. A later witness said that the approach in question would lead to a confusing accountability regime. We heard last from Russell Hobby, who said that the way it will play out will damage the legitimacy of the system in the examination and standards regime.

There was a clear consensus from witnesses, including Sir Daniel Moynihan from Harris, that the academies are one tool; they are part of the solution for tackling coasting, but not the only solution. Do you have any cause for concern that the Bill is too narrow in its focus?

Lord Nash: No.

[Peter Kyle]

Q 75 You do not; so you think that the only way of tackling coasting is by converting a maintained school to an academy.

Lord Nash: No, I do not. As we heard earlier, and as I think Minister Gibb said when he was on the other side of the fence talking to Russell Hobby, there is a graduated response. I think Russell Hobby talked about that. So the first question is, “Can the school uncoast on its own?” If it cannot, does it need help? Most likely that will be brokered from a national leader of education or another school and, only if after a period of time that does not work, it may well be that an academy solution is the right answer. It is not going to be by any means the only answer.

[Peter Kyle]

Q 76 You obviously accept that coasting happens in schools—grammar schools, private schools and academies as well.

Lord Nash: Yes.

[Peter Kyle]

Q 77 But you think there should be a different accountability scheme for each of those different schools—for what reason?

Lord Nash: I do not think that there is. In reality we are concerned about coasting in all schools, and we will set the same criteria.

[Peter Kyle]

Q 78 Can I ask you, then, why not have a Bill that tackles coasting in all schools, rather than a Bill that tackles coasting in one type of school: grant maintained, or—

Lord Nash: We obviously cannot. We are not going to legislate for independent schools. As far as academies are concerned, they are judged on a different regime, with their funding agreements; but the new model funding agreement will have the same definition of coasting in it, in the future.

[Peter Kyle]

Q 79 But it will be tackled through different ways.

Lord Nash: It will be tackled through the regional schools commissioners in exactly the same way. The regional schools commissioners will be responsible for local authority maintained schools that are coasting, but also academies that are coasting.

[Peter Kyle]

Q 80 Private schools that are registered with the Charity Commission, for example, will receive tax breaks paid for by the Exchequer or a licence granted by the Exchequer. You do not think there is any illegitimacy at all, or that there will be any impact on coasting in private schools?

Lord Nash: We have been through this many times in these discussions. Private schools are separate. They are where parents exercise their right to pay for a separate education. That is a much more market-driven system than the one we are talking about here.

[Peter Kyle]

Q 81 Perhaps I could ask Mr Gibb. You were here during the evidence sessions today and there was a clear consensus that the Bill was too narrowly focused. That was accepted, and I accept it. I am the chair of governors at an academy school that was a converter. It was a failing school and has seen spectacular results in the four years that it has been in existence. But there was a clear consensus that conversion is one tool, not the tool. Do you not think that the Bill is too narrow and should take account of what all our witnesses said?

Mr Gibb: No, because academisation is only one tool. If you look at the Bill, it has all kinds of other powers. We are asking for the regional schools commissioners to require that a school that is not performing well enough, for example, collaborate with another school or enter into contractual arrangements with somebody who can improve their school. They might join a federation or use the national leaders of education, thousands of whom are doing a fantastic job up and down the country. We want to increase that number to 1,400 and then to 2,000 by the end of the Parliament. Academisation is a backstop if those other interventions, which the regional schools commissioners will be arranging, brokering and discussing with coasting schools, fail. I expect a lot of schools that fall within the definition will have their own plans in place. There may be a recently appointed head with a range of plans to implement. She or he will find themselves below the measure of what counts as a coasting school, but they will discuss those plans with the regional schools commissioner, who will be absolutely convinced that the plan will succeed. That will be the end of the matter and the RSC can move on to another school.

[Kevin Brennan]

Q 82 Following on from what Peter said, he referred to clause 7 of the Bill where the Secretary of State “must”, where a school is eligible for intervention, make an academy order. That is an assumption that will not even be considered for any other method of school improvement. Does that not fetter the ability of Ministers to take a decision based on evidence?

Mr Gibb: No. This is about schools that Ofsted has judged to be in category 4, either requiring significant improvement or requiring special measures, so those schools have had that time. They have had that discussion.

[Kevin Brennan]

Q 83 The Secretary of State already “may” do that. Why “must” they do it?

Mr Gibb: Because we made it very clear before the election and in our manifesto that we wanted to intervene in failing schools from day one.

[Kevin Brennan]

Q 84 But you can do that already.

Mr Gibb: This is delivering that manifesto commitment to intervene in failing schools from day one. This is what will happen now. It will be automatic that an academy order will be issued for schools that are put into category 4 by Ofsted. We do not apologise for that. We are determined to tackle failing schools.

[Kevin Brennan]

Q 85 It is just tough talk, isn’t it?

Mr Gibb: It may be tough talk, but it is tough talk that has delivered. As a consequence of tackling failing schools in the previous Parliament, we now have more than 1 million more pupils in good and outstanding schools than in 2010. That is a remarkable achievement, and we want to build on that now by speeding up the process. Sometimes it can take more than a year to convert a failing school to an academy. We want to build on that further and tackle coasting schools where pupils are not being delivered their full potential. We want to make sure that every child, regardless of background or ability, is fulfilling their potential.

Lord Nash: It is more than tough talk. The regime we have at the moment is basically tough talk. As Minister Gibb says, it means that the average time a school takes to become an academy after being in special measures is more than a year. That is not acceptable. Often the delays are caused by adults putting their priorities ahead of children. We have taken these powers to make it absolutely clear that delaying tactics cannot be used.

[Peter Kyle]

Q 86 To be clear, you are talking about failing schools, but it is also about coasting schools.

Lord Nash: We are talking here about—

[Peter Kyle]

Q 87 I was talking about coasting schools.

Lord Nash: I think you had a bit of a crossed wire between you.

[Mrs Drummond]

Q 88 It is really good that schools are moving to “good”, and I can see that it is going to carry on. Can you see a point at which we only have “good” or “coasting” schools, because every school has got to “good”? “Coasting”, as I see it, describes schools that are doing well but could do even better.

Mr Gibb: I do not follow the question, sorry.

[Mrs Drummond]

Q 89 I am saying that if schools are moving to “good”, we can probably get rid of the other categories—“adequate” or “failing”. Can you see a time when you would just have schools that are “good” or “coasting”?

Mr Gibb: The ambition of this Government and the previous coalition Government is not to have any failing schools. Every local school should be a good school for parents to send their child to, and measures such as this help to deliver that. These structural reforms will be combined with what we are doing with the curriculum to raise standards through more rigorous and knowledge-based GCSEs and what we are doing in primary schools with reading. There are 100,000 more six-year-olds reading more effectively today than in 2010 as a consequence of the phonics reforms. With the Shanghai maths scheme, we are taking the approach adopted by the most successful educational jurisdiction for maths. We are trying to learn from that system and bring it to this country. All those things are designed to ensure we have the best education system we can give to young people. That must be the right ambition for any Government.

[Louise Haigh]

Q 90 Given the evidence we have heard today, should not the definition of “coasting” be based completely on value added and measures such as progress 8, rather than the threshold proposed in the regulations?

Mr Gibb: There are two issues: one is for secondaries and the other is for primaries. The issue for secondaries is that as time goes on, and as we move to progress 8 next year, it will be just based on progress, and we will have a different measure for coasting and for the floor. There were concerns about being retrospective. We do not want to go back and change our approach for looking at floor standards. We are taking the same approach to coasting for 2014 and 2013 as we took for the floor, but we are raising it up from—

[Louise Haigh]

Q 91 Sorry, but the definition of “coasting” contains a threshold and a progress measure. My question is, should the threshold not be removed completely from the definition?

Mr Gibb: There was a combined measure of attainment, which was 40% for the floor, plus a progress measure in English and maths for secondaries for 2013 and 2014. We do not want to make that retrospectively into just progress, but it will be just progress in the future for secondaries when we bring in progress 8. For primaries, we will retain a threshold attainment level of 85% achieving level 4b for the future and level 4 for the past two years. We do not apologise for that, because the figures are very stark: 65% of children who achieved a level 4 at primary school go on to get at least five good GCSEs, but only 5% of children who do not get a level 4 achieve five good GCSEs. We do not apologise for there being an attainment level. Only about 16% of schools are in that attainment level for 4b, so for the vast majority of schools we will be looking at their progress.

[Louise Haigh]

Q 92 Do you accept that certain schools in certain areas will always miss out on that threshold?

Mr Gibb: I am sure that will be the case, but it is not our ambition. We want every school to be achieving—

[Louise Haigh]

Q 93 And how does that affect morale and recruitment in those schools?

Mr Gibb: We have an aspiration that the floor will reach 85% over a period of time. As I said, it is important that children reach that level of academic attainment by the time they leave primary school. In primaries, there is the concept of the mastery level. We want every child leaving primary school to be fluent in arithmetic and mathematics, so that when they start with maths and science at secondary school, they can cope. That is our ambition and it is possible to achieve it. There are schools around the country in the most deprived circumstances that are getting 100% of their children to these levels and that is our ambition for the whole school system.

[Louise Haigh]

Q 94 Is there any scope to include churn in the assessment? Some primary schools, in particular, have a huge level of churn of pupils and are therefore being judged on pupils they may have had for only six months or a year.

Mr Gibb: It is a very good question. Some schools face real challenges. That is why we adapted the pupil premium: to reflect some of the issues that arise with certain professions, such as the military, and with looked-after children and so on. It matters even more that those children receive a high-quality education than it does for other children. We do not want to lower the ambition for the schools that serve those communities. We know it is challenging: that is really what the pupil premium is about—delivering extra resources so that those schools can deliver the quality of education that those children absolutely need.

[Louise Haigh]

Q 95 No one is suggesting that we lower the ambition for the most deprived pupils in our country; what worries me is the impact that the Bill may have on morale in the teaching profession. As we have heard, recruitment and retention are a problem across the board in teaching. Does the Minister not think that the Bill should have measures to tackle that growing issue?

Mr Gibb: As Lord Nash said, the definition of a coasting school is the beginning of the discussion. The regional schools commissioners will discuss with the headteacher their plans for bringing that school above the bar. If those plans are good and likely to be effective, that is really the end of the matter. I do not think that that should damage the morale of the teaching profession.

[Louise Haigh]

Q 96 We have heard that a dual accountability system will almost certainly damage morale.

Lord Nash: We have a dual accountability system now.

[Louise Haigh]

Q 97 The Secretary of State judges schools; this introduces yet another layer and confuses accountability mechanisms even further.

Lord Nash: It is based on the existing accountability system. Taking your point about schools that have high in-year mobility, obviously these are issues that the regional schools commissioners will take into account. They are experienced professionals and will look at the context of the school when making their analysis and working out with the school how it can improve its performance.

[Louise Haigh]

Q 98 You were not here to listen to most of the witnesses this morning, but as Peter Kyle said, we heard time and again that recruitment and retention of teachers is a serious problem, both for entry-level positions and in senior leadership. That is a major factor in the quality of a school’s education and there is nothing in the Bill to tackle it.

Mr Gibb: No; it is not about that.

[Louise Haigh]

Q 99 Yet it is a major issue in our education system. Sir Michael Wilshaw himself has said so.

Mr Gibb: The vacancy rate in the teaching profession is about 1% and it has been at that level since 2000. We know that we face challenges with a strong and growing economy: the competition now for graduates is very fierce and we are aware of that. All teaching recruitment organisations—Teach First, the National College for Teaching and Leadership—face that challenge, but you describe this as some sort of crisis. Teacher vacancy levels are very stable at 1%, we are above where we were this time a year ago in terms of acceptances, so I am not complacent about making sure that we have measures in place such as good marketing and bursaries to attract top graduates in shortage subjects such as maths, physics and modern languages. We are doing everything we can to make sure that we recruit graduates into teacher training, but we are actually doing very well considering the strength of the economy and the fact that we have a relatively small number of graduates coming out of our universities this year.

[Margot James (Stourbridge) (Con)]

Q 100 We heard this morning about Downhills primary school and the campaign against its academisation. I am a governor of a school in Stourbridge which is now an academy and the process of academisation there took place against an orchestrated campaign, which ran for more than 12 months. Given those experiences and the potentially even greater struggle that failing schools or struggling schools in poorer areas would have in the face of such a campaign, do I take it from you, Mr Gibb, that the speed with which the measures in the Bill will enable the Secretary of State to turn a failing school into an academy will be the answer to those sort of problems? Under the measures in the Bill, how quickly do you think the improvement in a child’s education and the life chances of those children in a school that was failing will be turned around?

Mr Gibb: We heard from Sir Dan Moynihan this morning about how they managed to turn Downhills school around in two years and it is now good with some outstanding features. He also cited the metrics of the improvement in the proportion of pupils reaching level 4. It is quite staggering. That is in the face of delays that were caused by the “save our failing school” protests. It is a tragedy that any month is wasted when children only get one chance at an education. The Bill is designed to speed up that process and that is why a school that is in special measures or category 4 will automatically be issued an academy order. The whole issue of whether a school is going to become an academy will vanish. There is no point in protesting because that is going to happen and then we can get these outstanding academy groups to take over the school and bring in support and leadership and transform it very rapidly. I think Lord Nash might want to say how rapidly.

Picking up the earlier question from Louise Haigh about morale, I would say that this is a great time to be a teacher. We have between 400 and 500 new academy groups developing that are based on a good school. A headteacher can use their expertise to develop other schools. We heard that earlier today from the lady from Sunderland—her name escapes me—who runs the WISE academy chain. It is a wonderful professional thing to be able to do, to take your expertise and experience and to spread it into three, four or five other primary schools and raise their standards. Those opportunities were not available before the coalition Government came in in 2010 and there will be increasing numbers of those opportunities available to the profession in years ahead.

Lord Nash: Our mottoes are “Every child deserves to go to a good school” and “children before adults”. I know the experiences you are talking about from personal experience as an academy sponsor appointed by Andrew Adonis for a school in Pimlico which was in special measures. We had a group of teachers and parents who were very against the whole idea and came up with a lot of appalling tactics, including breaking into my office and various other things, but two years after we took the school over, it went from special measures to outstanding, thanks to the leadership team and teachers that we recruited. The people I have just referred to asked after a year if they could change their name from, I think, the Pimlico School Association to the Friends of Pimlico Academy. They got quite a short answer from me on that. We do not want other people to have to go through that experience because it is just adults putting their dogmatic prejudices before the interests of children. That is what part of the Bill is about.

[Steve McCabe]

Q 101 Mr Timpson, during the passage of the Children and Families Bill, your colleague Lord Nash here, accepted that a power to require all local authorities to undertake joint arrangements should

“be subject to full and rigorous scrutiny by Parliament.”—[Official Report, House of Lords, 9 December 2013; Vol. 750, c. 622.]

When Baroness Hughes pointed out that the steady use of powers of direction could result in the same effect, she was assured that that was not the Government’s intention and that any direction

“would be preceded by a letter setting out the Secretary of State’s intention…This would explain the underlying reasons and provide the affected local authorities with an invitation to respond. Only then would the Secretary of State take a final decision to issue the direction.”—[Official Report, House of Lords, 9 December 2013; Vol. 750, c. 625.]

Will you follow roughly the same procedure with these arrangements? Is it fair to assume that the risk is still pretty much the same as the one identified by Baroness Hughes?

Edward Timpson: First, I do not know which particular aspect of the Children and Families Act 2014 you are referring to.

[Steve McCabe]

Q 102 I was referring to the joint arrangements covering adoption.

Edward Timpson: From memory, that was clause 3, but it may have changed during the Bill’s passage through the House of Lords.

As we heard in the evidence earlier this afternoon, the whole purpose of this clause is to have a backstop power in circumstances that we envisage will be extremely rare, if used at all, to enable regional adoption agencies to be fulfilled right across England. We want that to happen voluntarily, to be locally developed and to be done—I think this is where we can have a higher level of agreement on your point, Mr McCabe—in a transparent way. It must be clear who is involved and what will be expected of those who are in conversation with other local authorities, voluntary adoption agencies and the Department for Education, so that we get what our “Regionalising adoption” paper sets out clearly: excellence in every regional adoption agency.

The details of how we do that will, I am sure, be discussed in Committee, but I can certainly give an assurance that we want to see a transparent process. Much of that is already happening, as we have heard. I fully expect that to continue with the support we are offering through the £4.5 million over the next year and the practical support that the Department can offer, as well as the adoption leadership board and the regional adoption boards. That will ensure that excellence, where we know it exists, is brought to the attention of local authorities that do not know already about it and are looking to build up a consortia.

[James Berry]

Q 103 For constituents I have spoken to about adoption, the key concern and key failing they identify in the system is the time it takes to achieve permanency. Are you confident that the Government’s proposals in the Bill will speed up the process?

Edward Timpson: I am confident that if regional adoption agencies develop in the way that we expect and are already starting to see, that will help—particularly with the matching process and trying to bring down the time it is taking for far too many children whose plan is for adoption to be matched with their forever family. We know that there are 3,000 children in care at the moment whose plan is for adoption. Over half of those have been waiting for 18 months for that match, despite the fact that there has been a 27% increase in adopter recruitment in the past few years.

We have, in the past three to four years of the coalition Government, seen a reduction of about four months in the time it takes for a child to be adopted. That is good progress, but we think we can go further. The creation of regional adoption agencies will help in that endeavour, as will the area of recruitment and improved support for children who have been adopted—in particular, the specialised services that are not always available in every local area. If those services are commissioned and drawn from a wider area across the region, more families and children will be able to access them when they need them.

[James Berry]

Q 104 Secondly, the first set of witnesses we heard from on the adoption part of the Bill were broadly supportive of the Government’s proposals. The second set—to the extent that they were actually opining on the Bill; in other words, adoption rather than the wider piece—did raise some concerns, one of which was that small voluntary adoption agencies might be crowded out. Can the Government give any reassurance on that?

Edward Timpson: There are several ways in which I can reassure those voluntary adoption agencies. I had the opportunity a few weeks ago to speak to the Consortium of Voluntary Adoption Agencies about this at their conference.

First, I put on the record—I will continue to do so throughout the Bill’s passage—my view and that of the Government: voluntary adoption agencies play a key and central role in delivering high-quality adoption services in England and, I am sure, right across the United Kingdom. They will be an essential part of the solution to excellent regional adoption agencies. Secondly, in the paper, “Regionalising adoption”, we have—I think on page 12—clearly set out why we say that that is the case. We will be working with local authorities, as they develop their regional adoption agencies, to ensure that they understand the benefits that they can draw from voluntary adoption agencies if they are not already doing so.

Voluntary adoption agencies that may want to have a different arrangement—obviously, we cannot force them to join the consortium—will still have a vital role to play in providing some of those specialised services for children for whom it has proved more difficult to find the right family. They could also have a role in the training of adopters, so that they feel confident with the challenge, which, I know from my own family, adoption can bring.

[Peter Kyle]

Q 105 I have a follow-up question to Mr Gibb. First, I would like to associate myself with some of the comments that you made about the protests that have emerged around potential converter schools. I returned to secondary school in my mid-20s because I went through a failing school the first time, so I feel this very personally. In my constituency, I have seen cases of people using individual schools as political footballs, which I think is appalling.

We are now moving from an era of rapid conversions of failing schools into one where parents will find out that their school has been declared coasting, and that might be a shock to them. A rapid process may emerge, which will invite this kind of protest, however rapid it is. We could lose any existing community engagement, which could have been harnessed. I am throwing you an olive branch. We all want zero tolerance on young people leaving school and emerging into an area where they will not get the second chance that someone like me did. Is there a way of finding a consultation process that harnesses parent power, rather than, by default, seeing it as an obstacle?

Mr Gibb: There are two questions. One is whether children should be involved in a child’s education and whether the community should be involved in its local school—yes to both. Secondly, should organised political groupings locally be able to thwart the conversion of a failing school into an academy? The answer is no.

I should add that in the Bill if a school is voluntarily converting—a good school that the governors have decided to convert—there is still a requirement for them to consult the stakeholders of the local community. It is only for those schools that have been categorised by Ofsted as failing. When Ofsted puts a school into special measures, it is the truth; it is a school that has not delivered properly for those young people. We cannot have ideologically driven groups deliberately trying to delay and frustrate the aim of raising standards.

[Peter Kyle]

Q 106 My point is that we cannot use that as an excuse to shut out parents. I understand about people making broad political points, but parents of students who are going to the school and the school community are actively engaged. We do not want to push them to one side for fear of a group that is somewhere else.

Mr Gibb: I do not disagree with you on that. It is about the legal process of converting a school into an academy. We do not want that process being delayed by a group of people who are being driven by politics and ideology. Regarding the parents who want the best for the school, are involved with the PTA, are governors and are involved with their children’s education, a good school will always want to embrace and involve them in the running of the school and the school community. Nothing in the Bill prevents that from happening.

[Kevin Brennan]

Q 107 We have talked about reasons for delays around academisation. Is it not the case that delays are more often due to departmental incompetence, PFI deals and lawyers arguing about public land, or does that never happen, Lord Nash?

Lord Nash: The answer to your question is that is does happen sometimes. Lawyers do argue on those issues, but they are not issues that result in extensive delays.

[Kevin Brennan]

Q 108 Have you witnessed many lengthy delays, none at all or small delays for those reasons?

Lord Nash: Sometimes, the legal process on land can take a bit of time, particularly if the information forthcoming from the local authority is slow, but generally it is the other delays that we talked about.

[Kevin Brennan]

Q 109 Tim Coulson acknowledged earlier that having a key performance indicator relating to the percentage of academies that should be converted in an area could be perceived as a conflict of interest when dealing with coasting schools, in relation to how to approach them. Do you see any conflict of interest being possible there?

Lord Nash: We make sure that all our accountability measures and all the ways in which we asses the performance of regional schools commissioners are based on the principle of putting children first. There are no hidden agendas as you imply.

[The Chair]

That brings us to the end of the time allotted. We are grateful to the Ministers. This is undoubtedly only the opening foray of a period of time that I am sure we will all enjoy. We will examine everything that has been said today by witnesses and the Ministers, and we may come back with some further requests for information. The next meeting of the Committee will be on Thursday 2 July at 11.30 am in Committee Room 12.

17:45

Ordered, That further consideration be now adjourned. —(Margot James.)

Adjourned till Thursday 2 July at half-past Eleven o’clock.

Written evidence reported to the House

EAB 01 Dr Rebecca Allen, Director, Education Datalab

EAB 02 Link Maker Systems

EAB 03 NSPCC

EAB 04 Acorn Care and Education

Westminster Hall

Tuesday 30th June 2015 Westminster Hall

Tuesday 30 June 2015

[Mr George Howarth in the Chair]

Shale Gas

Tuesday 30th June 2015 Westminster Hall

09:29

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I beg to move,

That this House has considered shale gas.

It is a pleasure to serve under your chairmanship, Mr Howarth.

Is shale gas exploration right for the UK, right now, and right for the constituency I represent? The benefits of shale gas exploration are clear. Greater energy independence and security at a time of significant international uncertainty is a compelling proposition, as is the prospect of a prosperous new industry that can provide new jobs, business opportunities and direct financial benefit to local communities. The economy is important, but no economic benefit, vested interest or party political pressure could ever lead me to support something that I believed would have a detrimental effect on our countryside or the health of local residents. Over the last 10 months, I have met parties on either side of the fracking debate in an attempt to get a clearer understanding of the issues.

Shale gas exploitation will produce harmful greenhouses gases. The natural gas produced is a fossil fuel, and many object to its production because when burned it produces carbon dioxide, a greenhouse gas. Some say we should instead focus on renewables, such as wind farms, solar and producing energy from household waste, but most reasonable observers would accept that we are a long way from green energy being able to met all our needs. Natural gas produces 50% less greenhouse gas emissions than coal and can help us to meet our climate change targets more quickly and cheaply. Although renewable energy production is increasing, in 2014 it delivered only 7% of our total energy needs. We need a mixed, and ideally domestic, solution to our energy requirements.

On Saturday morning, I visited the village of Kirby Misperton in my constituency, where an application to drill for shale gas has recently been submitted. Of about 50 people in attendance, 44 were against fracking and six had an open mind; none was in favour. These people are not professional campaigners: they are decent local people, desperately worried that fracking will change their lives forever, and not for the better. Their concerns mainly centre on safety—the potential for contamination of water supplies and air pollution—during production and after the producer has made their money and left; the spoiling of countryside by drilling rigs, noise and light pollution and lorry movements; and, at the end of the day, who cleans up and who pays up if things go wrong.

First, on safety, the fact that other Administrations—France, Germany, New York state and so on—have banned fracking is a major worry to many. So too is the “Shale Gas: Rural Economy Impacts” report from the Department for Environment, Food and Rural Affairs, which had 63 redactions within 13 pages, including of a whole section on the impact on house prices. The Government’s position that

“There is a strong public interest in withholding the information”

did little to ease anxieties. It leads many members of the public to feel that they are being deceived, patronised or treated with contempt. We have only one chance: we need to get it right an to be seen to get it right.

The Environment Agency, Department of Energy and Climate Change, the mineral protections authority and the Health and Safety Executive regulate operations. Having met the Environment Agency, I am confident that our regulations are strong. Fracking will be allowed only outside groundwater source protection areas. According to one representative of the agency, chances of contamination are entering the “realms of fantasy”, but I would like to see a clearer, more robust and independent monitoring regime for the regulations. The Environment Agency is already stretched and cannot be reasonably expected to carry out truly independent checks on the producers’ operations and any consequential effects on the environment.

A 2012 International Energy Agency report on unconventional gas exploration includes in its golden rules:

“Recognise the case for independent evaluation and verification of environmental performance”.

Our current regulations require the producer to instruct a chartered independent contractor to take baseline checks before drilling and to monitor water and air quality before, during and after production. Concerned local residents do not feel that those checks would be truly independent, as there is a clear commercial relationship between the producer and the contractor. Would it not make sense for the Environment Agency to instruct the relevant chartered environmental engineers, with the bill reimbursed by the producer?

The Royal Society’s 2012 report states:

“The operator commissions and pays for the services of the well examiner… This might be someone employed by the well operator’s organisation. It is important that those carrying out examination work have appropriate levels of impartiality and independence from pressures, especially of a financial nature. Promotion, pay and reward systems should not compromise professional judgement…. The independence of the scheme must not be compromised.”

Evidence provided to the House of Lords Economic Affairs Committee in 2013-14 states:

"the weakest point of the regulatory process concerns the Environment Agency”,

which appears to have

“insufficient in-house expertise.”

The Committee stated that the agency

“should make it much clearer to the industry and the public exactly how and when they would inspect well sites.”

Many are also concerned about the amount of water required and whether it can be safely decontaminated and recycled, and whether contaminates can be disposed of, particularly on the scale proposed.

The spoiling of countryside is another major concern. I would be first in a long line of local residents who would fight tooth and nail to prevent any attempt to produce shale gas in my area in a way that industrialises the landscape. Traditionally, the fracking process involves a high number of lorry movements and unsightly infrastructure that could be a real blot on the landscape. Just one of the companies, Third Energy, has stated that it might drill 950 wells in less than a third of my constituency, which would require hundreds of thousands of lorry movements, all in one of the country’s most beautiful counties, with an economy heavily dependent on agriculture and tourism. North Yorkshire County Council, which would handle any application, has to take into account the impact on other parts of the economy, particularly tourism, and the suitability of our roads to handle additional traffic. The beauty of our countryside is North Yorkshire’s main asset and we must protect this at all costs.

A 2012 “World Energy Outlook” report on unconventional gas stated that production is

“an intensive industrial process”,

which

“can have major implications for local communities, land use and water resources… Improperly addressed, these concerns threaten to curb, if not halt, the development of unconventional resources.”

I propose clear planning guidance that there must be buffer zones, with a minimum distance between sites of, say, six miles. We do not want the images of a fracked industrial landscape from North Dakota to become a reality here. The 2012 Royal Society report recommends recycling and reuse of waste water and that water disposal options should be planned from the outset, thereby reducing traffic and the impact on local communities.

Who cleans up and who pays up if things go wrong? We need to make sure that our green fields are not turned into brown fields. Appropriate regulation and supervision may reduce the chances of things going wrong, but we also need to understand and provide for a situation where it does. Although groundwater source protection zones are excluded from fracking activities, what protections are in place for boreholes and artesian wells? According to United Kingdom Onshore Oil and Gas, the body that represents the industry,

“if a company causes damage, harm or pollution to the environment, they can be required under these regimes to remediate the effects and prevent further damage or pollution…. Environmental regulators and planning authorities have the power to require upfront financial bonds to address these risks. The industry does not wish to leave this to the taxpayer or the landowner. As a less expensive alternative to upfront bonds, UKOOG is working with Government on the development of an industry scheme that will step in and pay for liabilities.”

The Royal Society report states:

“Arrangements for monitoring abandoned wells need to be developed. Funding of this monitoring and any remediation work needs further consideration.”

What if the producer has gone bust? Who compensates those who have lost out?

As far as the jewels in the crown are concerned—namely, areas of outstanding natural beauty, national parks, ancient woodlands and sites of special scientific interest—we need to state unequivocally that production will not take place in such areas. We must ensure that people do not feel that the Government agenda is being directed by big business. Many members of the general public do not trust business and also feel, perhaps unfairly, that too often politicians will support business at their expense. We need to take it one step at a time and ensure that people see that the process and facts are being properly monitored, assessed and reviewed.

All energy sources have impacts. As Members of Parliament, we have constituents who might be against onshore wind, solar farms, nuclear power or energy from waste. Twenty years ago in my constituency, many had similar fears when proposals were announced to carry out conventional gas exploration. Protests took place, views were heard and compromises were reached. Gas has been produced in the area ever since, with many residents unaware of its existence. Many members of the public have an open mind on fracking; others have genuine safety concerns. Whatever their viewpoint, it is critical that we keep the public informed and that local communities are consulted on the case for fracking, the potential benefits, the environmental risks and the proposed safeguards. We need to reassure the public that we are prepared to stop if fracking is significantly affecting lives and livelihoods, just as we did in 2011 when it caused earthquakes at Preese Hall in Blackpool.

In summary, we need: truly independent monitoring and publicly available analysis; a defined minimum radius between production sites; a clear solution on water recycling and disposal to reduce traffic; additional blight compensation for any person or community directly impacted; the release of an unredacted version of the DEFRA report; a clear willingness to stop if lives and livelihoods are affected to unacceptable levels; and, a clear answer to the question of who cleans up and who pays if the worst happens. We need to take the public with us, consult, provide expert scientific information and ensure that people do not feel they are being pushed or manipulated.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

I congratulate the hon. Gentleman on securing the debate, and I thank him for his reference to Preesall in my constituency. Is he aware that yesterday, Lancashire councillors overwhelmingly voted to reject fracking in the county? The result was very clear: nine voted against and three voted in favour, which broadly reflects opposition to fracking across Lancashire—two thirds of people are in opposition, and the figure might be similar for his constituents over in Yorkshire. We had 300 local businesses write to the council, urging it to reject fracking. Those businesses included farmers, bed and breakfasts, media companies, the retail sector and many others. Does he agree that opposition to fracking runs across many different parts of our communities?

[Mr George Howarth (in the Chair)]

Order. It might be of assistance to remind those hoping to take part in the debate that interventions should be short and to a single point. I think the hon. Lady made a mini-speech there, and I will not tolerate that in any future contributions.

[Kevin Hollinrake]

I absolutely accept that many local residents have real concerns, and we need to take those concerns into account before taking the next steps.

[Mark Menzies (Fylde) (Con)]

As a point of correction, the hon. Member for Lancaster and Fleetwood (Cat Smith) mentioned Preesall in her constituency. For the record, my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) was actually referring to Preese Hall, which is a fracking well in my constituency.

[Kevin Hollinrake]

I am grateful for the lesson in geography. It is not a part of the world I am all that familiar with, but I am very familiar with the geography of the beautiful parts of North Yorkshire, and I am strongly keen to ensure that they remain that way.

As the IEA report recommends, we need to:

“Integrate engagement with local communities, residents and other stakeholders into each phase of a development starting prior to exploration; provide sufficient opportunity for comment on plans, operations and performance; listen to concerns and respond appropriately and promptly.”

The public deserves precise answers to those questions.

[Julian Knight (Solihull) (Con)]

I congratulate my hon. Friend on securing this debate. Does he acknowledge that although the United States and Canada initially saw a transformative economic effect from shale gas, there has been a slowdown since 2014? Some gas fields are running at a loss. Does that not show that we need to ensure that there is an economically viable case in all instances of exploration?

[Kevin Hollinrake]

There is clearly an opportunity here. The volatility of oil and gas prices is not within my remit, but there is commercial pressure to exploit shale gas for future domestic security. I understand that; it is why we need to get it right.

The public deserve precise answers to their questions via every means possible, including a comprehensive series of community meetings conducted by real experts with real answers. It would be all too easy to join the chorus of political voices who oppose fracking in North Yorkshire, but I do not believe that politics should be about doing what is convenient or being swayed by a vocal minority; it is about doing what is right. At this stage, we need to look at the issues and solutions more closely and find those solutions that reassure the public that we have their interests at heart and that allow us to realise the benefits of low-carbon, low-cost energy independence.

09:47

[Dr Alan Whitehead (Southampton, Test) (Lab)]

I congratulate the hon. Member for Thirsk and Malton (Kevin Hollinrake) on obtaining this debate. It is important because it goes to the heart of the distinction between what it is to drill an exploratory well and what it is to have a fracking industry in any particular part of the country. He clearly set out the safeguards that are needed as an absolute baseline for any fracking at all to take place, as well as the cumulative effects of fracking and the extraction of shale gas on particular areas and what impact that has on the community in the longer term, as well as the impact on the consequential things needed to keep that industry in place—whether that is the disposal of wastewater, consideration of the intensity of various fracking pads, or a range of other issues.

I shall concentrate for a moment on thinking about what fracking as an industry might look like in this country, as opposed to what an occasional exploratory well might look like. The proposition in front of us is not for occasional bits of exploration; it is “Go for it. Let’s have a substantial fracking industry. Let’s change the nature of how we obtain our gas supplies.” The argument in favour of fracking is that it is a substantial addition to our national security. Some of the further reaches of the argument relate to bringing prices down, but that is quite wrong and misunderstands the nature of gas trading in Europe. There would not actually be any great difference in gas prices unless the whole of Europe decided that it would frack everywhere in Europe.

The argument that a substantial fracking industry might be good for national security is the main argument put forward for it.

[David Mowat (Warrington South) (Con)]

It is true that there is no reason to believe that prices in Europe will come down by a factor of four, as they have in the United States, but it is also true that if we have more of something, the price is likely to come down. Increasingly, our strategy is to buy gas from Russia and liquefied natural gas from Qatar. That is not a viable way forward.

[Dr Whitehead]

The hon. Gentleman is right to say that we buy some LNG from Qatar, but only about 0.5% of the UK supply comes directly from Russia. Buying gas from Russia is really not an issue for this country, although it is for some other parts of Europe. My point was that the international trading arrangements for gas have three nodes across the world—the far east node, the north American node and the European node—and gas is traded and pipelined within those nodes. The product of shale gas in this country would simply go into one of those nodes and be traded across them, and the price would even out. That is my point about whether a shale gas industry would mean a substantial reduction in price.

I want to concentrate on what a shale gas industry in this country would look like. We have only one serious document sponsored by the Department of Energy and Climate Change that looks at the consequences of a serious industry. My concern is that that document, a strategic assessment produced by AMEC a little while ago, estimates the output from shale gas wells to be 3.2 billion cubic feet per well over 20 years. As an average output for wells in the UK, that would equate to the best level ever obtained in any well in north America. Conditions for shale gas in the UK are very different from those in the United States, and the likelihood is that the output per well would be far lower than the very best output in the US. On top of that, the current average US well output is about 0.8 billion cubic feet—far lower than the best ever output—and, more to the point, there is a rapid rate of depletion per well.

In fact, a shale gas industry in the UK would see relatively low gas output per well, with a fairly rapid depletion rate and the necessity for re-fracking, probably once every seven or eight years, were the well to be retained in production over 20 years. It is not a question of a well pad being drilled and then the equivalent of “nodding donkeys”, such as we have at Wytch Farm, nodding away quietly in the countryside. The process of trucks, waste water and re-fracking would have to be repeated every few years on that well pad in order to keep it going. Even then, the depletion rate is more rapid after the second re-fracking, after which the well goes out of business.

[George Kerevan (East Lothian) (SNP)]

Given the multiplicity of wells that would have to be drilled, does the hon. Gentleman agree that the UK would require a massive pipeline system and investment in a massive gas storage system? That would affect a large number of constituencies, not just where the drilling originally was.

[Dr Whitehead]

The hon. Gentleman is absolutely right: the location of various wells would require either that the gas was stored in tanks near the well and then transported or that new pipelines be constructed to take it away. A pipeline could not be organised in the same way as for the North sea.

On the basis of the scenario I have outlined for what a shale gas industry would look like in this country, the estimates are that, in order to divert, let us say, 10% of our gas supply from conventional gas into shale gas and remove part of the need to have gas from Qatar or Russia—10% is a modest diversion—we would need to drill somewhere between 10,000 and 18,000 wells, and they would have to be re-drilled over a period. Of course, those wells would not be evenly distributed throughout the country—Members would not have around two wells per constituency; wells would be concentrated in the two areas of the UK where there are reasonable shale plays. Those shale plays are geologically faulted and difficult to get at; nevertheless, they are the main areas: Bowland shale in the north-east of England and across the weald in the south.

We are looking at 10,000 to 18,000 wells concentrated in two parts of the country. As the hon. Member for Thirsk and Malton said, that would probably result in the very intensive geographical concentration of fracking in those areas, with a substantial geographical concentration of take-off facilities and of the need to remove waste water, 7 million gallons of which per well will have to be removed and disposed of fairly safely as hazardous waste. We do not currently have the ability to do that in this country. We can do it for the occasional well, but we would not be able to do it very easily without substantial new facilities for such a concentration of hazardous waste, which would be repeated as the wells were re-fracked.

We need to ask whether all that is a realistic prospect compared with the gain that might come from extracting the additional gas. It seems to me that, if that is what we want for our energy strategy, there will be a very high price to pay throughout the country for a marginal gain. Are we really, seriously committing ourselves to that? Recent events in Lancashire demonstrate that it is rather difficult to get two wells into the ground, let alone 18,000 over a longer period. I am worried that we are setting ourselves up by assuming that some of our future energy supplies are going to be pencilled in for this particular route, when either there are unacceptable costs to reaching that goal or, to make the industry work, we will have to build a whole lot of infrastructure on the back of what we already have.

Having considered at how a UK shale gas industry might look, it might be interesting to look briefly at an alternative industry: green gas, which is the production of gas by anaerobic digestion plants and associated methods. It has been projected that, by using most of the available feedstock that could go into anaerobic digestion plants, we could probably divert between 5% and 10% of our domestic gas supply requirements. When I say “divert”, I mean literally divert, because green gas AD plants can now inject gas directly into the mains.

There are eight green gas plants currently operating in the UK. I recently visited one in Poundbury, which, at certain times of the year, injects gas into the mains grid. People living between, roughly speaking, Lyndhurst and Weymouth will receive green gas from the Poundbury anaerobic digestion plant at various times of the year. There is direct substitution of the existing gas going into the mains. An AD plant would probably produce some 6 million cubic metres over 20 years. A well could produce rather more at some 20 million cubic metres, but it would have to be re-fracked several times. After that, the well would be capped and the operators would walk away. Because plants and animals continue to produce feedstock, AD green gas plants would simply continue. If we are considering changing from gas imports to domestic production for national security purposes, it might be a better idea to build a large number of AD plants and have one at the end of every lane.

[David Mowat]

I support green gas and anaerobic digestion. The hon. Gentleman said that the gas could be injected directly into the mains gas system. Is he implying that the characteristics of shale gas or other unconventional gas mean that they cannot be put directly into the grid? I do not follow.

[Dr Whitehead]

I am sorry if I unintentionally misled the hon. Gentleman. Shale gas can of course be injected directly into the grid. AD-produced gas has a slightly different calorific value, but with minimal treatment it can actually go directly into the grid in the same way as shale gas, so there is a direct comparison in production and in end use between the two processes. I suggest that if we want an industry that diverts substantial amounts of gas from import, building up AD plants and injecting green gas into the system might be a more environmentally sound and less intrusive way of doing so which might be more acceptable to the communities affected by any potential intensive fracking.

I appreciate that a farm AD plant at the end of a lane is not exactly the prettiest sight in the world, but it produces gas at a near zero overall net carbon cost, because it simply recycles what has captured carbon in the first place, and produces a different pattern of use. In the long term, it is potentially—

[Mr George Howarth (in the Chair)]

Order. I am sorry to interrupt the hon. Gentleman, but 11 further speakers are hoping to catch my eye. I shall have to impose a time limit, but the extent of that limit is in the hon. Gentleman’s hands.

[Dr Whitehead]

This hon. Gentleman was actually just about to finish.

Considering the industry as a whole, I suggest that AD is a rather sounder route in the long term than imposing 18,000 wells across the country with all the consequences that the hon. Member for Thirsk and Malton outlined. I heartily concur with his concerns, but there is an alternative and it should be seriously considered.

10:03

[Seema Kennedy (South Ribble) (Con)]

I thank my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for securing this debate. I will keep my remarks short.

The decisions taken at county hall in Preston yesterday and last Thursday directly affect my constituency. Lancashire County Council’s planning committee has rejected Cuadrilla’s applications to frack at Roseacre Wood and Little Plumpton, both of which are in the constituency of my hon. Friend the Member for Fylde (Mark Menzies). Those two sites are on the north side of the River Ribble, just a few miles away from a site at Hesketh Bank in South Ribble, where Cuadrilla was given a licence to frack in 2008. That licence was suspended, along with all others, in 2011.

Most of my constituents accept that we need to explore this new form of energy as it will help national self-sufficiency in energy. Too often, however, those with legitimate concerns about fracking are dismissed as luddites or nimbys, but many of my constituents’ worries have not yet been adequately addressed by Government or the energy companies. The main worries are about safety, specifically water contamination, the lack of adequate infrastructure to support a new industry and the details of the compensation framework.

South Ribble is the floodplain of the River Ribble and is known as the salad bowl of England. Grade 1 agricultural land makes up 32% of my constituency, which puts it in the top 10 of such constituencies in the country, and 41% of my constituency is grade 1 or grade 2 agricultural land. The neighbouring constituency of West Lancashire has the highest proportion of grade 1 agricultural land in the country, and many of the farmers and growers in my constituency have fields that cross constituency boundaries. The industry employs many thousands of people and contributes to our nation’s food security.

The quality of the products grown relies on their growing in pristine soil that must be free from water-borne contaminants, which is the growers’ No. 1 concern. Fracking involves injecting water, sand and chemicals into the ground, but what is the composition of those chemicals? We are told that drilling takes place well under the water table, but my constituents are looking for further reassurance from Government and the energy companies that there will be no seepage into the water table and that the pipes will not develop fissures. They also have certain concerns about residual flowback fluid.

The site at Hesketh Bank is down a long country lane. The villages of Tarleton and Hesketh Bank are already clogged up with wagons transporting salad and vegetables to market. I am already working with local campaigners to put pressure on the council to build the “Green Lane Link” because the road system is not even adequate for our primary industry of agriculture. Were a new industry to be introduced, local people would expect the energy companies to contribute towards new infrastructure. They would not want it all to come out of their council tax.

Finally, let me turn to the compensation framework. Research from the US is conflicting on whether house prices are affected by having wells nearby. There needs to be robust compensation for those whose homes and livelihoods are affected. We need statute to set down the framework, which should include obligations to provide infrastructure such as roads and schools, rather than leaving it to local council planning authorities. Furthermore, the news on jobs is unclear. Are they the sort of high-skilled, long-term jobs that we want in Lancashire? DEFRA’s report from March 2014, “Shale Gas: Rural Economy Impacts”, states that jobs will be available for locals

“on the availability of skills and experience in the local labour market.”

My constituents want more reassurance that energy companies will train local apprentices and employ local people for the long term.

[Kit Malthouse (North West Hampshire) (Con)]

My hon. Friend rightly highlights the local impact of the industry, which generates significant concern in my constituency. Given the Government’s statement last week that local communities should have the final say on wind energy, does she agree that there should be special rules for fracking—I see in the paper today that the industry is calling for a change in the legislation—requiring applications to go through the normal planning process, like in every other industry? Local communities would therefore get a say about what the industry looks like in their area—if it appears at all.

[Seema Kennedy]

We have all accepted that local communities need to have total buy-in, and I am talking about what the energy companies do as well. National Government need to lay down such obligations. The companies need to be seen to be engaging fully with young people, providing apprenticeships and local jobs.

My constituents are not nimbys, but they want reassurance that fracking will not affect the quality of their land. They want concrete reassurances that their communities will be adequately compensated for any risks that they might face.

[Mr George Howarth (in the Chair)]

Before I call Graham Stringer, I will have to impose a five-minute limit on speeches. It is unfortunate that I have to do so, but it is the only way that I can contemplate getting everyone in.

10:10

[Graham Stringer (Blackley and Broughton) (Lab)]

I congratulate the hon. Member for Thirsk and Malton (Kevin Hollinrake) on an extremely well balanced speech. All discussion about the energy industry is fraught, because it tends to deal not only with the detail, but with people’s particular ideological positions.

In the time available, I will make two major points. The first is that this country is at a particularly critical moment in its economic history. The energy policy that we have had for the past seven or eight years—putting up the price of energy by moving to intermittent renewable sources, which has increased people’s bills—has had two unfortunate consequences: not only the price going up, but the deindustrialisation of the country, as industry has moved elsewhere in the world. As a result, although the policy objective is to reduce carbon dioxide emissions, the overall carbon footprint of the country has increased. The policy has been a mistake. We now have a big decision to make on runway capacity in the south-east—which I will not talk about, Mr Howarth—as well as on fracking. All those decisions are critical for our country’s future wealth.

On fracking, there are two intellectually coherent arguments. I understand people from the green lobby who say—this often invades the discussion without being explicitly stated—that we should leave all fossil fuels in the ground forever, because we have already taken enough out. I do not agree, but it is intellectually coherent for people to say that. The argument that I support is that we need to look at every possible energy source for this country’s energy future. I agree with my hon. Friend the Member for Southampton, Test (Dr Whitehead) that we should look at green gas, and we should also put more money into research, because at the moment renewables cannot compete with the energy-intensity available from fossil fuels.

In the meantime, we also need to be developing shale gas. There is a case against and a case for, but there is not a case for pretending that we do not know or for simply kicking the can down the road and saying, “Oh, we’ll have a moratorium,” as some of the candidates in the competition for the leadership of the Labour party are doing. We have to make a decision about such things, and I think we should go for shale gas. More than 1 million wells have been drilled in north America. All those wells that have complied with the safety regulations—which are not as tough as the regulations that this country will have—have been drilled without any problems. The scare films are often about areas where the issues might not be to do with fracking, as it turns out, or where, if fracking is involved, the rules have not been followed. We have to go for it.

We have heard from two Conservative Members about the normal planning concerns that one gets—about the amount of road usage and what will happen to an area. Those are obviously genuine local concerns, but as a country we have to decide on the balance between those people with genuine local concerns and what is part of the national infrastructure plan. There is nothing unusual about that: when the country was cabled, the amount of local cabling decisions that could be taken were reduced. Shale gas is of such importance that we should have a national infrastructure plan.

I will finish with the final point made by the hon. Member for Thirsk and Malton. Rumours are sometimes put about wilfully by those who are ideologically opposed to fracking, so the worst thing that any Government can do, whether a Conservative or Labour one, or a coalition, is to hide information. We need to get as much information out there as possible, because fracking is safe and water will not travel through half a mile of rock. People need to be reassured about that and, by reassuring them, we are much more likely to get the economic benefits of a real shale gas industry.

10:15

[Jeremy Quin (Horsham) (Con)]

I congratulate my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on securing this debate.

The benefits of unconventional drilling have been well flagged. While bridging to a low-carbon future, it might provide the UK with a secure source of energy. However, the Government have only one opportunity to get things right, as my hon. Friend said. We are routinely told about the economic value associated with extraction, so in that context it is critical that people, especially those living near extraction sites, have cast-iron confidence that proper and sufficient investment is being made to ensure their safety during and after the drilling period. My constituency has seen exploratory drilling conducted near Balcombe under a licence granted in 2013 to Cuadrilla. The concerns of many residents were far from being assuaged and, if the resource is to be exploited, public acceptance and support are critical. The Government must ensure that the public have complete confidence that their overriding concern remains the safety of their citizens around the sites.

There are advantages to a country in being a second mover. The hon. Member for Blackley and Broughton (Graham Stringer) referred to the US experience, which is clearly useful to learn from. I am sure that the Minister will place on the record her Department’s continuing monitoring of the US experience. We have much to learn from it and, given the far higher concentration of population in the UK, it is essential that we do so. However, I have constituents who are concerned that the Minister’s Department, having in large measure set out a safety regime, will cease to focus as much on the US experience. I would like a reassurance that that is not the case, not only in the Minister’s response today, but, more critically, in how the Department responds to the stories that emerge from the US in the coming months and years.

I also support my hon. Friend the Member for Thirsk and Malton in calling for the monitoring of fracking activities not only to be independent, but in every respect to be seen to be independent. It would be damaging for the industry if a perception were to emerge that those being paid to monitor activities had a vested interest in those activities being ongoing.

[Antoinette Sandbach (Eddisbury) (Con)]

Does my hon. Friend agree that environmental impact assessments are key, in providing information to local communities before planning applications and looking at possible consequences, so that they may be taken into account and dealt with early in the planning processes?

[Jeremy Quin]

I agree with my hon. Friend in every respect. Other hon. Members have referred to the importance of getting information out there to reassure the public, and that is one example of us doing exactly that.

Water contamination is one example where reassurance might be required, as was referred to earlier. The construction of wells is key to this, with sufficient casing and cementing being essential to prevent groundwater contamination and manage the flowback fluid. As we have seen in Pennsylvania, there is inevitably a failure rate in certain new wells. Will the Minister provide a reassurance that the regulatory regime on well construction is sufficient to prevent substances from leaking? Monitoring of groundwater for contaminants is essential, not on the basis of an investigation every three years, but as a regular, routine undertaking during and after drilling. I appreciate that the Infrastructure Act 2015 specified that

“hydraulic fracturing will not take place within protected groundwater source areas”.

A lot may hang on the exact definition of what “groundwater source areas” comprise, so I look forward to that being clarified.

Lastly, under the Environment Agency’s recent consultation, flow testing could be covered by a standard permit granted to the explorer. The Minister will appreciate that, at this early stage of unconventional drilling in the UK, particularly in the context of early flow testing, anything that suggests a standard approach without particular consideration and monitoring will cause concern. We look forward to that being clarified in due course.

I have no doubt that the Minister will act with her usual boldness and determination in pushing this agenda forward. I simply ask that, in doing so, she uses the same determination—I have every conviction that she will—to ensure that the safety regime is not only highly effective, but capable of assuaging the concerns of people living close to drilling operations.

10:20

[John Mc Nally (Falkirk) (SNP)]

I thank the hon. Member for Thirsk and Malton (Kevin Hollinrake) for securing this debate on a subject that is close to most people’s hearts, of that I am quite sure.

I will be brief, but first let me say, by way of background, that I am speaking today because Falkirk, the area I represent, is at the heart of fracking operations, with test bore drills already in place. INEOS has planning permission to build shale gas tanks, and it has to be said that that is a hugely significant investment.

On 19 May last year, I attended a fracking conference at the Mermaid theatre in London on behalf of Falkirk Council, of which I was a member at the time. I assume that many Members present have attended similar conferences. After about an hour, I was thinking to myself, “Why do we keep being told that our regulations are the best and safest in the world?” It reminded me of an anecdote about Sir Alex Ferguson, who when looking at a player he was interested in was told that there was no truth in the rumour that the player had injury problems; the first thing he thought was that he needed to look at the player in a great deal more detail. I took that methodology back to my constituency: more analysis is required.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

Does my hon. Friend agree that perception is reality, and that even if fracking were technically proven to be safe, the public concerns surrounding it would also need to be addressed, or else it could still be damaging to our economy in terms of our water production, the reputation of our food and drink industry, and house prices?

[John Mc Nally]

I agree totally with my hon. Friend. Perception is everything. The hon. Member for South Ribble (Seema Kennedy) referred to the salad bowl. If Mr Birdseye thinks that water contamination is going to affect his product in any way, he will withdraw and people will not buy the product. I am convinced of that; there is no second-guessing there.

The delegates at the conference I attended went on to listen to various utopian and dystopian presentations. That ignited for me the other reason we are here today. Last Thursday I asked the Secretary of State to produce a detailed health and environmental impact assessment for the conference in Paris this year. She answered that safety would always be a priority and that this country has a safe environmental working record. I eagerly await the presentation of the findings on the health and environmental impacts.

Medact, a registered public health charity with over 1,000 public health clinicians and the like as members, has produced a report on fracking. The report concludes that fracking poses significant public health risks and calls for an immediate moratorium, to allow for the completion of a full and comprehensive health impact assessment. I agree totally with that position.

In Scotland, there is what we call the WOW factor—wind, oil and water. There is currently a moratorium, as the Scottish Government have listened to concerned communities not just in Falkirk but across Scotland. We have a worldwide reputation for the purity of our water; our vast food and drink industries require that that reputation is not tarnished in any way, shape or form. Under the Smith commission’s proposals, licensing of fracking will be devolved to Scotland, which makes absolute and total sense. We need to tread warily on this huge issue, which affects all our communities.

I intend to write to the Secretary of State to ask her to share with the Scottish Government the report she will present on fracking to this House and to the Paris conference. I cannot help but note that the Prime Minister’s comment about going “all out” for shale gas in the UK was a little premature. It could involve huge financial costs for companies that have invested in fracking, such as INEOS, as I sincerely hope that fracking does not take place in this country.

10:25

[Neil Parish (Tiverton and Honiton) (Con)]

It is a pleasure to serve under your chairmanship, Mr Howarth. I thank my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) for securing this debate and for the balanced way in which he presented his case, as others have noted.

If I put my national hat on—and given that I am a Member of Parliament for Tiverton and Honiton down in Devon, where at the moment there is no notion that there will be fracking—it is easy for me to say that it is good for the country to have a great gas supply, so we must make sure that we get on with fracking. From the national perspective, that is absolutely right, but as a Government, we are keen on taking local people with us, and—dare I say it—at the moment we do not seem to be doing terribly well on that. All the locals are turning fracking down. We are going to have to rethink our approach to all this. We have to make sure that we do not simply talk about a sovereign fund that might help local people. We must be much more up front. How does an industry like fracking help local people? They have to see something tangible before they buy into it.

If I put on the hat of Chair of the Environment, Food and Rural Affairs Committee, we of course are concerned about our land, food production and groundwater. In the previous Parliament, the Committee was assured that when fracking takes place the water used is well beneath groundwater sources and the area from which we extract water to purify for drinking water—but is that the case? I agree with my hon. Friend the Member for Horsham (Jeremy Quin) that we cannot simply have a blanket licence from the Environment Agency; each case has to be looked at individually.

Putting my Conservative hat on, I want to make sure that we are competitive and have an efficient industry. In this case, we must have an industry that extracts the gas—that is absolutely right. We still use an awful lot of gas and will still do so in future; if we do not use Russian gas, someone else will, so the gas we can extract for home consumption has to be good, but that gas should not be brought out of the ground at any price. If we need to put in more pipelines, reduce lorry movements and improve roads in villages and other areas where there are proposals for help with infrastructure, we have to do so. I was a Member of the European Parliament for 10 years, so everything in Europe is my fault—I just put that on the record. I look at the French: now, I do not always agree with the French, but I acknowledge that when it comes to exploiting resources, they put in all the infrastructure necessary for local people’s lives to be enhanced.

I say to the Minister, who is a very good Minister, that we must make sure that local people buy into fracking much more than they are doing at the moment. If we are going to stick to our principle that local people decide—I think we should—we are going to have to reassure them a great deal more about environmental safety, especially on water, and make sure that fracking is properly monitored. In evidence to our Committee, the Environment Agency said it had the capability to do that, but people need to be reassured that that is the case and that the agency will not be overstretched.

Another problem is that, while all of us can be experts beforehand on whether the gas will or will not come out, we cannot know until we have a number of wells in place whether the ground will actually give up the gas. We know the gas is there, but we are not certain that it can be got out. We may not, in the end, be able to produce the gas we expect, although we may be able to produce a lot more, which is very exciting.

There must be a balance: as we move forward, we must take local people with us, reassure them about the environmental position and reduce the number of lorry movements by piping more gas, however expensive that may be. In that way, the local population will, in the end, be able to buy into these projects, and our green and pleasant countryside will remain green and pleasant. We have a large population, and we want to keep our green spaces and our food production.

[Rachael Maskell (York Central) (Lab/Co-op)]

Is not the problem that we are taking a piecemeal approach to licensing exploration, as opposed to a strategic approach that looks at the real impact the industry will have across our land?

[Neil Parish]

The hon. Lady makes a good point, which I am sure the Minister will address.

I will leave my comments there, because others want to speak, and it is right that everybody has a chance to debate this issue. Again, I thank my hon. Friend the Member for Thirsk and Malton.

10:31

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

I too thank the hon. Member for Thirsk and Malton (Kevin Hollinrake), and I congratulate him on securing a debate on this important national issue. I was interested to hear the hon. Member for Tiverton and Honiton (Neil Parish) take all the blame for what has gone wrong in Europe. I am pleased, at long last, somebody has done that.

My position on this issue is clear, definite and unambiguous: I will not be in favour of hydraulic fracturing, or fracking, while there is any reasonable suspicion that it has a negative impact on the environment and public health. There is still a lot of work to be carried out on that. The Government have progressed the matter too quickly.

It is easy to say that fracking in the bigger states of America is positive and produces a massive supply of energy. We need to compare those states with some of the areas we have heard about today and with my constituency, where there is cross-border exploration between Northern Ireland—in other words, the United Kingdom—and the Republic of Ireland. It is clear that we cannot compare a small, densely populated area such as mine with the vast, sparsely populated areas in America that are carrying out fracking. There is no comparison at all, but the Government have not taken that on board.

In Fermanagh and South Tyrone, we set up a group to investigate fracking. Anyone who wants a report that is positive about fracking can find one, while anyone who wants a report that is directly opposed to it can find one too, so we set up our own group to look at the issue. The group, which contained someone from the medical profession, solicitors, business people and farmers, came up with three recommendations, which I fully support.

The first is that we cannot progress with fracking unless there is a full, independent—I stress “independent” —environmental impact assessment that demonstrates that there will be no negative environmental impact. Secondly, there must be a full, independent public health impact assessment. Members have talked about public health, but it is not always given the importance it should have, and it is sometimes overlooked. We must therefore have confirmation that there will be no negative public health impact. Thirdly, there needs to be an economic appraisal of how good fracking is not only for the UK, but for local people. What will they get out of it economically? Will their land simply be taken off them and vested in someone else? Will trucks drive through their areas? Will they have monstrous structures on their back doorsteps? Will they get a reduction in their rates or council tax? Will there be a direct economic benefit for them, or will the big companies come in and take all the benefits? That is something people will not comprehend.

The hon. Member for Tiverton and Honiton indicated that we have not been good at taking people with us. That will not happen unless the three points I mentioned are dealt with and it is shown that fracking is not harmful to the environment or public health and that it provides an economic benefit to local people. That is the position of the Ulster Unionist party. I should make it clear again that the Government have moved on too quickly.

[Several hon. Members]

rose—

[Mr George Howarth (in the Chair)]

Order. I am afraid I have to allow time for the two Front-Bench speakers, and the spokesman for the Scottish National party also has to take part. I will have to restrict the remaining Back-Bench speech to three minutes. I call David Mowat.

10:36

[David Mowat (Warrington South) (Con)]

In my three minutes, I shall make just a couple of quick points.

Although I support fracking, I agree with the three points made by the hon. Member for Fermanagh and South Tyrone (Tom Elliott): there can be no issue with public health, we should have done more to bring local benefits to the fore, and the environment cannot, of course, be damaged. In the end, those things will have to be assessed by people who are independent and have the confidence of the local community. As my hon. Friend the Member for Tiverton and Honiton (Neil Parish) said, it is clear that, whatever else we take from the debate, we must accept that we have not brought local people with us on fracking. However, every form of energy has issues, whether it is solar, wind or nuclear, which is still by far and away the dominant form of decarbonised energy in the world. Fracking also has issues, and we have to work through that to decide whether fracking is worth it. Members have said that fracking may not be cost-effective, and if it is not, it will not be done, so that problem goes away.

I want to talk a little about the three elements of UK energy policy: low-cost energy, sustainable energy and energy security. Gas has a major role to play in all those, but the fact is that our own gas is running out. Output from the North sea is 70% of what it was 10 years ago. Some 85% of the energy used in this country still comes from fossil fuels, with coal and oil making up by far and away the majority. If we could replace all the coal being used in the world with gas, that would reduce global carbon emissions by the same amount as a fivefold increase in renewables. That is something we should be going after, and parties that believe in a low-carbon future should embrace it. There are, therefore, environmental advantages to fracking.

We have talked about cost, and it has been said that fracking in the UK may not transform the economy, as it has in America. In the United States, there is massively lower fuel poverty—I have not heard those words today. We may well not succeed in reducing our gas bills by a factor of four, with the same transformative impact that has been seen in American manufacturing. Manufacturing is relocating from parts of the UK.

[Peter Grant (Glenrothes) (SNP)]

Does the hon. Gentleman not accept that the reduction in gas prices in the United States of America simply will not happen in the United Kingdom, so it is not appropriate to talk about fracking being a game changer in terms of reducing fuel poverty?

[David Mowat]

In an intervention I said I thought it unlikely that gas prices would be reduced by a factor of four. I also think it unlikely that if we have more gas in Europe there will not be a reduction in gas prices, with a knock-on impact on fuel poverty and on the competitiveness of our chemicals industry, what is left of our steel industry, and our aluminium industry. Those industries have to a large extent left our country, not only for south-east Asia but for other parts of Europe with lower energy prices than ours where coal continues to be burned.

The issue before us is the fact that we produce roughly 80 GW of electricity in this country, and 24 of them will be turned off by the end of the decade. We already have a 2% capacity margin for 2017. Members in this Chamber—not just those on the Front Benches—must be accountable on the question of the lights going out. Shale gas is not a panacea and I do not argue that it is, but we should explore it responsibly and take into account the environmental issues raised today. However, we should not fail to understand that our country is not infinitely rich. The resources in the North Sea that kept large parts of our country going for a long time are running out. We import more and more of our gas from Qatar and increasingly, potentially, from Russia. Parliamentarians all have a role, and a responsibility for the UK as a whole to take those issues seriously.

10:40

[Callum McCaig (Aberdeen South) (SNP)]

I thank the hon. Member for Thirsk and Malton (Kevin Hollinrake) and congratulate him on obtaining the debate, and on his impeccable timing, given the news on the decision in Lancashire. Time is clearly of the essence, so I shall crack on.

Five themes have been brought out in the debate, and alignment between them is needed if fracking is to be a viable part of the energy mix: safety, public support, climate change, how that fits in with the total energy mix, and economic viability. Dealing with this is to be devolved to Scotland. Scottish Ministers have suggested a moratorium while concerns are explored. That is welcome and it will go a long way towards ensuring that discussions on the food and drink and tourism industries, which my hon. Friend the Member for Falkirk (John Mc Nally) mentioned, are not put in jeopardy by fracking.

There is a question about whether new licences will be issued while the process is going on—it has been suggested that they will not—and there is also a question about licences that have been granted, and how they will be considered when things are devolved. I think there are issues about the economics. If we are to have a truly safe regime it needs to be gold-plated, but that is likely to be more expensive, and I understand that it will be more expensive in the UK than it would be in the United States. Doing things more safely than they are done in the United States, from a more expensive cost base at the start, with gas prices considerably lower than those of a number of years ago, brings the economics into question. I take the point that if shale gas extraction is not economic it will not happen, but we need to consider that when time is spent on exploring.

Perhaps the biggest issue is not economic viability or whether shale gas will change our dependence on fossil fuels, but whether it would be the best use of this country’s resources, from the carbon dioxide point of view, and whether we are going to meet our objectives on reducing carbon emissions. Shale gas will produce more.

[Antoinette Sandbach]

Will the hon. Gentleman give way?

[Mr George Howarth (in the Chair)]

Order. Time will not be added on for this intervention.

[Callum McCaig]

Perhaps the hon. Lady will be brief.

[Antoinette Sandbach]

Does the hon. Gentleman accept that burning coal is more deleterious than shale gas, which has a lower carbon footprint?

[Callum McCaig]

I certainly do, but it has been pointed out that other technologies could be better. In the context of carbon, when we extract more resources we need to make sure that we get the best ones and the biggest bang for our buck. As I represent Aberdeen, and given the continuing potential of the North sea, I wonder what effect investigating new onshore gas will have on the well established offshore industry, which makes an immense contribution. That needs to be considered along with the entire energy mix that we are considering.

10:44

[Julie Elliott (Sunderland Central) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Howarth. I thank the hon. Member for Thirsk and Malton (Kevin Hollinrake) for securing the debate. That fact that 18 Members from four parties have taken part shows how important and pressing the subject is for many parties. I know the Thirsk and Malton area well and acknowledge its beauty. My train stops there on the way down to London and on the way back, although I have another hour to go then.

This is the first debate I have participated in from the Front Bench on the subject of shale gas. Before the election my former colleague Tom Greatrex, who was the Member for Rutherglen and Hamilton West, looked after this area of policy. His expertise on energy policy was recognised on both sides of the House and I am sure that Parliament will miss his knowledge and good humour.

Our position on shale gas was formally set out in debates on the Infrastructure Act 2015. We made it clear that there should be no shale gas extraction without a framework of robust regulation and comprehensive inspection. Regrettably, the Government have consistently sidelined our legitimate environmental concerns, and those of the public, in a headlong dash for gas. Speeches from different parties today supported that view. With 80% of homes in Britain still reliant on gas for heating, shale gas may have a role to play in displacing some of the gas that we currently import, boosting our energy security; but I want to make it clear that that potential worthwhile benefit must not come at the expense of robust environmental protection, or our climate change commitments.

During the passage of the Infrastructure Act 2015, we were clear about what changes were needed. The Government initially accepted Labour’s amendment to overhaul the regulatory regime for shale gas by introducing 13 vital measures before extraction could occur. That was a huge Government U-turn and a great victory for the protection of Britain’s environment. However, in the House of Lords the Government watered down five of those crucial commitments.

The Government watered down regulations to prevent fracking under drinking water aquifers, ignoring the existing definition of such areas and insisting on the need for a new definition—thus scope was opened up for the weakening of the measure through leaving some areas out. They weakened regulations to prevent fracking under protected areas such as national parks, dropping our proposal to prevent fracking “within or under” protected areas. Instead, they indicated that they would block fracking only “within” them, creating the prospect that protected areas such as areas of outstanding natural beauty and national parks could be ringed by operators fracking underneath them. They dropped requirements for operators to notify all residents individually of potential developments, and to monitor all fugitive emissions—not just methane. Finally, they weakened regulations requiring an environmental impact assessment at all sites.

We tabled an amendment to reverse those changes, but were denied a vote. There should be no shale gas developments in the UK unless those protections are re-introduced. It is right that individual applications should be decided at local level, as has been outlined this week. It is not the place of central Government to become involved and to trump local democracy. That is the Eric Pickles way of doing business. It is not mine, nor that of my right hon. Friend the Member for Don Valley (Caroline Flint). However, the decisions made in Lancashire in the past few days and people’s concerns reflect the fact that the Government have repeatedly ignored genuine and legitimate public concern in a dash for shale gas at all costs.

Does the Minister accept that the continued public concern over shale gas extraction might be caused, at least in part, by the Government’s refusal to address their legitimate concerns? Does she agree with me that the best approach would be to accept, as they have once before, the amendment that Labour tabled to the Infrastructure Act 2015, which would ensure there was a robust regulatory framework? Without that, people will not have the confidence they need and to which they are entitled. I look forward to the Minster’s reply to those concerns and to the crucial questions of many colleagues. There is public concern across the country, as yesterday’s events in Lancashire showed. I hope she will address those things directly, so that the public can be fully informed of the issues in this important debate about how we can safely and most cost-effectively meet our energy needs and our climate change commitments.

10:49

[The Minister of State, Department of Energy and Climate Change (Andrea Leadsom)]

It is a great pleasure to be here today, Mr Howarth. This has been an incredibly valuable and timely debate on the potential of shale gas. My hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) was exactly correct to say that to take advantage of the huge potential offered by shale, we need to get it right, and as the new Minister for energy, I can assure him that making sure we get it right is a key focus for me.

My hon. Friend the Member for South Ribble (Seema Kennedy) mentioned that often, the people who object to shale are called nimbys or luddites, and she is also exactly right. I would never call those with local, very well founded concerns nimbys or luddites. Plenty of people in my constituency have concerns about all manner of things, ranging from HS2 to wind farms, to anaerobic digestion plants. They are not nimbys or luddites, but local communities who need to understand better. My priority will be to reassure them and, yes, to use an element of persuasion. As my hon. Friend the Member for Tiverton and Honiton (Neil Parish) pointed out, we need to take local people with us, so that will be my absolute focus.

[Julian Sturdy (York Outer) (Con)]

The Minister is absolutely right about taking local people with us. The whole debate about fracking is ultimately about trust, as has come out loud and clear in this morning’s debate, but sadly, findings of the Government’s “Shale Gas: Rural Economy Impacts” report were redacted. That does not fill people with trust, so will she encourage the relevant Minister in the Department for Environment, Food and Rural Affairs to publish that report as soon as possible?

[Andrea Leadsom]

The report is going to be published. The timing is up to DEFRA, but I share my hon. Friend’s concern that it should be made available to the public, so that they can draw their own conclusions.

I want to mention that my hon. Friend the Member for Fylde (Mark Menzies) was keen to speak up for his constituents, but sadly, there was not the time. My hon. Friend the Member for Warrington South (David Mowat) rightly pointed out that keeping the lights on is a key and critical role of Government, and that shale has the potential to contribute to that. We need home-grown energy more than ever before, so we in this Government remain committed to renewables, which now provide 15% of our electricity. We are also committed to energy efficiency and, vitally, to affordability. Shale gas could be a pragmatic, home-grown solution to help meet those needs.

Gas is the cleanest fossil fuel. It still provides a third of our energy demand and we will need it for many years to come. Around 70% of the gas Britain uses is for heating, and many people in businesses will need to keep using gas for heating while we develop and deploy renewable heat sources. We are likely to continue relying on gas to provide much of our heat, as well as to generate electricity into the 2030s, but even with our projected doubling of renewable capacity by 2022 and the planned creation of additional nuclear-fuelled generation in the 2020s, increases in gas-fuelled generation will be needed, as we phase out unabated coal. Flexible electricity generation, such as that fuelled by gas, is also needed to help balance the electricity grid as our policies bring forward relatively inflexible and intermittent low-carbon generation.

We used to be net gas exporters, but that is no longer the case as North sea gas declines. By 2025 we expect to be importing over half the gas we consume. Meanwhile, events around the world show us how volatile energy supplies can be. Developing shale gas could make us less reliant on imports from abroad while providing more jobs and creating a whole new British industry. It is therefore vital that we seize the opportunity to at least explore the UK’s shale gas potential while maintaining the very highest safety and environmental standards, which we have established as world leaders in extracting oil and gas over decades.

I fully appreciate, of course, that many people are worried by the stories they have heard about fracking, so I want to address, as a key point in my remarks, the most important and overriding concern of shale gas exploration, which is safety. Reports by the Royal Society, the Royal Academy of Engineering and Public Health England have considered a wide range of evidence on hydraulic fracturing in a UK context, concluding that risks can be well managed if the industry follows best practice, enforced through regulation. We have one of the world’s most developed oil and gas industries in the North sea basin and some of the world’s most experienced and highly regarded regulators. We have been successfully regulating the gas and oil industry in the UK for over 50 years. Our regulatory system is robust and we are proven world leaders in well regulated, safe and environmentally sound oil and gas developments. We have strict requirements for on-site safety to prevent water contamination and air pollution and to mitigate seismic activity.

The health and safety and environmental regulators are independent, highly specialised and well trained and will enable the development of shale gas in a safe and environmentally sound manner. Regulators simply will not allow unsafe or environmentally unsound operations. They are able to suspend and revoke permits immediately, and if necessary, impose criminal sanctions, including prosecution.

[Mark Menzies]

As the Member of Parliament for Fylde, I am very reassured to hear what the Minister is saying. However, will she assure me that as well as the planned inspections, some will be unannounced?

[Andrea Leadsom]

I can give my hon. Friend that reassurance. It is certainly intended that there will be regular visits from health and safety and Environment Agency staff, and that there will be unannounced visits.

[John Mc Nally]

Will the Minister give way?

[Andrea Leadsom]

No, I am sorry. We are really short of time—I apologise.

The Environment Agency assesses the hazards presented by fracking fluid chemicals on a case-by-case basis. They will not permit the use of hazardous chemicals where they may enter groundwater and cause pollution. The Health and Safety Executive scrutinises well design and requires week-by-week written updates on drilling progress. DECC has implemented a thorough system of rigorous checks before any drilling or fracking, as well as a live traffic-light system during the actual operations to ensure that earthquakes will not occur.

To reinforce the regulations further, the Infrastructure Act 2015 introduced a range of further requirements if an operator is to carry out hydraulic fracturing. They include a mandatory environmental impact assessment, which is absolutely vital. There was a misunderstanding that fracking would not require an environmental impact assessment, but that is not the case and DECC has tried to remedy that misunderstanding. Any hydraulic fracturing will require separate independent environmental impact assessments. Additionally, unlike in the United States, in this country disclosure of all chemicals used in the fracking process and 12 months of baseline groundwater monitoring will be required. There will be specific community benefits to be paid and the complete exclusion of protected areas. We already require everything that has been recommended by the European Commission.

To summarise on safety, we have among the best and most experienced regulators in the world and a 50-year track record on safe oil and gas exploration. Our regulatory environment for shale is the toughest in the world, but it is also important to discuss the enormous potential benefits of a successful shale gas industry, not just in energy security, as I have said, but in direct benefits to jobs, growth and community investment.

Ernst and Young has estimated that a thriving shale industry could mean 64,500 jobs nationally or over 100 jobs per year at a typical site. The value of the supply chain for the industry has been estimated at £33 billion between 2016 and 2032. This is an incredible opportunity. We are at a pre-beginning phase, but there is a huge amount to play for. British engineering is at the forefront of the world and we have the opportunity to showcase that further by developing for ourselves a safe and environmentally sound shale gas industry. In November, we announced a new national network of colleges for onshore oil and gas to train the next generation of specialists to help the UK seize those opportunities.

The final, very important, point I want to address is the position of local communities. We believe that every community hosting shale should share in the benefits, so we have committed to setting up a sovereign wealth fund to ensure that revenues are shared fairly. We welcome industry’s commitment to putting £100,000 per fractured exploration well to local communities and then a minimum of 1% of any subsequent production revenues. That could be worth as much as £5 million to £10 million over the life cycle of the well. Wider communities will also benefit, as local councils will retain 100% of the business rates that they collect from productive shale gas developments.

I sincerely thank all Members for participating in this debate. It is important that we have the opportunity to discuss such a key issue for our future energy mix. As the UK’s Committee on Climate Change said of shale gas in 2013

“the UK will continue to use considerable, albeit declining, amounts of gas well into the 2030s”,

and

“if anything using well-regulated UK shale gas…could lead to lower overall…greenhouse gas emissions than continuing to import”

gas.

Question put and agreed to.

Resolved,

That this House has considered shale gas.

Ampthill Primary Care (Parking)

Tuesday 30th June 2015 Westminster Hall

11:00

[Nadine Dorries (Mid Bedfordshire) (Con)]

I beg to move,

That this House has considered Ampthill primary care and parking.

It is a pleasure to bring this debate here under your chairmanship, Mr Howarth. I spend many hours sitting in the Chair that you are in at the moment, so it is a pleasure and delight to be on the other side, representing Ampthill residents and GP surgeries. It is also a delight to have this Minister—my friend and constituency neighbour—answering the debate. It is worth putting it on record that he is not only one of the nicest and kindest MPs in Parliament, but someone who is absolutely deserving of his position. It is an honour to present this debate to him.

I would like to begin by discussing Ampthill. I hope that I will not disclose anything that I should not here, but my right hon. Friend and I have bumped into each other in my constituency on more than one occasion, not least when he was checking out the new Waitrose store opposite the area that I am about to discuss. I would like to set the scene by talking about the Ampthill surgeries and the problem we have, before I go on to some of the finer points.

Just off Oliver Street in Ampthill is about an acre of land, on which sit three GP surgeries, a fire station and a nursery and playschool. It is an incredibly busy area. Unfortunately, only a few months ago, for reasons that I do not fully understand, a car left one of the car park places and went through the windows of the GP surgery into the waiting room. There is a constant feeling of panic, anger and fear in the car parks. I myself have witnessed on a number of occasions cars not only mounting the kerbs, but mounting the kerbs—it is a very narrow kerb; there is limited kerb—where elderly people are walking. I was myself the subject of a road rage attack at the GP practice just a few months ago. There is nowhere for people to park when they visit the doctor, so people become very distressed. Many drive away, which leaves the GP appointments unfulfilled. Many just abandon their cars to get into the doctor’s practice, which causes chaos. Many people become very stressed and agitated, and start shouting not only at the receptionist, whose fault it is not that there are no car parking spaces, but at each other out in the car park.

At 9 o’clock in the morning, there is a stream of cars arriving to drop children off at the nursery and playschool. Around the outside of this area of land are the doctors’ practices, with their allocated car parking, but in the middle of this very congested area is the shabby prefabricated building that is the playschool. A constant stream of traffic is coming in to drop children off and going out again, leaving people with appointments from 9 am in a desperate state as they try to get to the surgery.

During the general election campaign, I was visiting my doctor’s surgery with a member of my family. I could not park, so I dropped my mother off to go in and was hovering around trying to get a place when a couple knocked on my car window and begged me to do something about the car parking. Then I was driving along and someone else did exactly the same thing. The fact is that I had already tried to do something. I had brought the situation to the attention of the local Central Bedfordshire Council. I set up a petition in the GP surgeries and was astonished that within no time thousands of people had signed the petition, which I will present to Parliament. People are desperately concerned that something very serious is about to happen in that car park area.

I ask the Minister whether, as part of the solution that I will come to, he will come with me to see the area so that he can understand what I am talking about, because I think it has to be seen to be understood. It has to be seen to be believed—how bad it is. He could talk to some of the reception staff, who are on the end of patients’ anger, upset and stress and have to answer to the doctors as to why people cannot get in for their appointments or blood tests—because they simply cannot get out of their cars.

The situation is exacerbated because the doctors’ surgeries in Ampthill are so good. The doctors are excellent; the reception staff are too. We all know the gatekeepers from hell who usually have those jobs in a doctor’s surgery. We do not have that in Ampthill surgeries; we have compassionate, understanding and extremely helpful staff in those surgeries. I think it would be good for the Minister to meet those staff and hear their story as well, because I will need his support to find a solution.

In their wisdom, SEPT—South Essex Partnership University NHS Foundation Trust—decided earlier this year to reallocate 20 district nurses to this incredibly congested area, so that it would be used as a base by those nurses, with their cars, even though there was nowhere for them to go. So an already very tense situation was made 20 times worse by 20 more cars turning up daily in the area. People are already afraid and an accident has already occurred, so for that to happen as well is exasperating for everyone concerned, staff and patients alike.

Some action has to happen, and soon. The status quo is not acceptable. I wanted this debate today because I wanted to put this on the record. I want it on the record, if something does occur in this area, that the problem had been noticed and people had been notified and that, on behalf of the doctors, staff and patients, I, Central Bedfordshire Council and others were trying to reach a solution to ensure that something did not occur.

There are a number of options. I will describe what would be the best scenario for this area, because the GP practices are not in the best condition. They are in shoddily erected, prefabricated buildings. People will know the kind of thing I am talking about; when a town is growing, infrastructure is hastily put in place. They are not the best facilities. The ideal solution would be for us to have a polyclinic—a new, purpose-built facility. We could amalgamate the three surgeries and have one new facility that provides enhanced services compared with what we have now. A number of patients, such as those needing INR—international normalised ratio—testing and other testing, have to travel to Bedford for services that, in this day and age, should be available at their GP practice.

The ideal solution would be a brand-new, off-site, purpose-built GP practice. That is what I would like to push for, because it is what Ampthill needs, and it needs it because it is growing. New houses are being built. It is a very popular, central destination in Mid Bedfordshire. It is very close to Flitwick train station. Interestingly, the patients who attend Ampthill surgeries come from areas in a 20-mile radius. They come from as far away as Wootton, Toddington, Flitwick and Barton-le-Clay. Patients from all over the area attend Ampthill surgeries. In fact, one of the people who are leading the campaign and part of the patient representative group is a patient who lives in Wootton. Because of the excellence of the GP practices, they attract patients from a wide area. The ideal scenario is for us to recognise what a good GP, primary care situation we have there, and to take that and move it to a purpose-built building.

Another scenario would be to demolish the shabby prefabricated building that is the playschool and move the playschool somewhere within Ampthill where there is not the constant congestion and traffic fumes all day long around the facility or the enhanced danger that comes from such dense traffic going in and out of the area. That is another solution—to move the children away. There are buildings in Ampthill that could be used in any of those situations.

The solutions are not easy, but no solution ever is. I have found, as an MP and in other aspects of life, that whenever anyone proposes an obvious solution to a problem, someone will always come along with 100 reasons why it cannot happen. Too often, people who would otherwise be required to put a great deal of imagination and effort into finding a solution simply say, “We can’t do that.” We must dispense with the words “We can’t do that, because” and look for ways we can do this. We need to come up with imaginative proposals, knock down a few barriers, chuck a few of the excuses out of the window and find a solution. I am concerned about the fact that too many people are treading water. Instead of meeting their responsibility to find a solution, they are finding excuses for continuing with the current untenable situation.

If anybody suggests as a reason for inaction that there is no popular support, I have a petition with the signatures of thousands of people, all of whom expect action. Ampthill residents expect something to happen. There has been extensive new development in Ampthill, from Fallowfield to Ampthill Heights, but most of the section 106 money from those developments went into education. I do not decry that fact; I simply point out that in Ampthill not everybody has children, but everybody needs to use the NHS facilities. The elderly do not have young children, but they are some of the biggest users of NHS surgeries. The GP receptionist told me that many people ask for late evening appointments so that they can avoid the pre-school traffic, because they think that parking will be less congested. Unfortunately, the situation is quite bad at that time of night, because that is when everybody comes out of work and wants a GP appointment.

The local feeling is that we need to find a solution, and a polyclinic would be an ideal one. More than anything, however, we need money. I know that NHS England has money from section 106 allocations that belongs to Ampthill residents. That money is sitting in NHS England. I am not sure exactly how much it is, but I have been told various amounts, from £8,000 upwards. It belongs in Ampthill, and it should be spent on primary care in Ampthill. There is no better cause to spend it on than the parking situation at the Ampthill surgeries.

Other people have to come to the table, including Central Bedfordshire Council and the GP practices. As fundholders, they should bring their allocation. The whole thing should not rest on the shoulders of the GP practices, Central Bedfordshire Council or NHS England, however; we need partnership working to find a solution. I have asked my right hon. Friend the Minister whether he would come and visit the surgery. What I would prefer is a meeting, with him, the fundholders, Central Bedfordshire Council and NHS England, and me, so that we can all work together to thrash out the solution we need for Ampthill, to make visiting the GP practice—something that nobody ever does willingly or happily—a less stressful, tense and sometimes turbulent affair. We must do that soon. I hope my right hon. Friend will agree to that, and I hope he agrees with me that it is a good way forward.

I also hope that my right hon. Friend might have some ideas of his own, and that he might be able to bring to the table something that will reassure the fundholders, the patients, the doctors, the receptionists and the councillors. I pay tribute to the councillors in Ampthill, who have done their bit to try to sort out the problems. I spoke to Mike Blair and Paul Duckett about the matter only recently, and I know that they have tried to do their bit, but they keep meeting a brick wall of: “We can’t do this, because—”. I hope the Minister will help me to bash down that brick wall and find a solution, so that we can work in partnership to resolve this difficult situation. Let us hope that if we do that, we can prevent a tragic and disastrous scenario of the sort that may result if we tread water for much longer.

11:15

[The Minister for Community and Social Care (Alistair Burt)]

It is a great pleasure to serve under your chairmanship, Mr Howarth. Some years ago, I canvassed for the Conservative party in your by-election. I have many happy memories of that time, not least because I had the opportunity to meet regularly almost all the Conservative voters in the constituency, none of whom prevented you from being here.

I thank my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries) warmly for her kind remarks, and I congratulate her on securing this important debate. She was right about a number of things, including my knowledge of Ampthill, where I have indeed bumped into her. She has been an excellent colleague and partner in a variety of matters that affect Bedfordshire, and our two constituencies abut each other. I know Ampthill well because I regularly run in the park and use the tidy tip. The significance of that is that the main street to the tidy tip from my home in Wootton is, of course, Oliver Street, so I know it extremely well. In the world of the future, new technology will make it possible for viewers of our debates to see maps of areas that we are discussing. It would be easy to project a map into a televised debate such as this. However, as we are in a Chamber full of words rather than pictures, I can merely allude to that idea.

My hon. Friend is absolutely correct in her description of Oliver Street. It is a tight street, which is closely parked. Whichever direction they travel along the street, drivers will at some stage have to stop behind parked cars and allow traffic from the other direction to pass. In the area surrounding the surgeries, there is a cluster of buildings and some car parking arrangements that my hon. Friend has described well. I emphasise that I know the street well, and I shall be happy to respond later to her comments on the car parking problems.

I shall start by talking about GP services. My hon. Friend referred in a recent blog post to the growth taking place in Ampthill. She has described the primary care group as “the Cinderella of Ampthill” and said that it has had none of the recent investment or money associated with that growth. I want to address the issue of GP care being a Cinderella service and the question of investment in Ampthill. I pay a particularly warm tribute to all who work in primary care, not least in Ampthill, and in general practice: the GPs, the practice nurses and all others who work for patients. Primary care is the bedrock of the NHS, and although we are all familiar with what happens in hospitals, too often we seem to take for granted the service that patients receive from primary care.

My hon. Friend spoke about primary care in the widest sense, and I echo that. Primary care is much wider than general practice; it is all the day-to-day healthcare provided by healthcare professionals, and thus it includes such professions as district nurses, pharmacies, dentists and other ancillary occupations. Accordingly, as my hon. Friend has said, the trend is for the expansion of primary care facilities to be more than simply GP surgeries, and the Government have recognised that. Recently, in his first speech about general practice during this Government, my right hon. Friend the Secretary of State reaffirmed the Government’s commitment to the primary care infrastructure fund. That is a fund of about £750 million spread over the next four years, which offers practices the opportunity to seek investment in premises for development and the like. Such investment is sought by way of a competitive bid, and that is being taken forward in various waves. If the practices involved have not put in a bid, it is a matter for them. Clearly, £750 million spread across the country will not solve everyone’s problems, but it recognisees the need for some practices to seek to grow and for their premises to have the sorts of ancillary functions that we will all start to take for granted as, hopefully, fewer people go to acute hospitals for treatment that can be carried out elsewhere. The modern practices of the future will do that.

Easy access has to be part of that future. There is no point in seeking to do minor ops at the various ancillary services provided in the community if people cannot park. My hon. Friend spoke about the wide range of places from which these practices draw their patients. Ampthill has a population of about 6,000, but the practices have a total of some 20,000 patients, so the majority of those patients will clearly not be walking but coming by car. It is therefore necessary to ensure that adequate facilities are available. Ensuring adequate parking will be important for the premises of the future.

Primary care probably has the widest scope in healthcare, and it includes patients of all ages, from every socioeconomic and geographic origin and with all manner of acute and chronic physical, mental and social health issues, including multiple chronic diseases. Consequently, a primary care practitioner must possess a wide breadth of knowledge in many areas. Some 90% of all NHS patient contacts take place in general practice, which is why it is important to ensure that modern general practices, and the practices described by my hon. Friend, have everything they require. What many of us think of first when we think about the primary care profession in this country over recent years is that it has developed a wide skill base and body of knowledge. GPs provide a complete spectrum of care within their local community for problems that combine physical, psychological and social components. They attend patients in surgery and primary care emergency centres, if clinically necessary, and they visit patients’ homes. GPs must be aware and take account of all factors when looking after patients.

In his recent speech, the Secretary of State made it clear that he recognises that GPs need to call on an extensive knowledge of medical conditions to be able to assess a problem and decide on the appropriate course of action. They must know how and when to intervene through treatment, prevention and education to promote the health of patients and their families. Recently, the Commonwealth Fund, an independent institute based in the United States, declared that the NHS is the best healthcare system in the world. Although many people assume that to be because of our acute hospital care, the bedrock for the research on which that determination was based turned out to be family care and general practice, which is a further reason for addressing the needs of general practice—in the widest possible sense, from availability to ease of access—as my hon. Friend has done.

Most GPs are independent contractors to the NHS. That independence means that, in most cases, they are responsible for providing adequate premises from which to practise and for employing their own staff. As we have heard from my hon. Friend, GPs are determined to do the right thing in relation to parking. It is noticeable that the three surgeries that serve Ampthill’s population of 6,000, and patients from the wider area, are located within yards of each other in the middle of town. There is already parking for staff and patients, and there is a bus service with a bus stop nearby. Oliver Street is a main through-route in Ampthill. It is busy and narrow, and the presence of a fire station, an ambulance station, a nursery and a school in the vicinity all contribute to heavy traffic, particularly at certain times of the day.

[Nadine Dorries]

I missed out a point that I want to put on the record. A fire engine was recently prevented from leaving the fire station because of congestion caused by cars coming in and out of the pre-school off Oliver Street, which is near the practices. A fire engine being trapped and unable to leave a fire station owing to traffic density is not good.

[Alistair Burt]

There are things that we are able to do and things that we are not able to do. The general traffic issues in the town are, of course, a matter for other authorities beyond the Department of Health, but my hon. Friend makes a perfectly fair point.

In the Houghton Close area, there is pressure on parking for both practice staff and patients. GP practices, as independent contractors, are responsible for providing adequate premises and for employing their own staff. In passing, I want to say a word about the way in which such practices look after their patients, which is entirely relevant. Good things are happening in primary care and in Ampthill. The key test of that is the GP patient survey, which gives patients a chance to comment on the performance of the practice where they are registered. Patients say that the three Ampthill practices—the Oliver Street, Houghton Close and Greensand surgeries—have a good story to tell. Overall, across all measures, the three practices are averaging around 90% satisfaction. Most of us would love to have that degree of satisfaction, although, Mr Howarth, you have that in your constituency, as indeed does my hon. Friend. No score of the practices is below 84%, and the scores are much higher in many domains. For example, all of Greensand’s scores are 90% or above, with 96% reporting satisfaction with their overall experience of the surgery. It is therefore clear that today’s debate concerns what patients agree are good, all-round, high-performing practices. While addressing their needs, I congratulate each practice on its commitment to providing the best service to patients, of which, to a degree, the subject of this debate is an element.

There is pressure on parking in the Ampthill area, which is why there have been recent moves, encouraged by my hon. Friend, to consider what can be done about it. In matters such as land purchases that affect the public sector, it is often advisable to take advice from the district valuer. The Ampthill practices have had discussions with the town council about purchasing a grassed area next to the fire station which they hope to convert to additional parking. NHS England is prepared to contribute part of the cost. However, the decision on whether to buy or sell the land is not for me or anyone in Whitehall; it properly belongs to the prospective purchasers and the landowners.

The town council has made a request to NHS England to fund the purchase and set up a car park to increase parking capacity in the area. The land, once purchased, would not be for the sole use of the practices but would be open to all users. The estimated cost of the land is between £8,000 and £9,000. NHS England has agreed to fund some 25% of the cost, which is believed to be a fair portion of the practices’ proposed usage of the area, with no commitment to recurring costs. NHS England was also asked to provide funding for maintenance of the parking facility. Although NHS England is prepared to contribute to the purchase cost, it is not prepared to fund the maintenance costs because it will not be the dominant or exclusive user.

My hon. Friend made a fair point about the recent addition of some 20 practice nurses in the practices at the request of NHS England, which carries a certain amount of obligation. I therefore hope that we will be able to go back and see what more can be done. In February 2015 the town council’s planning committee considered the matter and advised the practices to discuss it directly with the fire service’s landowners. I will therefore encourage the continuation of that process. We have discussed the matter further with NHS England, which is prepared to think again about the costs involved. Following this debate and the representations we have made, the way is open for my hon. Friend to further discuss the situation directly with NHS England, the town council and Central Bedfordshire Council. I am grateful for the advice of the leader of Central Bedfordshire Council, James Jamieson, to whom I spoke last night. I am pleased to accept the invitation to visit the area more formally, which will give me a great opportunity to speak to the practices involved, to see the situation on the ground and to consider whether there is anything further we can do.

Although this matter is not fundamentally the responsibility of the Department of Health, I acknowledge our interest in ensuring that these practices have what they need to provide what is obviously an excellent service to constituents, to consider the opportunity for purchasing proper parking facilities and to help and liaise in some of the discussions that will take place under other people’s auspices. Finally, I will have a chance to see the situation on the ground, rather than passing through on the way to the tidy tip or another run in glorious Ampthill Park.

I thank my hon. Friend for bringing this matter to the House today. Thank you for your chairmanship, Mr Howarth.

Question put and agreed to.

11:29

Sitting suspended.

Human Rights Act

Tuesday 30th June 2015 Westminster Hall

[Mr Clive Betts in the Chair]

14:40

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move,

That this House has considered the future of the Human Rights Act 1998.

I am delighted to welcome you to the Chair, Mr Betts, and to see that we have a healthy turnout of Members and non-Members here today. I am grateful to the organisations that provided briefings ahead of today’s debate. I should particularly like to place on the record my appreciation of the efforts of Liberty, Amnesty International, and the Equality and Human Rights Commission.

The Gracious Speech included a commitment by Her Majesty’s Government to introduce proposals for a British Bill of Rights. I was pleased that it was framed in such terms for two reasons. First, it is still apparently the policy of Her Majesty’s Government that it should be approached at least on a British, if not UK-wide, basis. Secondly, I was pleased that they are seeking to bring forward proposals and not, as in respect of other commitments in the Gracious Speech, legislation. I take it from that that we are in a place where there is still a debate to be had and where thinking is still going on within government, and I welcome that. I hope that today’s debate is an early part of the debate that will be conducted elsewhere, within the Chamber and the Select Committees in this House and the other place, and even within the various all-party groups. I also hope that this debate will, as befits a subject of this magnitude, be conducted in a thoughtful way and one that accepts good faith and differences on all sides.

The Minister has a significant background in the area of human rights and I do not question his good faith in this matter. I would probably disagree with him both on the definition of the rights and also on the way in which they might be perfected, but I certainly accept his background and his good faith. I hope that the debate in government will not take as its starting point the paper published last year by the former Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), which was entitled “British Bill of Rights and Responsibilities”.

The right hon. and learned Member for Beaconsfield (Mr Grieve), whom I am pleased to see in his place today, said that that paper contained a number of howlers which are quite simply factually inaccurate. Those who have known the right hon. and learned Gentleman for as long as I have will know that for him such language borders on the intemperate. Those within government who are considering how to proceed in this way would do well to listen to his words. I expressed that view at the time as a Cabinet Minister. I felt that that contribution to the debate failed to take proper account of the way in which the Human Rights Act had become part of the constitutional architecture of the United Kingdom.

The right hon. and learned Member for Beaconsfield also asked the question that goes to the nub of the issue: what are we seeking to achieve here? Having seen recent pronouncements within government, that remains the question. To answer that question, however, we first need an answer to a much more fundamental question: what is the Government’s intention in relation to the European convention on human rights? Is it that we should remain party to the convention, or will the Government at some future stage, if they are unable to achieve their stated aims, countenance withdrawal from it?

It is worth reminding ourselves of exactly what the Human Rights Act does and the change that it wrought after its implementation. In a dry legal sense, it allows access to convention rights through our domestic courts. Section 2 of the Act says that in reaching judgment our UK domestic courts must take account of the European Court of Human Rights judgments. Whether this was to be extended to make it a binding precedent was considered in the other place during the passage of the Bill and was expressly excluded, so I think the ambit and the extent of the operation of section 2 is an important part that is often misunderstood or just ignored.

The Human Rights Act has brought much more than dry jurisprudence to our legal system and to our constituents. It has offered many of our fellow citizens a basic, fundamental right to respect and dignity in their dealings with government and other public bodies. To take a few instances, it has allowed people with mental health problems the opportunity to retain some rights and some control over their own lives when dealing with the national health service; it has allowed victims of crime to insist on proper investigation of the crimes from which they have suffered; and it has allowed families to be kept together in circumstances in which the operation of the state might otherwise have kept them apart. At its most basic, it has in one instance ensured the right to life. In one case that was offered by way of a working example, a patient suffering from dementia was on a ward where he had been subject to a “do not resuscitate” order. On investigation, it was found that the doctor in charge of the ward had imposed such an order in respect of everybody on the ward without discrimination. At its most fundamental, the Human Rights Act protected the patient’s right to life.

I suspect that such cases are the easy cases. If we dealt only with the easy cases, we probably would not be here today. There is no denying that the application of the Human Rights Act has produced a number of controversial cases. The cases of Abu Qatada and those relating to the right of prisoners to vote are two that spring most readily to mind. This goes to the heart of the matter for me. Human rights are not just there for the nice people. If we are to defend human rights in a meaningful and worthwhile way, we have to be prepared to defend the rights of the unworthy individual from a legitimate authority, or the right of an unpopular minority against the popular majority. Perhaps I should declare an interest: as a Liberal Democrat, I know what it is to be part of an unpopular minority.

For such reasons, the Human Rights Act is inevitably going to be unpopular in government, because it stops Ministers doing what they might otherwise wish to do and what they might otherwise find it expedient to do. That is why, if the protections are to be meaningful, they must be overseen by the judiciary, and not by Parliament or by the Executive, who are insulated from the mood of public opinion at any given time. That brings us back to the question posed by the right hon. and learned Member for Beaconsfield: what are we hoping to achieve here? In truth, the Abu Qatada case and the right of prisoners to vote are cases that, before the Human Rights Act, would have got to Strasbourg. Those are exactly the sorts of cases that we saw going from this country over the years.

The question that then arises is if we are trying to get round these cases by somehow seeking to repatriate jurisdiction, what does that mean for the United Kingdom’s future as a contracting party to the European convention on human rights? When the Minister responds to the debate, I hope he will answer this question: what is the Government’s position in relation to our continued future as a contracting party to the convention on human rights? Are there circumstances in which the Government would be prepared to leave the convention? Doing so would put us in rather select company: it would be us and Belarus, and that is not the company I envisaged the United Kingdom finding itself in. In previous Parliaments, I worked with Amnesty International and other organisations on the worldwide abolition of the death penalty. I campaigned with various groups in the United States, South Korea, Japan and elsewhere. The UK has tremendous standing on human rights across the world. We would lose a lot if we walked away from the convention and put ourselves in the company of Belarus. We should be doing what we can to bring Belarus within the convention; we should not be seeking to join it outside.

I want briefly to consider the constitutional architecture of which the Human Rights Act is now such an important part. For example, it is hardwired into the devolution settlements in Scotland, Wales and Northern Ireland.

[Fiona Mactaggart (Slough) (Lab)]

Before the hon. Gentleman gets to that issue, he has just been dealing with UK jurisdiction delivered by the 1998 Act. Is he aware of the appalling delays that existed before the Human Rights Act? For example, in the case of Abdulaziz, Balkandali and Cabales, which I was involved in when director of the Joint Council for the Welfare of Immigrants, women were separated from their husbands for seven years before getting a judgment that proved that the then British immigration rules breached their human rights.

[Mr Carmichael]

Indeed; the time it took to get such cases to court—and the need to have the means to do so—was a glaring injustice, and that situation was affected by the introduction of the Human Rights Act. People needed money, or somebody behind them with the means, to get access to human rights. We should not return to that.

On the devolution settlements, the Scottish Parliament and the Welsh Assembly both have the Human Rights Act hardwired into them: their Acts must be compatible with it. It has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention. Given recent votes in that Parliament, I do not see how that is going to happen.

The situation in Northern Ireland is even more acute, because there the Human Rights Act is the subject of part of the Good Friday agreement. The second part of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

The creation of the Police Service of Northern Ireland and the body overseeing it, the Northern Ireland Policing Board, have given effect to that.

[Ms Margaret Ritchie (South Down) (SDLP)]

The right hon. Gentleman makes compelling points about the need for the Human Rights Act to be retained. In relation to the devolved settlement in Northern Ireland, the Good Friday agreement was enshrined in the Northern Ireland Act 1998, with a direct coincidence of human rights provisions. Is the right hon. Gentleman aware that the Northern Ireland Committee on the Administration of Justice recently stated unequivocally that any breach of human rights legislation, or any plan to withdraw it, would be a breach of the provisions of the Good Friday agreement and of the Northern Ireland Act 1998?

[Mr Carmichael]

Indeed. That illustrates perfectly what I say about the Human Rights Act being hardwired into these agreements, including that settlement. Underpinning that, we should remember that many parties on both sides—in both communities—in Northern Ireland took a massive leap of faith when entering into the Good Friday agreement in the first place. Many of them were prepared to take that leap of faith because of the assurances given by the Government about protecting human rights. Let us not forget that the roots of the civil rights movement are to be found in that conflict; for many people, human rights have always been at the heart of that movement. We should also not forget that the peace process remains a very delicate animal, as was made apparent just before Christmas. We should never take its continuation for granted.

Let me return to the question: what are we seeking to achieve here? If there is a risk to the stability and sustainability of the Northern Ireland peace process, is it worth it? Either there is a UK Bill of Rights with the widest possible operation or we will end up with different standards of human rights protection applying in different parts of this—I use the term advisedly—United Kingdom. That is not what my party, and other parties represented in this Chamber, campaigned for last September. Human rights protection should be uniform across the whole United Kingdom.

I fear that in introducing this proposal the Government have created more problems for themselves than they have realised. I offer the Minister one piece of assistance before I conclude. My learned noble friend Lord Lester of Herne Hill recently delivered a lecture entitled “Do we need a new Magna Carta?” in which he spoke about how human rights can be protected by a British Bill of Rights. I will happily send the Minister a copy, if he needs it.

If we are to move beyond the Human Rights Act, it can only be done in a way that improves, not diminishes, the protection that is available to our citizens.

[Mr Clive Betts (in the Chair)]

We are going to struggle for time, so I am putting a five-minute time limit on speeches. I hope that everyone keeps to that, or makes shorter speeches if they can, to help us through.

14:57

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a great pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael), whom I congratulate on securing the debate.

I will not repeat points made by the right hon. Gentleman, particularly his survey of the benefits of incorporating the European convention into our own law through the Human Rights Act. I will concentrate on what I understand the broad thrust of the Government’s proposals to be, because only by doing that can one start a proper analysis of whether benefits might flow from the proposals that outweigh some of the costs—particularly the costs he identified of problems relating to the devolved institutions and Governments—that are undoubtedly present.

It is worth bearing in mind, of course, that there was talk before we created the Human Rights Act of a British Bill of Rights, which was much trawled over by the Labour party and the Liberal Democrats during the early 1990s. The project was not pursued because there was a realisation, as time went by, that it was a highly controversial proposal that inevitably sought to bring into one place all sorts of suggestions about rights that might be included in it. Indeed, it is noticeable that as a result of the renewal of this debate, prompted by the Government’s approach, lots of interesting papers are being produced on the possibility of having a Bill of Rights—I was reading one the other day by Geoffrey Robertson QC—not all of which are likely to commend themselves to the Secretary of State for Justice, because of their content.

It was because of that realisation that the then Labour Government in 1998 adopted what was in many ways a very conservative—with a small “c”—proposal in respect of simply bringing about incorporation and preserving the principle of parliamentary sovereignty, tweaking the text in one place to emphasise that, where there was competition between freedom of expression and anything else, freedom of expression should be given a high priority; but otherwise simply allowing the law, through the convention’s incorporation, to be interpreted in our courts. I have to say that I entirely agree with what the right hon. Member for Orkney and Shetland said. While there are areas where I have criticisms—I think they are well known—broadly speaking, I think the Act has conferred huge benefits on this country in terms of the accessibility of rights.

It is right that the proposals remain opaque. I do not criticise the Government for that; in so far as they are going away from the proposals published in October, that seems to show a high level of common sense. The question then still arises: what benefits will we get from having a Bill of Rights? I accept that if we wish to have a Bill of Rights that includes rights not protected by the European convention on human rights, such as the right to trial by jury or some practices that might be different in different parts of the United Kingdom, there might be some merit in it; but as long as we remain adherent to the convention, the wriggle room for the Government regarding the convention and its text will be extremely limited—so limited that the ideas prevalent in the Daily Mail that the Bill of Rights would lead to some seismic change in the diminution of rights is simply misleading. We are on dangerous ground indeed if we start to peddle that as a notion to those who seem to be infuriated by the existing rights we have at present.

I was greatly reassured by the Prime Minister’s comments that he had no intention of pulling out of the convention. It would be so contrary to every Conservative philosophical principle of building an international regime for the rule of law and the promotion of rights that I cannot conceive of any mainstream political party embarking on such a course. I was delighted when he confirmed that recently, and I think the Minister may be able to confirm it again this afternoon.

Where does that leave us? The answer is that it leaves us embarking on a project that I am happy to help the Minister with, but one that I think will prove in reality to be extremely difficult, for the reasons given by the right hon. Member for Orkney and Shetland, and that, at the end of the day, will deliver extremely limited benefits—indeed, so limited that I begin to wonder whether the project is worth pursuing at all.

With those thoughts in mind—I keep them general at the moment—I simply wish to assure the Minister that I am more than happy to continue to engage with him and others from the Department in which he serves on this issue. I have all sorts of ideas that I am happy to put forward, but it is important that we get some idea at the outset of what we are trying to achieve. Without that, we are in serious danger of taking a wrong turn.

15:02

[Jeremy Corbyn (Islington North) (Lab)]

I commend the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing this debate. It is timely and important, and I concur with all the points made by the right hon. and learned Member for Beaconsfield (Mr Grieve) on how we approach this subject. We have to be aware that we are all concerned about human rights. Some of us have spent a great deal of time trying to defend the human rights of the most vulnerable people in this country and other parts of the world. I regularly attend the UN Human Rights Council, for example, and see the importance there of having a forum where those rights can be defended, difficult though it may be. It at least gives the rest of the world an opportunity to say to an authoritarian Government, “You are in breach of the universal declaration of human rights of 1948, and there will be consequences if you persist.”

The European convention on human rights, which was drafted by the Tory Sir David Maxwell Fyfe, gives serious levels of protection to an awful lot of people—the right to family life and a number of other things which are frequently quoted against it in relation to immigration law and other matters. I urge those who decided to go down a tabloid road of saying, “All that matters is to get rid of the controversial Human Rights Act,” to be specific about what they want and what they mean by that. It seems to me that the agenda behind it is to walk away from the convention on the basis that it somehow interferes with our laws and rights. Well, at one level, any time any Government or Parliament anywhere signs a treaty, of course to some extent it reduces their powers and their unfettered ability to do something. That is the whole point of a treaty. By signing up to a convention that covers the whole of Europe, it means that we support a basic level of human rights for people across Europe.

[Alex Chalk (Cheltenham) (Con)]

Is it not important to draw a distinction between the convention and section 2 of the Human Rights Act? The point made about the Human Rights Act is that it incorporates the convention into English law. There were convention rights in the United Kingdom and in particular in England before the Human Rights Act. Section 2, which requires that the courts “must take into account” the acts of convention bodies, could be repealed without coming out of the convention. It is important to draw that distinction.

[Jeremy Corbyn]

That is an interesting point, but I am not sure the hon. Gentleman is correct. My right hon. Friend the Member for Tooting (Sadiq Khan) is about to correct me to correct him.

[Sadiq Khan (Tooting) (Lab)]

To clarify the apparent misunderstanding among Government Members, section 2 of the Human Rights Act is quite clear. The former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), was careful to remind the House of the careful steps that the Government went through before 2000. Section 2 says that UK courts and tribunals should take account of Strasbourg case law. It is not that they have to do so; it is possible for a UK court to consider and then ignore the jurisprudence. The understanding is that it is about taking account of, rather than blindly following the jurisprudence.

[Jeremy Corbyn]

It says “take into account”, and that is what it means. In forming the judgment, the court “must take into account” the convention. The court might decide—it sometimes does—

[Alex Chalk]

indicated dissent.

[Jeremy Corbyn]

Shake your head as much as you like, you will still have your head on your body.

[Mr Clive Betts (in the Chair)]

Order. My head and my body are not a subject of discussion at this stage, so the words “you” and “your” are not appropriate.

[Jeremy Corbyn]

Thank you, Mr Betts. May we get back to the question of the Human Rights Act and what it says? It incorporates the convention into British law and requires courts to take account of the contents of the convention and the rights within it. The Conservative party’s love affair with the tabloids before the last election was all about walking away from this controversial thing because it interfered with British law. Interestingly, the Government, in the person of the Foreign Secretary, now say that we will not leave the convention, but that we might not operate within the purview of the European Court of Human Rights in the future. I am not sure how those two things can be put together. The Foreign Secretary said he will restore rights to British courts, but the rights of British courts have never actually been taken away; they have been asked to take into account an important convention.

The politics are simple. If Britain withdraws from the European convention on human rights and sets up a British Bill of Rights that is outwith that convention and may have all kinds of things within it—good, bad, indifferent, appalling or wonderful—it sends a message to every other country in Europe. Those countries thinking about withdrawing from the European convention because they have been criticised for their treatment of Travellers, for their treatment of gay, lesbian or transgender people, for suppressing popular protest or for closing down internet sites and suppressing newspapers would be a little bit happier if one country withdrew. If Britain—one of the original authors of the document—withdraws, I suspect that many others will withdraw, and the human rights of the whole continent will be significantly damaged as a result. I urge the Government to think carefully about this issue before they go any further.

The Prime Minister was quick to quote Magna Carta, but then bizarrely went to Runnymede to make a speech saying, in a sense, that he would ignore Magna Carta and withdraw from the European convention. He did not seem to realise that most of Magna Carta has been overturned by subsequent legislation anyway, and I think it is only the section on the right to trial by jury that remains. There was also a fundamental misunderstanding about Magna Carta defending the rights of free people. Unfortunately, the statutes of the time defined free people as those who had been given their freedom by the King. The vast majority of the population—the peasantry—was not given any rights at all.

In St Stephen’s, there is a wonderful painting of King John reluctantly putting his seal to Magna Carta. All the barons are saying, “Do it,” but a peasant is lying on the ground saying, “There is nothing in this for me. This is between the barons and the King.” The principles set out in Magna Carta—I would urge people to visit the Magna Carta exhibition at the British Library—descended through the law in many other ways, on the basis that irrational Government should be held to account for what they do and that everybody should be given rights to stand up for what they believe in, with the rest of society being required to allow them to do so.

I do not know what will be in this British Bill of Rights, if it comes about, but I am pretty horrified by the mood music surrounding it, which is about damaging our civil liberties and rights.

[Sadiq Khan]

Does my hon. Friend agree that, just as judges often made decisions that did not please all the tabloid media before the Human Rights Act was passed, it is possible that judges will make decisions that some newspapers do not find to their liking even after a Conservative Bill of Rights has been introduced?

[Jeremy Corbyn]

It is part of the balance in our constitutional process that Parliament is independent of the Executive and that the judiciary is independent of Parliament. Sometimes, the judiciary makes perverse decisions, and sometimes its decisions upset Ministers and lots of other people. That is the point of having an independent judicial system and of referring to the basic principles in the European convention on human rights—the right to assembly, the right to free speech, the right to know and the right not to be discriminated against.

I urge the Government not to go down this road, but to accept that the contribution made in the aftermath of the horrors of the second world war by the European convention on human rights and the wonderful document that is the universal declaration of human rights, with the work that Eleanor Roosevelt put into it, is part of a narrative of giving rights to everybody around the world, whatever their station. If this country, which prides itself on being the longest continuous democracy and having the longest lasting parliamentary system of government and judicial system, walks away from the European convention, every dictator and every person who is annoyed by international conventions will be a bit happier, and it will be a sad day for those who are standing up bravely for human rights against the most oppressive regimes in the world. Please don’t do it!

15:11

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Mr Betts. I welcome the Minister to his place in what is the Justice Department’s first debate in Westminster Hall.

At the risk of offending both sides, may I suggest that we need to be a bit less theological? I have much sympathy for the points made by the right hon. Member for Orkney and Shetland (Mr Carmichael) in opening the debate, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is a distinguished lawyer. However, I suspect that the truth is somewhere in the middle.

There were human rights protections before the Human Rights Act came into force. The United Kingdom was a signatory to the European convention, and it is worth observing that although Sir David Maxwell Fyfe, in his subsequent career, was not noted for being on the liberal wing of the Conservative party, he none the less thought that the convention was a good and desirable thing. There were protections in the convention that the British courts took account of. It is fair to say that there were also sometimes practical issues about access and implementation, and we should not lose sight of that. The thought, therefore, that the Human Rights Act is a sort of holy grail is probably misleading, and we should not be afraid to think of looking at it again and reforming it. Equally, we should not assume that the convention is a permanent intrusion on the rights of British courts, because that would be wrong too. Let us try to find a way through the middle.

I serve on the Council of Europe’s Parliamentary Assembly and legal affairs committee. Perhaps rather horrifyingly to some people, I also serve on a committee that appoints the judges to the European Court—the idea that a committee of politicians appoints judges may seem odd to us, and that is perhaps an issue we have to look at. The quality of the current Court is, frankly, variable: we have some very good people, and we have some people whose independence does not come from the tradition that we are used to, if I can put it that way. On the other hand, the United Kingdom generally does not have an issue in terms of being at variance with the Strasbourg Court—we have one of the highest rates of compliance with its judgments—so, again, a bit of perspective might be required.

It is perhaps ironic that the Human Rights Act did not seek to create a binding precedent, but the approach taken by our domestic judiciary has frequently got fairly close to that. That is not an issue that withdrawal from the convention, of itself, would address, so we have to be realistic about what can be achieved. In any event, Strasbourg judgments would be regarded as being at least of persuasive value in arguments before our Supreme Court. Simply repealing the Act will not, therefore, make some of the controversy go away, and we have to be realistic about what can be achieved.

On the other hand, bizarre consequences sometimes stem from the Act’s operation, and we perhaps need to look carefully at that. I do not take the view that that would be a signal that we have turned our back on human rights. Britain’s compliance with the convention is rather better than, for example, Russia’s—I do not think we have invaded any of our neighbours recently—so let us put our disagreements with the convention into a bit of perspective.

I hope the Minister will give us a little more assistance on how we go forward. We are committed to a consultation, which is right. In fairness, the Government have committed themselves to a much more significant consultation than that which happened before the Human Rights Act. I would like to know more details of the consultation’s timetable and what form the consultation will take.

[Mr Grieve]

Does my hon. Friend agree that there is one thing we need to look at? In the past, where we have found difficulties, we have legislated in separate legislation—we did that with the Immigration Act 2014. Changing the text of the Human Rights Act may not be the best course of action. If there are areas of difficulty, we can see whether there is separate legislation that is still compatible with the convention that we can introduce.

[Robert Neill]

My right hon. and learned Friend makes a very fair point. I hope the Government will include that as part of the consultation. Some of the things that cause offence to many of our constituents might be remedied more easily in a more appropriate fashion. That is an important point.

The Government are committed to basing a British Bill of Rights on the convention, but we need a little more detail about what “basing” means. For example, are there any rights in the convention that it would not be proposed to include in the Bill? That is critical, because people would be concerned about a diminution of protections. On the other hand, are there areas where the current protections might be enhanced? We need that spelled out at an early stage.

What is the timetable? What is the proposed scope and level of detail of the prelegislative scrutiny? The Justice Committee, which I chair, will be most anxious to be involved in that scrutiny, but other parts of the House will also rightly have to have an input. We also need carefully to address the impact across the whole United Kingdom, because the United Kingdom was a signatory to the convention, and the Human Rights Act was a United Kingdom piece of legislation. It is important that we reflect on all those matters.

I am not perhaps as pessimistic about the prospects for constructive change as my right hon. and learned Friend. Perhaps that is because I am a West Ham supporter, so optimism must come naturally to me—something that you, as a Sheffield Wednesday supporter, will understand very well, Mr Betts.

[Victoria Prentis (Banbury) (Con)]

I am glad my right hon. and learned Friend is a optimist—he may need to be in the present circumstances. One subject we may be able to address in making any changes is extraterritoriality, under article 1, particularly with regard to the military. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) may have touched on that when he talked about the possibility of other legislation being the way forward.

[Robert Neill]

I am grateful to my hon. Friend for that promotion, which is unexpected and undeserved on both counts. I always look forward to the future with optimism as far as those two matters are concerned. Extraterritoriality is an important issue. It has exercised those involved in a number of recent Court judgments, and it is precisely the sort of area where we might find a proportionate and sensible way forward.

I hope we will engage with the profession on these issues, because there is a great deal of knowledge and understanding about this issue. We tend to regard what happens in the Strasbourg Court as a bit of a sideshow, and that would be a mistake, whatever side of the argument we are on.

[Sadiq Khan]

I congratulate the hon. Gentleman on his election as Chair of the Select Committee, and I wish him well. He talked about potential reform of the Human Rights Act. Does he envisage, and is he optimistic about, there being additional rights, or does he think the Government intend to take away rights that are in the Act?

[Robert Neill]

That is the question the Government need to answer. The phrase “based on the convention” is important. I do not say that every bit of the convention’s wording is absolutely perfect in modern terms, but I think most of us would say that we want the principles that underpin the convention to be incorporated in any proposals. For what it is worth, my early urging to the Government is that the closer they stick to the convention’s wording in anything incorporated into British law, the better, because that would give us great clarity and security. Then we must look at the point raised by my right hon. and learned Friend the Member for Beaconsfield and my hon. Friend the Member for Banbury (Victoria Prentis) about the unintended consequences that were not always seen through in the Act, to do with extraterritoriality and related matters. I hope we will get assurances from the Minister on that point.

[Mr Clive Betts (in the Chair)]

I am reducing the time for speeches to four minutes, to try to get everyone in.

15:20

[Jim Shannon (Strangford) (DUP)]

It is a pleasure to speak on this matter. I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on bringing it forward.

It is my belief that we are elected to this place to do the best for our constituents. The best may not always translate as the most popular, but these are the choices that must be made by Members of this House. I cannot say that no good has come from the Human Rights Act—this would be an untruth—but I can, and as an MP I should, question whether it is the best form of rights protection. My conclusion may not please everyone in the House, but it is something that my party and I have deeply considered. We do not believe that it is the best way of protecting rights.

The Democratic Unionist party has long been critical of the Human Rights Act and the way in which it has been interpreted by the European Court of Human Rights. The Act has been abused by criminals and terrorists, who have used spurious challenges to avoid deportation. It has failed to protect the rights of innocent victims adequately. We want laws that assist victims to secure justice rather than enabling perpetrators to avoid it. We support, as a minimum, the reform of the Human Rights Act, to remove the “right to family life” defence against deportation upon conviction for a serious criminal offence.

[Ms Margaret Ritchie (South Down) (SDLP)]

Does the hon. Gentleman agree that his party is part of the institutions? His party leader is the First Minister in Northern Ireland and he is part of those institutions, as is his party. That is deeply enshrined with the Human Rights Act and the Good Friday agreement. Both are co-related; one cannot exist without the other, and central to all of that is human rights.

[Jim Shannon]

Obviously I would not agree with that. We certainly do not adhere to or support the Belfast agreement. We have no affinity with it whatsoever—I will speak about that later, if I can.

Whereas the Human Rights Act in principle was a good thing, once lawyers became involved it changed. A researcher in my office has a BA in law and I understand that she and I agree about this. I sometimes feel when I hear of European judgements that the status of our own judiciary is perpetually challenged by cases in courts where some of those presiding have questionable experience and make questionable rulings. How often do we hear of a European ruling and ask, “How can this be?”? Many is the time I ask this, and others do as well. The ruling on the Abu Qatada case has been mentioned, and it has been revealed that seven out of the 11 top judges at the Court have little or no judicial experience. Our British judges have to go through all the years of professional experience before they get to that position, yet some of the other judges making those decisions do not have the necessary experience or qualifications. How can we accept judicial rulings by those who are not in a position to do their job? That is one of my major reasons for opposing the enforcement of the Human Rights Act over our own law and rulings.

[Robert Neill]

Will the hon. Gentleman give way?

[Jim Shannon]

Mr Betts, I am conscious that others want to speak, and I want to give them the chance.

Four-hundred and twenty-five foreign national prisoners won their appeals against deportation

“primarily on the grounds of Article 8”.

I have some concerns about article 8; perhaps the Minister will give us his thoughts about that.

In response to those who say that any amendment of the Act would be a breach of the Belfast agreement, my answer is short and clear—I am sure that the hon. Member for South Down (Ms Ritchie) will listen carefully to this. The DUP did not support the Belfast agreement and has no affinity with it whatsoever. In fact, it has long argued that the United Kingdom should have a Bill of Rights that recognises and respects the diversity of the devolved arrangements across the country. The more pressing challenges that face the devolved institutions in Northern Ireland relate to the £2 million per week penalties being incurred because Sinn Fein has reneged on the Stormont Castle agreement—an agreement, incidentally, that the party of the hon. Member for South Down has adhered to as well. Yet she tells us off for not supporting the Act, when she and her party have not acted on what they signed up to in the Stormont Castle agreement, depriving us of £2 million that could be used to employ more nurses and teachers.

The DUP is fully committed to creating a society in which people are safe, secure and protected. We are also working to tilt the balance away from the criminals and towards the innocent victims of crime. That is where our focus will be. For too long people have felt as though the forces of law and order are not fully on their side. We are working to change that. Whether the hindrance lies at a local, national or European level, we want it tackled. It is for that reason that the DUP and I firmly believe that the Human Rights Act cannot continue as it is.

15:25

[Sir Edward Garnier (Harborough) (Con)]

I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on obtaining the debate. Were he, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I sitting as a three-man court of appeal, I should simply say, “I agree with my brothers and have nothing further to add,” but since we are not and I have a few minutes to say something, I think I shall.

First, the political reality is that there is no majority in this House, and there certainly is not in the other place, for a repeal of the Human Rights Act—still less for our removal from the European convention. The second point to think about was touched on by my hon. Friend the Member for Cheltenham (Alex Chalk), although perhaps the speed with which he spoke slightly confused things: there is a world of difference between attempting to repeal or amend an Act of Parliament and resiling or removing ourselves from an international treaty. That comes back to the point made by the right hon. Member for Orkney and Shetland about the Good Friday agreement and other devolved questions. In so far as those are matters of treaty, there is not much that we can sensibly do in the House of Commons, apart from talking about it, to amend them or remove ourselves from them; but it strikes me that that feeds into the political reality. We are not going to unpick the devolution settlement at the behest of a tabloid newspaper that finds the word “Europe” disobliging.

There are several things that we need to think about, which I have discussed before, in relation to the problem. The question is a mixture of politics and law. I truly confess that there are plenty of lawyers who do not like politicians because they find them thoughtless, intemperate and political; and plenty of politicians who have not condescended yet to read the Human Rights Act, still less the convention. There is therefore a gap between people’s state of knowledge and their prejudices. Politicians need to arbitrate that difference.

Perhaps the most important question that we need to ask is what the point of the exercise is. Is it necessary, and what will it achieve? Well, it will achieve an awful lot of political angst, a split in the Conservative party and a disagreement across the Chamber to little effect. At some point we will have to work out whether it is all worth the candle. Yes, of course there are things that one can do to tinker with an Act of Parliament. One should pay more attention to section 2; one should understand the point made by my hon. Friend the Member for Banbury (Victoria Prentis) a moment ago about the human rights regime and our armed services. There are all sorts of sensible things that we could talk about, but we do not need to waste the next four and a half years of this Parliament banging our heads against an impenetrable brick wall to no effect.

Thank goodness we have my hon. Friend the Parliamentary Secretary here to handle the flaming cauldron, and carry it carefully, like—mixing my metaphors—a delicate Ming vase all the way to the next election, where he can quietly lock it in a cupboard and forget about it.

15:28

[Angela Crawley (Lanark and Hamilton East) (SNP)]

I thank the right hon. Member for Orkney and Shetland (Mr Carmichael) for bringing this debate to the Chamber. It is important to recognise the significant journey that human rights law has made in recent years, but such developments speak volumes about the necessity to ensure that all protections are given to individuals in society.

It speaks volumes about the Government’s priorities that they would rather unravel the substantial and important progress that has been made than protect and enhance people’s rights. They would rather ignore the voices echoing from the Opposition Benches on austerity, tackling poverty and building a fairer society, and instead focus on a narrowly defined British Bill of Rights. Meanwhile, those of us elected to champion the voices of our constituents are faced with ensuring that individuals can face a challenging job market that rewards big business while the poorest in our society struggle to put food on their table to feed their children. Is this really the priority of a Government faced with real challenges here in the UK?

It is true that one of the most important roles of any Government is to ensure the safety of their citizens, but where do we draw the line between security and the infringement of people’s liberty and rights? Although I concede A. V. Dicey’s principle of sovereignty that suggests that Parliament may

“make or unmake any law”,

perhaps we could imagine for a second that even Dicey might call into question the balance of the rights of citizens and that it ought not to be undermined by the belief that a currently undefined British Bill of Rights could provide any more guarantees or protections of the rights of citizens than the Human Rights Act.

We ought to focus on enhancing and improving the existing Act to ensure that the rights and responsibilities of citizens are not neglected but respected. A British Bill of Rights raises serious concerns and costs, which the right hon. Member for Orkney and Shetland has already raised. Such a Bill would inevitably weaken the existing human rights safeguards and protections, most likely affecting the most vulnerable citizens in our society.

It is easy to take for granted the European convention on human rights and the crucial protections that is has guaranteed thus far, but we must remember the important role played by the 1998 Act and the rights that it has guaranteed. Victims of domestic abuse have received better protection. Victims of rape have been given proper police investigations. Disabled individuals who have been affected by the welfare reforms imposed by the Government have the right to challenge legislation that they deem unfit and unfair—most notably the bedroom tax. Social housing tenants have the opportunity to challenge decisions that affect their right to safe and secure housing. Members of the LGBTI community have overcome discrimination. Families of military personnel killed on active service have been given recourse for the supply of the out-of-date equipment that has cost lives and affected the loved ones left behind.

For all the reasons I have outlined, we must protect the European convention on human rights. We must strive and continue to be a tolerant, compassionate and equal nation, with a progressive and outward vision in a global context.

15:32

[Mr Christopher Chope (Christchurch) (Con)]

I look forward to having a British Bill of Rights on the statute book. That was in our manifesto, and it would only increase cynicism in politics if we abandoned such a clear manifesto commitment.

When the Bill is introduced, I hope it will include the word “responsibilities”. One thing that really annoys constituents is that the principle of equity, which runs right through English law like a golden thread, is not applied in very many human rights cases. People want a sense of fairness. They particularly want to ensure that those who come before the courts do so with clean hands, and that if they do not, they cannot expect to be treated in the same way as those who do.

The issue is not compliance with the strict words of the European convention on human rights—they are not an issue, because we all agree with them. The only reason why one country in Europe is currently not a member of the Council of Europe is that Belarus refuses to disapply the death penalty. That is a fundamental breach of the legislation.

More difficult is the judicial interpretation of the original words of the convention, which now extend into what is effectively judge-made law, over which Parliament and the people have no control. We are all familiar with the issue of voting rights for prisoners and how it was specifically excluded in the discussions leading up to the signing of the protocol. The sentence of life imprisonment was clearly introduced as a substitute for the death penalty, but even that is now being undermined by the European Court of Human Rights saying that there should be the opportunity for a review, rather than life meaning life.

[Sir Edward Garnier]

Will my hon. Friend give way?

[Mr Chope]

I am not going to take any interventions, because even if I get an extra minute it will mean others will lose out.

Article 31.1 of the Vienna convention on the law of treaties makes it clear that

“a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose”.

If the European Court of Human Rights was doing that, there would not be a problem.

The UK Government are in close contact with the thinking of the European Court of Justice. In its opinion earlier this year, the European Court of Justice said that the EU could not join the European convention on human rights because of concerns that the interpretation of human rights law in Europe would then rest with the European convention on human rights rather than the European Court of Justice. We are in exactly the same position in this country: we want our own Supreme Court to interpret the treaty, rather than to leave it to an external body.

The Government are on the right course and should not be deterred by the siren words we have heard from so many people this afternoon.

[Several hon. Members]

rose—

[Mr Clive Betts (in the Chair)]

Order. We have time for only two more speeches before we go to the Front-Bench speakers. I am sorry that I cannot call everyone who wants to speak, but I will call everyone who asked in advance. That should be a helpful tip for Members in future.

15:36

[John Pugh (Southport) (LD)]

I congratulate my right hon. Friend the Member for Orkney and Shetland (Mr Carmichael) on initiating this debate and introducing it so thoughtfully.

I hesitate to give any opinion in such an eminent gathering as this, but it seems to me that this debate is not between those who support human rights and those who do not—the lovers of free speech and defenders of liberty and the right to trial on one side and the torturers, summary executioners and deniers of basic freedoms on the other. It is not that sort of debate; it is simply about the place in national law of human rights and the related conventions. It is about the place of basic standards of morality and legality in public life, lawmaking and social action, and the fundamental principles by which those things can be judged.

Not everyone believes in human rights functioning in a fundamentalist way. I do not know how many Members read Matthew Parris’s article in The Times, but he described human rights as desiderata. John Stuart Mill and the utilitarians, who are practically saints in liberal circles, described human rights as “nonsense upon stilts”. Reading the Daily Mail, it is sometimes quite easy to see why people say such things. The catalogue of human rights varies and grows. Sometimes the frivolous demands of vexatious people are expressed as though they were human rights. Even when there is agreement on the wording, there is often difference over how the words are to be interpreted: more or less every nation on the planet has signed up to the United Nations declaration of human rights, but they interpret them in their own idiosyncratic ways.

Crucially, it is very hard to sort out cases where laws and actions to protect one basic human right conflict with or impact detrimentally on another. It is hard to weigh and prioritise such matters. All the important difficult issues have been of that nature—for example, weighing up the right to family life against national security, or the right to public participation through voting against the justifiable expectation that prisoners will be punished and forfeit something.

It appears to me that the European convention on human rights is grounded in a time when things were a lot clearer than they are now. The previous theory inherited something from the natural law theory of the middle ages and then disposed of it, but when we got to the end of the second world war, there was a clear expectation that minimal standards had to be set, against which to benchmark any nation’s behaviour, even if it was validated by the nation’s own law. At that time, the rule of law on the continent had effectively been the rule of terror. I cannot see anything in the convention that lays down a social blueprint for any nation; it simply defines the conditions for a just society. Some of the rules are uncontentious—almost formal—and some are more arguable and substantive, but no one has questioned today the idea of such benchmarking. No one in the entire debate has suggested that it does not play an important role in encouraging a civilised and tolerant society.

Having recognised that, on which there seems to be consensus, the next questions are how it should be policed, who does it and who enforces it. We would all agree that it could not be nations themselves as they would in effect be marking their own homework. As some have suggested, it could be a national judiciary that carries out that role, with or without further appeal, but that assumes a universal cultural independence from Government and that judiciaries are the same across Europe, both of which cannot be assumed. It would also defeat the purpose of international validation of what an individual country is doing, and it fails to apply effective pressure on rogue states and their behaviour.

15:39

[Neil Carmichael (Stroud) (Con)]

It is a pleasure to serve under your chairmanship, Mr Betts, and to salute the right hon. Member for Orkney and Shetland (Mr Carmichael), the former Secretary of State for Scotland, for initiating and leading this debate. He dealt with the devolution issue extraordinarily well and none of us disagreed with his fundamental point that to unravel devolution agreements by challenging the Human Rights Act would not be wise.

I ask the Minister for his interpretation of “taking into account”. We need clarification of that, following the exchanges of this debate. When I tell someone that I am taking their views into account, I am usually saying, “I heard, but I’m not going to do it.” We need to recognise that that is really what the phrase means. That is why it is probably unwise of the Government to be quite so controversial in their proposals.

The other issue to consider is what a Bill of Rights looks like. Without giving a history lesson, we already have a Bill of Rights. It was passed in 1689, but it did not actually do the job that the Government will have in mind for any future such Bill. The danger is that once rights start to be defined they can be restricted. Calibrating or describing rights is not as easy as it first appears. The risk is that a Bill of Rights could be too tight or too loose. It is important that we see what the Bill of Rights might look like.

[Fiona Mactaggart]

Does the hon. Gentleman agree that the problem with the rights debate in Britain has been that, unlike countries such as South Africa, we have failed to debate what to do when rights clash? For example, the right to private and family life and the right to protest clash, and we in Britain have not debated how to deal with those clashes.

[Neil Carmichael]

My way at looking at things in terms of English law is that I prefer to assume that I have a right unless Parliament has told me that I do not. That is how we should be operating.

Doing something different from what we have done in the past also has international implications. As we have already heard, the architect of the European Court of Human Rights was a former Conservative Home Secretary who was not a libertarian in the true sense of the word. Leaving the Court would be to depart from that tradition and would risk our international reputation while making it harder still for other nations to think in terms of their own aspirations for rights, and might not discourage others in their intention not to give rights. The issue is not only legal, but one of foreign policy.

In short, we must consider the matter carefully. I would prefer to have legislation that improves what we already have, rather than undermining and changing the structure that we have become used to.

[Mr Clive Betts (in the Chair)]

Order. Joanna Cherry, the SNP spokesperson, will now have four minutes before I call the shadow Minister and then the Minister to speak for 10 minutes each.

15:45

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Betts. I thank the right hon. Member for Orkney and Shetland (Mr Carmichael) for securing this debate on an important topic. He rightly said that human rights are part of the UK’s constitutional architecture, he touched on their significance for the devolved settlement and he asked us what we are seeking to achieve through appeal of the Human Rights Act and what the Government’s future intentions are regarding the European convention on human rights.

The right hon. and learned Member for Beaconsfield (Mr Grieve) made a valid point when he said that repeal here is an extremely difficult project that could deliver limited benefits. He also asked what we are trying to achieve—a question that has been echoed by many speakers. The hon. Member for Islington North (Jeremy Corbyn) stated that our repealing the Human Rights Act would send out the wrong message.

I am conscious of the time limit, so I will quickly move on to my points, which, as the SNP Front-Bench spokesperson, particularly relate to the devolved settlement and how it affects Scotland. The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved.

Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states:

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with”

the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament.

I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country. Examples of those rights were provided by my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley).

15:49

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Betts. I congratulate all who have spoken so eloquently today and the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing the debate and bringing the matter before the House before the summer recess. I am going to take an unusual course by endeavouring not to take my full 10 minutes. I will do that because the official Opposition’s position is clear, so I would simply be restating it, whereas the Government’s position is unclear and I am sure that the Minister will want the maximum time to be able to elucidate it.

When I was responding to the debate on the Gracious Speech, I made it clear that we will resist any attempt to undermine or repeal the Human Rights Act, or to detach this country from the European convention. More importantly, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) made a detailed speech on the subject on 16 June, in which she said:

“The Government has signalled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queen’s Speech that they would be consulting on a ‘British Bill of Rights’. We think that even the consultation is the start of a slippery slope… I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and… Their policy is intellectually incoherent and, worse, it’s wrong in principle.”

It would be at best otiose and at worst lèse majesté for me to amplify or qualify what the leader of the party has said.

The real question for the debate is: what are the Government’s intentions and what is the process to get us there? That is particularly important given the contradictory signals coming from the Government almost daily. Days before the Gracious Speech, the repeal of the Human Rights Act was being presaged as one of the centrepieces of the Queen’s Speech, only to be dropped entirely from the first Session’s legislation. We are now promised a consultation—perhaps the Minister will enlighten us as to what form it will take or when it will take place. Will the Minister also publish some of the drafts—I think we are up to about 10 or 14—of the Bill that was being prepared under the coalition Government in private by Martin Howe QC and others on behalf of the Conservative party? Presumably that document will now become a Government one.

The key issue has to be the relationship between the Human Rights Act and the European convention. I will correct, or at least qualify, one thing that the right hon. Member for Orkney and Shetland said. He said he hoped that Government policy was not the same as it was last October. I wondered about that, so on 4 June I asked that question specifically of the Leader of the House of Commons—he was the person who produced the original documentation. He responded:

“The Conservative party’s policy on human rights has not changed since last October.”—[Official Report, 4 June 2015; Vol. 596, c. 784.]

For those who have not read the document recently, it states something that will no doubt please the hon. Member for Christchurch (Mr Chope) about the Council of Europe accepting UK demands:

“In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect.”

Is that now Government policy? It is not inconsistent, for example, with what the Home Secretary said two years ago, although it appeared to be inconsistent with what the Prime Minister was saying. According to press reports, the Prime Minister was somewhat “at odds” with the Home Secretary and the then Justice Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling). Now, however, there appears to be some agreement at the top of the Conservative party and the Government that we will at least countenance withdrawal from the European convention, but it is confusing.

The Minister here today gave this response in Justice Questions last week:

“We will legislate for a Bill of Rights to protect our fundamental rights… Our plans do not involve us leaving the convention; that is not our objective”—

only for the sentence to continue—

“but our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table for the future.”—[Official Report, 23 June 2015; Vol. 597, c. 748.]

What is the situation? Within an hour of that reply, the Lord Chancellor and Secretary of State for Justice was on the “World at One” on the BBC saying that it was perfectly possible that we would be withdrawing from the European convention.

I endeavoured to find some record of what the Justice Secretary might have said before coming into his post. This is what I found, from when the convention was incorporated in 2000. I do not know if his views have changed, but interestingly it was written in the context of the devolved settlement in Northern Ireland:

“The Human Rights culture is already spreading in our society, uprooting conventions on which our stability has rested… It supplants common sense and common law, and erodes individual dignity by encouraging citizens to see themselves as supplicants and victims to be pensioned by the state.”

That does not sound like a strong endorsement of human rights, but perhaps the Minister will be able to elucidate in his response.

There are very difficult problems and hurdles. With all due respect to the Chair of the Justice Select Committee, the matters we are discussing are not “theological” ones. Our relationship with supranational law will become an issue if we produce some British Bill of Rights that is the bespoke device of the Justice Secretary and the Minister. Unless they are intending to withdraw from all international treaties and conventions and indeed from the European Court of Justice, whose judgments are far more prescriptive and binding than those of the Strasbourg Court, inevitably there will be two systems running in parallel, a British one and an international one, to both of which our courts will have to pay attention.

The Minister must address the issues raised by the Front-Bench spokesperson for the Scottish National party, the hon. and learned Member for Edinburgh South West (Joanna Cherry), about the devolved Administrations. He must also address some practical problems, such as how he will get his own colleagues and the House of Lords on board and how—perhaps the central point to have come out of today’s debate—he will explain why any of it is necessary in the first place.

The right hon. and learned Member for Rushcliffe (Mr Clarke) has said that most of the problems that have arisen with the European Court of Human Rights over a period of time are in the process of being, or have been, resolved.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

If it is so impossible to have a British Bill of Rights alongside adherence to the convention, why is it the case that Germany, France and almost every other European country have their own constitutions with enshrined charters of rights that sit quite comfortably alongside adherence to the convention?

[Andy Slaughter]

That question is for the Minister to answer, because we have seen literally nothing from the Government to explain any compatibility. As for the question about “taking into account” raised by the hon. Member for Cheltenham (Alex Chalk) and how we square the circle between the judgments of the Strasbourg Court, our own higher courts and the sovereignty of Parliament—none of that is in issue any more. The question really, if I may put it back to the hon. and learned Member for Torridge and West Devon (Mr Cox), is this: what is wrong with the existing system that allows the law to evolve and the judiciary in this country to influence judgments of the European Court, often in an entirely beneficial way because of the quality of such judgments? Why are we seeking to retreat from, rather than to advance the cause of international law? Why are we seeking not to have the benefit of international law? It seems to be a little England, or little UK approach, and when the hon. Gentleman reflects on it, he might find himself on the side of those who believe that little needs to change, instead of throwing out an honourable tradition of human rights drawn up over many centuries.

15:58

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is an honour and a pleasure to speak under your chairmanship, Mr Betts. I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing the debate on the future of the Human Rights Act.

I listened with great interest to all the contributions. I shall touch on a few of them, such as that of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who gave a powerful speech about some of the risks involved in this enterprise. I detected that he is perhaps not quite as sympathetic to the concept of a Bill of Rights as he was when he was shadow Justice Secretary, but I was heartened to hear that he was offering creative solutions along the way.

[Mr Grieve]

The Minister is quite right. In 2009 I worked on a paper with him as my chief of staff about the possibility of a Bill of Rights. As was rightly said, such a Bill of Rights is perfectly possible, but it will not solve the problems or issues that have been the driving force behind the Government’s current project unless we intend to decouple ourselves from the European convention, which, mercifully, I understand not to be our policy. There is the conundrum that my hon. Friend will have to grapple with.

[Mr Raab]

I thought I had detected a slight revival of my right hon. and learned Friend’s former enthusiasm, but perhaps I was too optimistic.

I pay tribute to the hon. Member for Islington North (Jeremy Corbyn) for his contribution. He always speaks powerfully on these issues—I have listened to him speaking on human rights since I joined this House. He took us back to Magna Carta and its modern-day relevance.

[Jeremy Corbyn]

I can go back further if you want.

[Mr Raab]

I am sure you could.

I also welcome the contribution made by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). I congratulate him on his election to that post and look forward to being grilled in due course. He counselled us not to treat the Human Rights Act as a holy grail that cannot be questioned. That was a useful injection of common sense into the debate.

I also pay tribute to the hon. Member for Strangford (Jim Shannon), who highlighted some of the cases under the HRA that have been of concern to his party. He raised in particular the application of article 8 with regard to deportation. My right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) made some powerful points on section 2 of the Act and on extraterritorial jurisdiction. The hon. Member for Lanark and Hamilton East (Angela Crawley) raised the difficult issue of the balance between liberty and security. My hon. Friend the Member for Christchurch (Mr Chope) discussed judicial legislation from Strasbourg—he has huge experience of that as a result of his representation on the Council of Europe.

There were other excellent speeches to which I cannot pay individual tribute, but I should also acknowledge the speech made by the shadow Minister, who reiterated his party’s position and lamented the lack of detail in the Government’s current proposals. I say to him gently that one issue with the Human Rights Act, arguably, is that it was rushed through, as it was introduced within six months. As a result of that haste, some problems have now emerged that we were warned of at the Act’s inception. The Government are not going to rush in the way the then Labour Government rushed through the Human Rights Act. We will take a little time, because we want to get it done right rather than quickly.

[Andy Slaughter]

Most people do not think it was rushed but would say that it was 20 or 30 years too late. The effect of the Act is to incorporate the convention, which it does, to use the phrase of the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), in a very conservative way. What is the problem with that?

[Mr Raab]

The shadow Minister makes an interesting point. If, as a new Government, we had introduced a Bill within six months, it would have been argued that that was too hasty.

On the problems that have arisen as a result, a former shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), who is no longer in his place, took to The Daily Telegraph just last year to point out some of the problems with section 2 of the Act:

“Too often, rather than ‘taking into account’ Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.”

If the Labour party has U-turned on that rather thoughtful critique of its own legislation and now, as my hon. Friend the Member for Bromley and Chislehurst said, believes the Act to be a holy grail that cannot be touched, called into question or criticised at all, there are some questions for Labour to answer. I know hon. Members in the shadow Minister’s party would not all agree on that matter.

I shall take this opportunity to set out the Government’s position. I should say that I have found the debate very valuable at this still formative stage of the Government’s process towards enacting a Bill of Rights. To answer some of the questions put, we will be consulting formally this Session, including with the devolved Administrations—I am aware that there are some issues there—and I hope hon. Members will understand if I do not prejudge that consultation or its terms in my remarks today.

I remind hon. Members that the United Kingdom has a strong tradition of respect for human rights that long predates the Human Rights Act 1998. The Government are proud of that tradition and will be true to it in delivering our reforms. As I explained at Justice questions, our plans do not involve us leaving the convention. That is not our objective. We want to restore some common-sense balance to our human rights, which are out of kilter, so nothing has been taken off the table.

[Jeremy Corbyn]

If the proposal is not to withdraw from the convention, would it still be applicable in British law and in decision making by judges in British courts?

[Mr Raab]

The hon. Gentleman is alluding to the idea of having a middle course between throwing the baby out with the bathwater, as some have described it—tearing up human rights, getting rid of the convention and not replacing it—and trying to reform the current model by looking at the way the convention has been applied and interpreted. There are not huge numbers of objections to the black letter law of the convention’s text, but the way it has been applied and extended is a matter of concern. All that will be the subject of debate and consultation.

[Mr Alistair Carmichael]

I say, in passing, that I hope we never get to the stage where the implementation of law by the courts is entirely to the satisfaction of the Government. Surely the problem is that if we get to a point where we have a British Bill of Rights but remain a contracting party to the European convention, which has a higher standard of human rights protection, anyone dissatisfied with their rights as applied in the UK domestic courts under the British Bill could still have recourse to the wider protection of the European Court in Strasbourg.

[Mr Raab]

The right hon. Gentleman is tempting me to prejudge the substantive content of the Bill and the consultation. He has raised some interesting points, which we will no doubt thrash out in due course; I look forward to that.

I will refer to some of the principal concerns about the Human Rights Act, as that is the subject of the debate. Given the time restraints I will refer to just a few examples from what is by no means an exhaustive list. The first is the exponential expansion of rights that the design of the Human Rights Act, whether tacitly or otherwise, has promoted. It has encouraged a rights inflation that, as has already been acknowledged, has tended to undermine the so-called liberal model of human rights, shifting away from what people like Isaiah Berlin would refer to as negative liberty, or the John Stuart Mill model of shielding the citizen, towards imposing obligations on the state rather than constraining it. If that were in any doubt, the textbooks—I am sure hon. Members across the House are familiar with them—are littered with examples of the celebration of that, whether through the living instrument doctrine in Strasbourg or our own case law.

The practical effect of rights inflation has been to dilute personal responsibility. The growth of rights—the expansion of the realm of rights—increases the power of the individual, however nefarious or otherwise, to trump the good of the rest of society. The more that extends beyond the bedrock of core liberties, the more corrosive the effects. I will give one brief illustration, to highlight the fact that personal responsibility is being eroded or diluted: the claim that the Government’s welfare to work policy amounted to forced labour under the European convention.

I should say straight away that that claim failed, but the fact that it made its way through the UK court system to the Supreme Court is telling. It is striking that lawyers thought they could stretch an article of the convention that was designed, after the experience of concentration camps during world war two, to address grave issues of slavery and forced labour so as to attack the principle of conditionality in welfare reform. It is just one illustration of how the HRA has proved rather malleable material for the ingenious twisting of the basic conception of human rights, rather than simply bringing rights home, which was the Act’s explicit contention.

The second concern I will raise about the HRA is its effect on the rule of law, and in particular the effect that some of the haphazard case law has had on legal certainty. I refer hon. Members to the tragic case of Naomi Bryant, and the review by HM Inspectorate of Probation of the case, which found that the licence conditions placed on Anthony Rice on his release were too lax and noted that lawyers had whittled away the conditions by deploying arguments to do with the Human Rights Act. I will not go into that further—I have the quotes with me but will not read them out—but if anyone wants to look into that case further, they should look at that report.

The third issue I will raise is the way that the Human Rights Act has exposed us unnecessarily to too much judicial legislation from Strasbourg—for example, in the case of prisoner voting. In truth, as we should not make this into some strictly European bogey, there have been examples of domestic judicial legislation as well, about article 8 in particular—we should deal with our home-grown problems, too. That is easy to do without bringing into question our membership of the European convention.

Finally, I hope the right hon. Member for Orkney and Shetland has had the opportunity to read the excellent article by Baroness Faulkner, Liberal Democrat spokesperson on foreign affairs, in May’s edition of Prospect. In case he has not, and for the benefit of this wider audience, I will quote a few choice words:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken... A British Bill of Rights is a good idea.”

I do not agree with the whole article but it is well worth a read.

I congratulate the right hon. Gentleman on securing this debate and welcome his contribution. I hope he will not mind if I encourage him to circulate that article among the other members of his party.

Question put and agreed to.

Resolved,

That this House has considered the future of the Human Rights Act 1998.

MV Seaman Guard Ohio

Tuesday 30th June 2015 Westminster Hall

[Sir Roger Gale in the Chair]

16:10

[Ian Lavery (Wansbeck) (Lab)]

I beg to move,

That this House has considered the detention of MV Seaman Guard Ohio crew in India.

At the beginning of my contribution, I want to place on record my sincere thanks to Lisa Dunn, the sister of Nick Dunn. She has worked assiduously on behalf of the six men who are still being detained in India, despite having the charges against them quashed more than a year ago. The six men’s families have been absolutely outstanding under the most extreme and difficult circumstances. They deserve the utmost praise for their actions, which have been relentless.

Having said that, this is a very serious case involving, in my view, a serious breach of the international human rights of six British citizens—former military men who served this country on the front line in Iraq and Afghanistan. Sadly and understandably, they feel utterly betrayed, abandoned and ignored by the British Government—by the country that they so bravely fought for. At their greatest time of need, they feel betrayed. We should put ourselves, just for a minute, in their shoes. They have had so many false dawns and promises and so much false hope and misinformation. After all this time, they are still awaiting firm action and some decision by the Indian authorities.

I want to mention the staff at the Foreign and Commonwealth Office, who have kept and still keep in contact with the families. They have done a marvellous job, but they seem to be totally constrained by protocols, democracy and convention, which has been a great source of frustration, as the families believe that little if any real progress has been made.

[Sir Greg Knight (East Yorkshire) (Con)]

Is it not worth placing on record the fact that we are dealing with a sovereign, democratic, independent country, and that no British politician can tell the Indian authorities what to do?

[Ian Lavery]

There is a lot of merit in what the right hon. Gentleman says, and I will come to that question. At the same time, it is very difficult to tell the six British citizens that there is very little we can do other than just talk across the political divide and speak to the Indian authorities without actually making any progress. They feel betrayed, and that is the problem. It is up to us as British politicians to do what we can to try and help them.

[Christian Matheson (City of Chester) (Lab)]

My constituent—indeed, my friend—Ray Tindall, who, as my hon. Friend said, served loyally in some very dangerous war zones on behalf of this country, feels bitterly betrayed. Is it not the case that, even within India, there is no doubt about the men’s innocence? I am sure that hon. Members here have never doubted that either, so perhaps we might see a little more effort on behalf of the British Government to impress that on the Indian Government.

[Ian Lavery]

There is no doubt that these people are innocent. All the charges against them were quashed in July 2014, which is nearly a year ago. In my view, they are not even in the judicial procedure, because the charges against them were quashed. I am sure that the Minister will address that point of contention.

[Sir Greg Knight]

The hon. Gentleman is being generous in giving way again, which I appreciate. If I am wrong on this point, I am sure that the Minister will correct me in his winding-up speech, but I understand that the Indian Prime Minister, Mr Modi, may well visit Britain later this year. If he does and if this matter is not resolved by then, does the hon. Gentleman agree that that would be an excellent opportunity for our Prime Minister to raise the case with the Indian Prime Minister?

[Ian Lavery]

I sincerely hope that these gentlemen are on British soil before the Indian Prime Minister gets here. I believe that the British Prime Minister has spoken to the Indian Prime Minister—it has been at that level before—so the issue has been raised between the two parties. However, the families and everyone else will hope sincerely that these people are back way before then. That is how the situation stands.

The families feel as though there has been an extreme lack of any progress. On many occasions, news has filtered through the system from other nationalities. News about different court dates and important items discussed with, for example, the Estonians and Ukrainians has filtered through to our six UK citizens before any information has come from the Foreign and Commonwealth Office.

I mentioned the Prime Minister to the right hon. Member for East Yorkshire (Sir Greg Knight), and I have spoken to him personally. I have raised this matter on the Floor of the House with him, with the former Foreign Secretary and, on numerous occasions, with the Minister. The question really is: has anybody listened? I do not want to be too critical, but the men are still there after nearly two years. Has anybody listened? The men and their families are extremely angry. The men are still in India; they are not allowed to leave. Their passports are still withdrawn by the authorities, despite the charges of illegal acts being quashed. It is a clear violation of their international human rights. These are innocent people in a Commonwealth country.

I have spoken to the Minister, who I thank for the meetings that he has kindly arranged on this issue. He has stated numerous times that the Foreign and Commonwealth Office cannot interfere in other countries’ judicial/legal systems, but these men have had the charges against them dropped. They are basically destitute. They are stuck in another country—a Commonwealth country—and we should be able to assist. They are innocent.

The series of rather unfortunate events began a long time ago, on 12 October 2013, when the MV Seaman Guard Ohio, a Sierra Leone-flagged vessel owned by AdvanFort, was intercepted by the Indian coastguard off the Tuticorin coast. The vessel had been involved in supporting anti-piracy operations by supplying armed escort services to commercial vessels travelling through a piracy hotspot in the Indian ocean. The crew were arrested and detained by the Indian coastguard near the port on suspicion of possessing arms without the appropriate licences.

The crew of 35 aboard the ship were of different nationalities, including Indian, British, Ukrainian and Estonian nationals. The British crew members were Mr Paul Towers, Mr William Irving, Mr Nicholas Simpson, Mr Raymond Tindall, Mr John Armstrong and my constituent Mr Nick Dunn. All crew members were remanded in custody following questioning on 18 October 2013. Two crew members—the captain and an engineer—were not arrested initially but were later. Q branch then submitted charges against 45 accused persons, including the company, its director, 35 crew members and eight locals, for offences under the Arms Act 1959, the Essential Commodities Act 1955, the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order 1998 and the Indian penal code of 1860. On 20 October 2013, 22 foreign nationals among the 35 arrested crew were moved from the prison they were in to Chennai Puzhal Central prison.

Not until 18 December 2013 were bail applications made on behalf of all the crew. In the bail plea, the crew alleged that the vessel was coming into the port for supplies. The vessel was stormed by as many as 25 officials from eight different agencies as it tried to enter the port. Counsel for the crew contended that, based on the doctrine of innocent passage as envisaged in section 3 of the UN convention on the law of the sea 1982, no charge could be levelled against the crew. However, the High Court in Madras refused bail, stating that the investigations were still at an initial stage and a release could jeopardise the investigation.

On Boxing day 2013, conditional bail was granted after the crew argued that Q branch had failed to file the charge sheet within 60 days of their arrest. However, on 7 January 2014, the Principal Sessions Court cancelled the conditional bail granted by the lower court. In February 2014, a new bail application was filed. It detailed the brutal treatment of the prisoners and their deteriorating health due to malnutrition, unsanitary conditions, mental harassment and emotional trauma. Conditional bail was granted on 26 March 2014, but the men were not released until 6 April, some 11 days later. However, the British vice-captain, Paul Towers, remained in jail. On 10 July 2014, the charges against the crew were quashed in the Indian High Court in Madras.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I am extremely grateful to the hon. Gentleman for being generous with his time and I congratulate him on the tireless work that he has done to keep this matter in the public eye. This debate allows me to highlight the case of my own constituent, Mr William Irving from Oban, who is one of the six people in India. Is the hon. Gentleman aware that today Mr Irving had the opportunity to meet his son for the first time? His partner, Yvonne, had to take the baby to India to allow Mr Irving to meet his child for the first time. I spoke to Mr Irving’s parents this morning, and they are very grateful to the hon. Gentleman for raising the matter again in this way. They feel, as Mr Irving does, both betrayed and abandoned. All they want is this ordeal to stop. Does the hon. Gentleman agree me that until it does, the Government have a duty of care towards the six detained people and that they must look after them in the way that other Governments seem to be looking after their detained seamen? Our Government seem not to be doing that.

[Ian Lavery]

I thank the hon. Gentleman for that intervention. I am delighted that Mr Irving has met his son. It is just such a shame that, two years after this began, his partner and son have had to travel to India. The sister of my constituent, Nick Dunn, travelled there almost a year ago to visit him and saw the horrible, squalid conditions in which he was living in Puzhal prison. Of course we need to be acting, as I have been saying during my contribution.

On 25 August 2014, the state of Tamil Nadu filed an application to appeal the decision to which I have referred. We are almost a year on from that, yet the men remain in India. Despite numerous court hearings, including one that saw all charges against them dropped back in July, their passports have not been returned and they are unable to leave India. Each time the six British nationals and former servicemen have been told that a final judgment on their case is imminent, the deadline has been put back. It had been hoped that a judgment would be forthcoming before the courts in India adjourned for their annual summer recess on 15 May. However, that did not happen and the men have now been told that it will be July before they hear any news.

The treatment that these people have had since their imprisonment has been nothing short of appalling. AdvanFort, the company that owned the vessel, abandoned the men almost immediately. It was more interested in the return of the ship than the safety and welfare of the crew. Despite emails from the Foreign and Commonwealth Office and communications from the offices of MPs—including, I am sure, people in the Chamber today—it did not reply or respond to anyone at all. Will the Minister say what powers the Government have in relation to companies, such as AdvanFort, that abandon British nationals to defend themselves without even legal representation?

I would like the Minister also to consider a few questions that have been relayed to me from the families and the individuals themselves. Why have the British Government sat by while they have been illegally detained since September 2014, even though they have been given lawyers’ letters stating that fact? The individuals claim that legal advice has been passed to the Foreign and Commonwealth Office explaining how they are innocent, yet there has been little if any progress. Legal evidence provided to the Foreign and Commonwealth Office in Chennai and London from legal experts clearly states that the actions of the Indian authorities are a breach of the crew’s human rights. Why has the Foreign and Commonwealth Office not sought to investigate that? Why was that information not taken seriously by the Foreign and Commonwealth Office and the UK Government? Have the UK Government not just updated their policy on the promotion of international human rights aimed at protecting UK citizens abroad, including in relation to the unlawful detention of our citizens? If that is the case, why is the situation different for our friends, the UK citizens in India?

These men are not allowed to work. They are not allowed to earn a living; they are not allowed to earn anything. They are being held against their wishes and are relying on charity and assistance from their families in order to exist. They have to pay for their accommodation, food and drink and medical treatment. And what about the families back home, who have lost their worldly possessions? They have lost cars, in some cases homes, and much, much more as a result of this illegal detention. Quite simply, these men’s lives and family lives have been utterly destroyed. Will the Minister say what the Government can do to assist in that respect?

The Minster has made reference to the issue being raised continually. Is he able to inform the individuals of the content of the conversations that he and the Prime Minister have had with the Indian authorities? The crew members wonder why the detail of those conversations has till now been kept confidential. Can the Minister clarify that the men were not officially required to stay in India following the quashing of their charges? Why are they currently detained when they should be free men? Why have new passports not been released? Will the Minister confirm his next steps to bring an end to the sheer misery being suffered by the men and their families? I am talking about the mental, physical and financial torture that they continue to suffer through being detained. Please give them, Minister, a glimmer of hope. Remember that these are men who jeopardised their own lives—they put their own lives in danger—for their country. They need the Government to act positively to return them to their loved ones without delay. Remember that these are innocent men.

16:28

[The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)]

I congratulate the hon. Member for Wansbeck (Ian Lavery) on securing the debate and I commend the strong support he has given to his constituent, Mr Nick Dunn, and the rest of the British crew of the Seaman Guard Ohio. Three of the men are now represented by three new hon. Members, who I think are all in their places in this Chamber.

The hon. Gentleman has rightly raised with the Foreign and Commonwealth Office a number of issues relating to the case. As he concedes, I, too, have taken a close interest in the matter. I have met the current and former MPs involved and the family members several times, most recently in March, and I will meet right hon. and hon. Members again once we have had the verdict of the Supreme Court of India on the case.

I must stress at the outset that this is a legal, not a political, case. As my right hon. Friend the Member for East Yorkshire (Sir Greg Knight), who has been assiduous in representing his constituent, has pointed out, the British Government cannot interfere in another country’s legal process any more than we would allow another country to interfere in ours. Incidentally, I believe that that is something that the former Opposition spokesman, the right hon. Member for Warley (Mr Spellar) has struggled to understand.

[Ian Lavery]

Will the Minister clarify a point? The charges against the men have been totally quashed, but their passports have been withheld by the Government. Are they being withheld illegally? If the charges have been quashed, why are the men not innocent?

[Mr Swire]

If the hon. Gentleman will allow me to develop my speech, I will remind people that the matter has been appealed, and the case starts tomorrow in the Supreme Court. That is the Indian judicial process, within the boundaries and confines of which we have to operate.

Consular staff are not investigative officers or legal advisers, nor can they—or any of us—take a view on the guilt or innocence of those to whom they provide consular assistance. Nevertheless, no one in the Chamber this afternoon will fail to appreciate that this has been and continues to be a difficult and distressing time for the men and their families. I am grateful for the opportunity to put on record the Government’s approach to the case and the consular assistance we have provided and continue to provide. We believe that our consular staff have behaved with professionalism despite considerable provocation at times.

[Brendan O'Hara]

The Minister says that the matter is not political, but will he confirm that of the 35 people originally arrested, the Indian contingent have been allowed to go home and seek employment, the 16 Estonians are being subsidised in their food and accommodation by the Estonian Government, but the six British servicemen have been instructed by the Foreign and Commonwealth Office to beg from family and friends to house and feed themselves? Although we are not asking the Minister to get directly involved in the Indian judicial system, there must be a system of support from the Foreign and Commonwealth Office.

[Mr Swire]

I will come to that. At no stage have we asked anyone to beg for anything.

On 12 October 2013, the ship was detained by the Indian coastal guard security off the Tuticorin port in Tamil Nadu. Consular staff in Chennai were alerted on 14 October to reports of a vessel being held, and the Indian legal process began four days later on 18 October. Permission to visit the men was sent on the same day to the Ministry of External Affairs. Consular staff conducted their first prison visit on 21 October and passed on messages to the men’s employer, lawyer and families.

The crew were charged under the Arms Act for being in possession of assault rifles and ammunition, the Passports Act for entering India without a valid visa and the Essential Commodities Act for procuring fuel in India without permission. During the men’s imprisonment, consular staff visited them on no fewer than 18 occasions. Consular staff liaised with the prison authorities to ensure that the men received an enhanced diet, and they raised medical and dental concerns. Staff also helped the men to maintain regular contact with their families, friends and the Mission to Seafarers by passing on letters and facilitating visits. Since the men’s release from prison on 5 April 2014—one was released later, on 19 July 2014—consular staff have continued to provide assistance by liaising with the company AdvanFort, the lawyer, hotel and police, and by putting the men and their families in contact with organisations that offer help from financial assistance to counselling. Ultimately, however, it is each man’s decision whether to take up those other sources of help. Some of the men have also received assistance from private individuals and their own regimental associations.

As the hon. Member for Wansbeck knows, I managed to track down Samir Farajallah, who owns AdvanFort, and I reminded him of his responsibilities, but as I know the hon. Gentleman will appreciate, communication with Mr Farajallah remains extremely difficult. Although, as I have said, we cannot interfere in another country’s legal system, the British Government—the Prime Minister, the Secretary of State for Foreign and Commonwealth Affairs and his predecessor William Hague, who represented one of the men, Nicholas Simpson; as well as British officials and myself—have repeatedly raised the case with the Indian authorities at local, state and national level, urging resolution as quickly as possible. I raised the matter most recently with the Indian Foreign Secretary in my office here in London on 25 June.

As the hon. Member for Wansbeck said, in July 2014 the Madurai Bench of the Madras High Court dismissed all charges against the crew. As is allowed under Indian law, the prosecution decided to exercise its right of appeal and take the case to the Supreme Court in New Delhi, so the legal case continues. At the Supreme Court hearing on 28 April this year, the judge committed to giving a written verdict. The Supreme Court has been in recess since then, and it reopens tomorrow on 1 July. There is no set date for the written verdict, and the hon. Gentleman will appreciate that we cannot request one.

Meanwhile, I am conscious that the decision of the Indian authorities to prevent the men from leaving India until the completion of the legal process has taken a great toll. Among other things, it has meant that they could not support their families through illness and the birth of a first child. We have made representations on compassionate grounds and issued emergency travel documents to some of the men, but I repeat that this is a legal process in which we cannot interfere. That is why consular staff have provided lists of lawyers and suggested that the men seek independent legal advice.

Although we, too, are frustrated by the continuing case, we are unable to demand the release of British nationals overseas. We are unable to interfere in another country’s legal process. However, we have made and will continue to make known our ongoing interest in the legal case at the highest level. Indeed, if things are not satisfactorily resolved by the time Prime Minister Modi visits, the matter will almost certainly be raised at that point as well. We will express our desire for a swift conclusion, and we will continue to do all we can within the remit of our consular service for the men and their families.

I thank all the hon. and right hon. Members who represent the families for continuing to take such an interest in the case, and I am grateful for the opportunity to update the House. I repeat that the Supreme Court hearing starts tomorrow, and we hope that it will issue a swift ruling. We do not want to do anything, inside or outside the Chamber, which could in any way prejudice the men’s chances of an early release and repatriation to their families and loved ones.

[Sir Roger Gale (in the Chair)]

Order. I would be grateful if hon. Members who are leaving the Chamber did so via the Members’ entrance, because we need to admit some members of the public who are in wheelchairs. I will suspend the sitting for a couple of minutes to facilitate that process.

16:38

Sitting suspended.

Welfare Reform (People with Disabilities)

Tuesday 30th June 2015 Westminster Hall

16:40

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

I beg to move,

That this House has considered welfare reform and people with disabilities.

It is a pleasure to serve under your chairmanship once again, Sir Roger. It is poignant that this debate falls on the very day that the independent living fund closes. A further £1.2 billion is being cut from support for people with disabilities. Such cuts were a hallmark of the Tory-led coalition, and many are concerned that not only will this increase but the cuts will get worse under this Government. My purpose in calling this debate is to highlight where we are now and the effect on disabled people, but I also want to draw attention to the punitive and dehumanising culture that has been part of the delivery of these welfare reforms, which set the tone for the leadership within the Department for Work and Pensions and the Government’s wider tone on social security.

In the final days before next week’s Budget, I urge the Minister to listen to disabled people, their carers and the millions of compassionate people across the UK who are saying that enough is enough. Going back to the 2010 emergency Budget, we know that £500 million was cut within weeks of the general election. The following year the analysis by Demos on behalf of Scope assessed the cumulative impact of the Government’s so-called reforms, and estimated that, by 2018, £23.8 billion of support would have been taken from 3.7 million people with disabilities. Demos identified a total of 13 cuts, of which I shall mention the top few.

First, the indexation of social security payments was changed from the higher retail prices index to the lower consumer prices index, and there was also a 1% cap on the uprating of certain working-age benefits. That cut £9 billion from 3.7 million people. Secondly, people on incapacity benefit were reassessed, and we could have a whole separate debate on that—we had a number of debates in the previous Parliament on the work capability assessment. That cut £5.6 billion of support available to people with disabilities. Thirdly, there was the limiting of the time that disabled people in the work-related activity group are able to receive the employment and support allowance. Such people are now able to receive only two years of support, which is a further cut of £4.4 billion. Fourthly, and this is four of 13 cuts, disabled people in receipt of disability living allowance are being reassessed to determine whether they are eligible for the personal independence payment, which is another cut of £2.62 billion.

How have the Government managed that? How has there been buy-in from the public? How can such draconian cuts be acceptable? Part of the Government’s strategy has been the invidious spreading of a culture of blame and fear. In the 1980s we saw the unions being targeted; today the focus is on the poor and the vulnerable. The narrative associated with the so-called welfare reforms has been one of divide and rule, deliberately attempting to vilify people who receive social security as the new undeserving poor.

[Angela Rayner (Ashton-under-Lyne) (Lab)]

In the past year, across Tameside, Oldham and Manchester there has been a 230% increase in the number of people going to citizens advice bureaux for help after being sanctioned. One man in my constituency who is not computer-literate, is dyslexic and has a recognised learning difficulty was sanctioned for four weeks for not properly filling out a job search agreement. Does my hon. Friend agree that Ministers need urgently and closely to consider the impact of benefit sanctions across the whole of Greater Manchester?

[Debbie Abrahams]

My hon. Friend is absolutely right about the punitive sanctions regime. We have called for an independent inquiry into sanctions, following on from the Oakley review. Oakley himself said that his review was “insufficient,” which the Government still refuse to accept. Will the Minister respond to that?

The Government have spread a culture of pejorative language, such as “shirkers” and “scroungers”. They have intentionally attempted to demonise social security recipients, including disabled people. The innuendo that people with a disability or illness might be faking it or are feckless is, quite frankly, grotesque and belies the epidemiological data.

[Mr David Anderson (Blaydon) (Lab)]

The Chancellor of the Exchequer has said, “When you go to work in the morning and see the curtains of your neighbours pulled tight, you know there is somebody lying in there who can’t be bothered to get out of bed and go to work.” Somebody might actually be lying in there because they cannot get of bed owing to an incurable disease. Is it any wonder that some people tar everyone with the same brush? Was that not a deliberate ploy by the Chancellor?

[Debbie Abrahams]

My hon. Friend is absolutely right. I cannot remember whether it was during the Budget or the autumn statement, but it is absolutely shocking that the Chancellor used that language. Incapacity benefit and ESA are recognised as good population health indicators, so what is implied by words such as “shirkers” and “scroungers” is not supported by the evidence.

[Richard Graham (Gloucester) (Con)]

I am worried by the hon. Lady’s language. She is attempting to project the party of government as demonisers who are against people with disabilities, which is offensive to those of us who employ people with physical and mental disabilities. I ask her to look at the other side of the coin, which is the work that some of us have been doing on events such as Disability Confident to help get people back into work. What many people with disabilities in my constituency want is not more endless handouts but the respect of being encouraged and enabled to get jobs. Today some 320,000 more people with disabilities are in jobs than was the case a year ago.

[Debbie Abrahams]

I would not want to impugn the hon. Member’s reputation because I know he is an honourable gentleman, but, frankly, I refer back to the language that is being used. We can see a pattern and, again, the Government have to be responsible for that. I will come on to what the Government have done, or how little the Government have done collectively, to support people with disabilities into employment.

Unfortunately, the regular misuse of statistics is another way that the Government are trying to harden the public’s attitude. The facts are that, in an ageing population, the largest proportion of social security recipients are pensioners and not, as is often implied, the workshy. Again, fear and blame are not the Government’s sole preserve. We all need to be very careful of the language that we use and how it is perceived. As the Government prepare to cut £12 billion from the annual social security budget in next week’s Budget, there are real concerns that, in addition to potentially slashing tax credits for the working poor, they will cut further support for working-age people with disabilities.

A recent analysis of trends in disability benefit spending showed that, far from being generous, disability benefits are approximately 15% of average earnings. With the recent changes—the 1% uprating and the indexation to the consumer prices index—they will fall even further. The 2012 public spending on people with disability was just 1.3% of GDP. If we compare that with our European neighbours, we find that that is lower than Austria, Belgium, Croatia, Denmark, Estonia, Finland, Germany, Hungary, Iceland, Luxembourg, Italy, the Netherlands, Norway, Portugal, Serbia, Spain, Sweden and Switzerland.

That figure has decreased since 2012, given the Government’s welfare spending cuts in 2013. Total social security spending in the UK in 2012, before the cuts, was only 15.5% of GDP. That spending supports our pensioners, the sick and disabled, people in low-paid work and people out of work. We are 17th out of 32 EU states. Again, I contrast that with the fact that the Government are trying to say how generous we are in terms of what we provide.

[Ian Lavery (Wansbeck) (Lab)]

Does my hon. Friend agree that it is an outrage that disabled people spend an average of £550 extra in connection with their disability, and that one in 10 disabled people spends more than £1,000 extra?

[Debbie Abrahams]

My hon. Friend is absolutely right. I will come on to the additional costs of being disabled.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The hon. Lady mentioned percentage of GDP, which I might address later if I have a chance to catch Sir Roger’s eye. What does she think the percentage should be? We spend 0.7% on international development and 2% on defence. What does she think is the appropriate and right percentage of GDP to spend on disability?

[Debbie Abrahams]

I would not be so pushy as to state such figures at this stage in a Parliament. I am making a point about the mood music that the Chancellor in particular is stressing before the next Budget. I warn hon. Members that we are not over-generous; our spend is 1.3%, and we need to bear that in mind.

There are more than 12 million people in the UK living with a disability, impairment or limiting long-term condition, 7 million of whom are of working age. That is one in five of the population. Of those, 4 million working-age disabled are working already, and another 1.3 million can and want to work but are currently unemployed.

[Ian Paisley (North Antrim) (DUP)]

Does the hon. Lady agree with me that there are about 5,000 people with motor neurone disease, which is a rapidly progressive and fatal illness, and that not all of them can obtain a DS1500? That pushes things to the point where people think that they can or should work, when they are not physically capable of doing so. The Government must deal with that rapidly to ensure that all 5,000 people in the UK with MND are taken care of.

[Debbie Abrahams]

The hon. Gentleman makes a good point. The work capability assessment’s insensitivity to mental health conditions, progressive conditions and fluctuating conditions makes it unfit for purpose at the moment, and there is a lot of evidence to support that.

[Richard Graham]

The hon. Member for North Antrim (Ian Paisley) raised an interesting point about MND sufferers. Has the hon. Lady also thought about people suffering from multiple sclerosis, a condition that often deteriorates over time? Some of my constituents with MS who have been assessed physically and moved from disability living allowance to personal independence payments are receiving an increased amount of money because their condition has worsened over time. It varies from condition to condition and situation to situation, does it not?

[Debbie Abrahams]

It does indeed, but the fact is that 600,000 fewer people will be eligible for PIP than currently receive DLA; those are the statistics. However, I will come to that.

The UK currently has a disability employment gap of 30%. The Oldham fairness commission, which I chaired, found that the local disability employment gap is 34%. As the vast majority of disabled people—90%—used to work, that is a waste of their skills, experience and talent. Attitudes, perceptions and judgments can often get in the way of identifying someone’s talent or skills—

16:54

Sitting suspended for a Division in the House.

17:09

On resuming—

[Sir Roger Gale (North Thanet) (Con)]

I indicate to Members now, to allow them a little preparation, that I intend to impose a five-minute limit on Back Bench speeches. Six hon. Members from various parties have indicated a desire to speak: if you can manage it in less than five minutes, it will help others. That will leave about five minutes each for Opposition Front-Bench speeches and for the Minister.

[Debbie Abrahams]

I was discussing the experiences of disabled people, 90% of whom have worked. For people with disabilities, the experience of an interview can be particularly discouraging.

People with disabilities should be able to access the same opportunities as everyone else, including being able to use their talent and skills to the best of their ability. No one should feel that they are unable to reach their potential or that their hopes and dreams do not matter. The Government have cut the support for disabled people that allows them to live as normal a life as possible, but they have failed to provide meaningful support to help disabled people into work and enable them to thrive, thereby protecting them from leaving the labour market prematurely.

Having just one disability employment adviser for 600 disabled people is quite shocking and reveals the Government’s priorities. Similarly, there is chaos, and inadequacies, in the specialist employment support service Access to Work, which last year supported just 35,000 disabled people into work and at work. That just does not cut it. What happened to the money de-invested from Remploy, which was meant to be reinvested in Access to Work?

The extra costs commission analysed the additional costs faced by disabled people and found that on average they spend an extra £550 per month on costs associated with their disability. By contrast, in 2015-16 the average award of personal independence payment or disability living allowance was £360 per month. On top of this, as I mentioned earlier, Scope has estimated that 600,000 fewer disabled people will be eligible for support. Couple this with the £3.5 billion cut to social care and it all adds up.

It comes as no surprise that people with disabilities are twice as likely to live in persistent poverty as non-disabled people: 80% of disability-related poverty is caused by extra costs. This has implications for disabled people’s families as well, because a third of all families living in poverty include one disabled family member.

George has a mild learning disability. He has suffered with a bad back since an accident a few years ago and can no longer do the heavy lifting work that he used to do when he worked in a warehouse. George works 12.5 hours a week as a cleaner in a local college, but wants to work more to earn working tax credit. He said:

“Hopefully I might be able to find another job or increase the hours with the job I’ve got. Next year I might have a word with my supervisor but everyone is short of cash at the moment so I’ll have to wait and see!”

For now, he relies on employment support allowance to top up his wages. He lives a modest life. He attends a local self-advocacy group, where he receives additional support when he needs it, and meets up with friends and family when he can. He certainly does not have cash to spare. Without ESA he could not afford to get out and about and would risk becoming very isolated. He has been in financial difficulty in the past, and it was only because of the support he got from the self-advocacy group that he managed to keep his own home—he was under threat of being made homeless. George is lucky. Unfortunately, thousands of people do not have the benefit of the support that he has.

I am sure it has not escaped your attention, Sir Roger, that more than 336,000 people have signed a petition calling on the Government to publish data on the number of people on incapacity benefit and ESA who have died since November 2011. This petition was started followed a ruling by the Information Commissioner on 30 April compelling the Government to publish these data in 35 days, including the number of those who died following being found fit for work.

Last week there was an amazing sequence of events. On Monday, the Secretary of State told me that he could not publish these data because they were not kept, and told me to stop scaremongering; on Wednesday, the Prime Minister said that they would be published; and this was swiftly followed by the Government saying that they were appealing against the Information Commissioner’s ruling, stating that publishing these data would lead to “probable misinterpretations” and “was too emotive...and wasn’t in the public interest”. What an absolute shambles! I could not disagree more. This is definitely in the public interest. As a former public health academic, I am more than aware of the strict criteria for establishing causality, but there are no grounds for not publishing numbers of actual deaths as well as the Government-proposed standardised mortality ratios, including those who died within six weeks of being found fit for work. Will the Minister now confirm when these data will be published?

At the same time, following on from Select Committee on Work and Pensions inquiries into sanctions beyond Oakley, I should be grateful if the Minister confirmed when the Government will publish redacted information on the circumstances of the deaths of claimants who died while sanctioned, and what changes the DWP instigated in the light of reviews of these deaths. It is notable that, since the Government’s new sanctions regime, the rate of sanctioning of people on IB and ESA has doubled. Will the Minister also confirm whether the significant surge in suicide rates for both men and women since 2010—but particularly for working-age men—is being analysed by the DWP? I thank my former public health colleague Ben Barr for providing me with these data.

My final comments relate to next week’s Budget. There is much concern that the Government may once again target disabled people. Will the Minister pledge today that there will be no further erosion of support for disabled people, including taxation of universal disability benefit or restricting the Motability scheme, which enables over 56,000 to keep their job? He did not answer the questions I asked him during our previous exchange on the PIP process, so I should be grateful for a yes or no answer today.

Being disabled is not a lifestyle choice. I am proud of the principles underpinning our model of social welfare, where any one of us is afforded protection should we fall ill or become disabled, but it is at risk from this Government. I urge the Government not to take any further steps along their regressive path.

[Sir Roger Gale (in the Chair)]

The debate will end at 5.55 pm. I shall have to call the Front Benchers to speak not later than 5.40 pm.

17:17

[Mr David Burrowes (Enfield, Southgate) (Con)]

It is a pleasure to take part in this debate, which is timely as we look forward to the Budget. It allows us to consider welfare reform and people with disability without being drowned out by the common refrain and focus on how much money needs to be saved from the welfare budget. We can look seriously at what we mean by disability and how we can stand up properly for those who are vulnerable.

I want to make three points. First, we need to support and uphold the positive value of a generous safety net. We should be able to do that, be proud of it and stand up for it. We have to find a better way to discuss welfare. We should focus particularly on disability, so that we can properly protect vulnerable people. We need a positive approach.

I recognise that there need to be cuts in the overall welfare spend, not least because, as the Chancellor said, we have 1% of the world’s population, 4% of its GDP, and 7% of global welfare spend, so reform is needed. Although we are considering the subject through the prism of cuts, protection for people with disabilities should not be regarded as being at the end of the queue, after protection for pensioners and child benefits. Disability campaigners are concerned about what is happening. Disability should not be at the end of the public spending queue after the NHS, international development, which is protected, defence, which some of us think should be protected more, and education. Somewhat mischievously, I asked what percentage of GDP should be given to disability, but we should consider the real spending requirements before considering what is needed in terms of reform.

It is worth making some international comparisons. We should be proud that we spend £33.5 billion each year on benefits for the disabled, excluding social care. It is a small amount when shared among the many vulnerable people. We all have individual experiences, as I do in my surgeries, of people who are challenged by living on those benefits and dealing with some of the reforms. Nevertheless, as a proportion of GDP, the UK spend on benefits for the disabled is double that of the US, a fifth more than the European average and six times that of Japan. We can be proud of that record while realising that there are ways that we can do better within that budget.

We should uphold the principle of dignity—the dignity for disabled people of being independent, for those who can be live independently, and the dignity of working for those who are able to work, although not everyone can. It is also about dignity in terms of showing compassion, standing alongside them and being able to support them in the ups and downs. Some need that safety net temporarily, and some need it permanently.

My second point is on the importance of de-weaponising welfare. On the one hand, campaign groups say that the cuts will fall on the most vulnerable and the poor, and as much as I congratulate the hon. Member for Oldham East and Saddleworth on securing the debate, we did hear that from her. On the other hand, the tabloids—do not just put this at the door of Ministers—say that it is all about the workshy and condemn them for exploiting the system. Everyone is in the mix. We need to get beyond that argument and look at what needs to be achieved for us to have an honest debate.

The facts are important and they need to be heard. The Institute for Fiscal Studies has said that between 2011 and 2014, spending on disability living allowance increased by £1.8 billion, spending on attendance allowance increased by £200 million, and spending on carer’s allowance increased by £400 million. The number of unemployed disabled people has fallen by more than 15% over the past year. That matters; it means that 230,000 more disabled people are in work, so it is not all scaremongering and doom and gloom.

There are challenges—the independent living fund was mentioned. It was scrapped, but the funds were not scrapped. Let us be honest about the situation: the £300 million was reduced to £262 million and the funds were devolved to local councils, where efficiency savings can be made by having everything under one roof. We have to see how those efficiencies are made, but the funds are there to help the same people as the ILF helped, and for the same reasons. We have to have an honest debate. We have to recognise that we need to be on the side of the vulnerable and the poor. Not all disabled people are poor—in fact, two thirds are not in low-income brackets. We need to recognise that, while understanding that they all might be vulnerable in the long term.

[Julian Knight (Solihull) (Con)]

I am very much interested by what my hon. Friend has said and how he has tried to take the middle ground in the debate. We have heard a lot about the apparent failures of the Access to Work programme, yet disability employment is now at 3.1 million. The employment rate for disabled people rose by 2.5% in the year to September 2014. I hope my hon. Friend agrees that those are encouraging figures, but that more needs to be done.

[Mr Burrowes]

That is right. There are some excellent Disability Confident events in our cities that help those figures, and we must support them.

I am calling for an honest debate. The IFS said that the number of DLA claimants is twice what it was in 1992. We cannot say that that increase is simply because of an increase in the number of disabled people; we have to look at why the number of claimants has doubled and seek to make reforms.

We should look at a new way of dealing with the whole welfare debate, and in particular at disability and the spend needed in that area. We should look not only at benefits, but at social care, which poses serious challenges for local authorities dealing with disabled people. We need integration. We are looking at personalised budgets, so we should look at their impact on social care, the cuts and challenges, as well as on the issue of disability benefits. Let us bring that together for all our constituents and work hard to give them the best deal.

As we approach the Budget, I want to be able to look disabled people square in the face and say, “Whatever is happening around the economy, we are wholly committed to being on your side and giving those disabled people who need it that independence for living and work.” We need to show compassion and that we are on their side all the way along.

17:24

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Roger. I congratulate my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) on securing this important debate. I know she feels strongly about the subject.

The Budget speech given by the Chancellor of the Exchequer on 18 March set out that there would be £12 billion of welfare cuts by 2017-18, yet since then there has been the general election campaign, numerous Prime Minister’s questions, Department of Work and Pensions questions and Treasury questions and we still have no definitive answers on where the cuts will fall. Indeed, on 22 June, the Minister was asked directly by my hon. Friend the Member for Bolsover (Mr Skinner) whether he would rule out cutting the benefits of any disabled person over this Parliament, but all the Minister gave in answer was:

“We are clear that we will protect the disabled and vulnerable.”—[Official Report, 22 June 2015; Vol. 597, c. 600.]

This area needs definitive answers. With the uncertainty, a number of possibilities are regularly mooted for the Chancellor’s next Budget, such as restrictions to carer’s allowance and to the contributory element of employment and support allowance, as well as taxing disability living allowance, personal independence payments and attendance allowance. All those things would have an enormous impact on the weekly incomes of the most vulnerable people in our society.

Since the election, I have had some of the most vulnerable people in our society—the disabled—coming to my constituency surgeries extremely worried about what may happen in this Parliament. That includes people with mental health problems and people who have been disabled since childhood.

[The Parliamentary Under-Secretary of State for Work and Pensions (Justin Tomlinson)]

indicated dissent.

[Nick Thomas-Symonds]

The Minister shakes his head, but he is welcome to come to my surgeries and hear what is said to me, because that is where the firm evidence is. Take, for example, the specific worries of sufferers of long-term conditions such as Parkinson’s disease. Those in receipt of long-term disability living allowance will soon be starting a reassessment, yet the mobility criterion has been reduced to 20 metres. Parkinson’s is a fluctuating condition, so they are extremely worried about losing the wheelchairs and scooters from which they may benefit, for example. Similarly, there are Parkinson’s sufferers in the work-related activity group. The nature of that group is about going back to work, but the condition is degenerative. Does the Minister not accept that the uncertainty created since the Chancellor’s Budget has been a source of worry and great anxiety to those in our society in receipt of benefits? I can only urge him to make representations to the Chancellor to at least come clean in the Budget on 8 July on precisely what will happen.

[Kirsten Oswald (East Renfrewshire) (SNP)]

I very much agree with what the hon. Gentleman has said. I have had email upon email from my constituents saying that they are hugely worried about what will happen in the Chancellor’s Budget. They are people with disabilities, their carers and their families—people in the most difficult of circumstances who are suffering huge anxiety and are feeling stigmatised, too. They do not want to hear so much rhetoric about hard-working people; they may well be hard-working people or aspire to be. We also heard something about handouts. Again, I agree with the concerns expressed by hon. Member for Oldham East and Saddleworth (Debbie Abrahams) about terminology. These people deserve our support, and it is our job to provide it.

[Nick Thomas-Symonds]

I agree with the hon. Lady. The Government’s language is deeply worrying. The hon. Member for Enfield, Southgate (Mr Burrowes) made a point about weaponising the welfare state, and I am afraid that language like “shirkers” does exactly that.

Above all, I hope that through this debate the Minister has heard a real strong voice from the most vulnerable people. Some years ago, Aneurin Bevan said of the plight of those who were out of work in the winter months:

“It would be a disaster and it would be a disservice to the House if the feelings of those men were not allowed to find an echo within these walls.”—[Official Report, 26 November 1931; Vol. 260, c. 632.]

The same can be said of disabled and vulnerable people in 2015. If nothing else, I hope that today their voice has found an echo within these walls.

17:29

[Peter Heaton-Jones (North Devon) (Con)]

It is a pleasure to serve under your chairmanship, Sir Roger. I congratulate the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) on securing this important debate on a subject in which I take something of an interest.

I would like to reflect on the language that we use. This is an emotive and emotional subject for many people, so it is important that Members from all parties get the language right. I must say that I do not recognise some of the language being used to describe the Government. I certainly would not want to sit as part of a Government party that had those sorts of feelings and thoughts, and I really do not believe that we have. It is wrong to suggest that we in this party have that sort of thought, because we really do not. I do not recognise that at all.

I am very aware of the strictures of time, Sir Roger, but I want to say a few things. It seems to me that the holy grail is to help people with disabilities off welfare and into work. That would be a useful direction for this discussion to go in. It is vital that where people are able to work, they are given the opportunity to do so. The Government should support them along that road as much as possible. I am struck by the fact that today there are 320,000 more people with disabilities in jobs. That is extremely significant.

Of particular significance for me is those with mental health conditions who are getting back into work, because I have some relevant experience. I worked for five years as a manager in an office where we made particular provision to ensure that we could employ people with mental health conditions. A lot of it is to do with understanding the individual—there is no one-size-fits-all solution. By being understanding and putting into place some very personal provision, we were able to ensure that people felt that they were able to work for us and that they were not disabled by their disability, if I can put it like that. I am a big believer that it is vital to help people off welfare and into work where that is possible. I really want to explore that further, as will my hon. Friend the Minister, I am sure.

The Government have introduced a number of pilot projects, which are to be welcomed. For too many people with disabilities, it is simply too difficult to get into a job. In addition, an episode of mental ill health can set people back disproportionately compared with people who have physical health ailments. Until now, the system has not recognised that sufficiently. The Government are now introducing a number of evidence-based pilot projects to try to see how people are being assisted and how we can help them more. I would be interested to hear more from the Minister on that, because it is really important.

The Disability Confident events have been mentioned already. They have been hugely constructive. I am looking to organise one in my North Devon constituency, and I know that many right hon. and hon. Members will be looking to do the same in their constituencies. The events do what they say on the tin: people with a disability need to be given the confidence to get off welfare and back into the world of work. That is vital.

I believe that the Minister and the Government will be doing good work in this area. I cannot second-guess—any more than the Minister can, I suspect—what our right hon. Friend the Chancellor is going to say in the Budget statement a week from now. Nevertheless, from my conversations with the Minister, I know that he and the Government are absolutely committed to doing their best.

I bring my comments full circle by saying that we really need to be careful about the tenor of the debate and the language used on all sides. I look forward to hearing in positive terms from the Minister about the welfare reforms and how they will help disabled people, particularly those with mental health conditions, to get off welfare and back into work. That is our holy grail.

17:34

[Mrs Madeleine Moon (Bridgend) (Lab)]

I draw attention to the interest that I declared in a previous debate. I would rather not repeat it.

We have talked a lot about language. Language is critical, because we are talking about a spectrum of capability and disability. Sometimes, it is all too easy to lump the disabled all together. Part of the problem is that that has happened, largely in this place, but also in the media and, sometimes, in the mind of the public. That is dangerous. We in this place are responsible for ensuring that the public are given a wider and clearer understanding of what we are talking about. We have failed in that. It is time that we stopped, looked at our language, and were clearer.

There is no doubt that there has been some language of “shirkers” and “scroungers”, but there has also been a failure to recognise that some of the people who undergo assessments are terminally ill. They have been assessed by their GPs and consultants as having life-ending conditions. They are the people about whom I want to talk. They should not have to face accusations of being shirkers. They should not face onerous assessments and a requirement that they justify their access and right to benefits.

These are people whose lives are able to continue only because of the carers who care for them with deep love and affection. They are people for whom the assessment process brings huge fear, not only of not getting the benefit, but of not being able to stand up and describe what their life is like—of not being able to say, “I deal with incontinence every day. I can’t swallow. I can’t speak. In fact, I can’t even articulate to you how bad my life is.” We need to recognise that too many people in this country endure that on a daily basis.

I remember, when my husband was passported on to personal independence payment, having to talk, on the telephone, about what his life was like. I have to say, that is not easy. We should not place people in that position. A few days later, I received a letter that said, “If you don’t hear from us by this date, please come back to us.” I did not hear, so I went back to them, and they said “You don’t need to ring us. You don’t need to talk to us.” I had got myself into a state before I rang, and I am somebody who has dealt with disability all their professional life. I had made 20 or 30 phone calls before I got through, and to be told, “Oh, we don’t know why we send those letters out. We don’t need to talk to you; it’s under process,” is insulting.

Let me mention briefly the DS1500. It is an extremely painful thing for someone to receive, because it basically tells them, “This life is about to end”—potentially in six months. I have dealt with people with terminal cancer who have refused a DS1500 because they do not want to be told that. They do not want to know it, and yet it is a huge passport for people to other benefits. We have to look at the DS1500, because many GPs are loth to discuss giving a DS1500 to someone who is terminally ill. We cannot allow that to continue.

We have to look at how we ensure that people who have life-ending illnesses are dealt with compassionately and with dignity, and we are not doing that now. We need to ensure that their carers are enabled to carry on in a way that makes them feel trusted and respected by the state, not like a scrounger or someone who is not dealing with the worst horrors that life can bring. We must always remember that disability benefit fraud is at 0.5%. Let us keep that in mind.

[Sir Roger Gale (in the Chair)]

I apologise to the hon. Member for Islwyn (Chris Evans) because we have run out of time for non-Front-Bench speeches. I am placing your presence on the record, but you may seek to intervene in one of the winding-up speeches.

17:40

[Natalie McGarry (Glasgow East) (SNP)]

Thank you for the opportunity to speak in this debate, Sir Roger. I thank the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) for making a necessary and pertinent examination of what is happening in the welfare state, with particular regard to disabilities. As the SNP spokesperson on disability, this is a matter of great importance to me.

We have had some good speeches today, and I particularly welcome the conversation about the narrative that we spin around disability. The general election was particularly bruising, and for disabled people to hear parties talk not about being the party of people with disabilities, but about hard-working people, with the inference that people who are not in work are not hard-working and do not aspire to be, damages the debate. Today in the Chamber, my SNP colleagues are debating the Committee stage of the Scotland Bill, in particular welfare and disabilities. Many of the amendments in our name are aimed at ensuring that the Scotland Bill delivers more devolution and does not devolve further austerity and shackle the Scottish Parliament to further Tory attacks on the welfare state. They are the result of extensive consultation with civic Scotland and work done in partnership with other organisations.

Just this morning, 12 of Scotland’s leading third sector organisations published a letter in The Herald, timed to coincide with today’s debate and ahead of the emergency Budget next week, expressing grave concerns about the severe detrimental impact of the Government’s austerity measures on low and middle-income families. In particular, they highlight the threat to tax credits and other support that would fall within universal credit and say to us, here in this House, that as, we begin the process of defining the shape of Scotland’s social security system, we need to

“understand how high the stakes are”.

It is incumbent on every one of us—not just those from Scotland—to listen to those voices. The groups that have put their heads above the parapet on this matter are some of Scotland’s largest and most influential civil society organisations, including Citizens Advice Scotland, Barnardo’s Scotland, the Child Poverty Action Group in Scotland, the Church of Scotland, Inclusion Scotland, One Parent Families Scotland, Oxfam Scotland, the Scottish Trades Union Congress and the Trussell Trust. These organisations bear on their shoulders much of the burden of mopping up some of the worst effects of austerity on the most vulnerable in our society.

The UK Government’s programme of welfare reform has had a devastating impact on too many people across the country. In Scotland, the Scottish Government estimate that UK Government welfare cuts have reduced welfare funding in Scotland by almost £2.5 billion in 2015-16 alone. That estimate comes before the additional planned welfare cuts of perhaps £12 billion across the UK, which can only have a further devastating impact on communities across Scotland and the UK. Where will those cuts be made? How much more can be cut?

What is absolutely clear is that people with disabilities are disproportionately impacted by welfare reform, which fits in perfectly with a pattern whereby the UK Government’s cuts programme hits the most vulnerable in our society hardest, punishing them for the reckless damage done to the economy by the few at the top. Further planned cuts can only cause greater and sustained damage, driving yet more households into poverty and desperation. The roll-out of the personal independence payment has been riddled with delays and errors, which have caused a great deal of distress and hardship for people with disabilities. BBC News reports that 78,700 people are currently waiting to hear whether they can claim PIP, 3,200 of whom have waited more than a year to have their claims processed and 22,800 have waited more than 20 weeks. In June 2015, a High Court judge ruled in favour of two PIP claimants who had had their applications delayed by around nine months, to the detriment of their health and financial security.

[Chris Evans (Islwyn) (Lab/Co-op)]

Is the hon. Lady as concerned as I am by the Motor Neurone Disease Association finding that, accompanied with the move to PIP and universal credit, people with MND are now expected to attend face-to-face assessments, despite clear medical evidence that such assessments have a severe impact on their condition?

[Natalie McGarry]

I thank the hon. Gentleman for his intervention and echo his concerns. I would add that other people with systemic and advanced disabilities have to attend test centres that are well out of their geographic reach. The Scottish—

[Sir Roger Gale (in the Chair)]

Order. I would urge the hon. Lady to leave the Minister time to respond to the debate.

[Natalie McGarry]

The Scottish Government have repeatedly called for a halt to the PIP roll-out, which has been an extremely messy, damaging and stressful process for claimants. Last week, I tabled a question to ask the Minister what review was being done of those with mental ill health who had been denied PIP on the basis of tests with a physical aspect. The answer was that the Government are not currently reviewing the matter, which is no comfort to constituents of mine who have come to me in abject despair having been denied PIP and become embroiled in the messy, uncertain and lengthy appeals process.

Disabled people are already at risk of being in lower-income households, and the UK Government’s cuts are making things worse. Currently, half of all people living in households with a disabled adult are in the bottom 40% in terms of income.

[Carolyn Harris (Swansea East) (Lab)]

Will the hon. Lady give way?

[Sir Roger Gale (in the Chair)]

Order. I am terribly sorry, but the Minister must have the time to reply to the debate.

[Natalie McGarry]

Some 20% of individuals in households containing a disabled adult were in relative poverty. For households with no disabled adult, the figure was 14%.

In conclusion, I urge the Minister to halt the move to PIP and to implement an urgent review of the assessment at test centres and the unconscionable delays in the assessment and appeals systems. I also urge him to listen to disability organisations in civic society ahead of next week’s Budget.

17:47

[Helen Goodman (Bishop Auckland) (Lab)]

I congratulate my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) on securing the debate and on making an excellent and well-informed speech. I also thank my hon. Friends the Members for Torfaen (Nick Thomas-Symonds) and for Bridgend (Mrs Moon), who spoke powerfully from her personal experience and demonstrated the sensitivity and difficulty of this issue for many people.

Government Members have been telling us that the key thing is to get people with disabilities back to work, but the Government’s schemes have unfortunately not succeeded. The Work programme has failed, with fewer than one in 10 disabled people getting into work. Work Choice has not worked well. Access to Work has been cut. The number of disability employment advisers has been cut. Those things are not going as Members across the House would like. We must acknowledge the fact that, in any society at any time, some people will always be dependent on such benefits.

I was disappointed that the Minister thought that he could somehow set the debate up well by stating previously that PIP claimants are only waiting four weeks. I have gone through my constituency case load and I can tell him that people are waiting much longer not only for their PIP assessments, but for the money. For example, Mr C attended a medical assessment for PIP in April, but he has not received any correspondence about whether it was successful. He has been awarded ESA, which has been backdated, but it takes 13 weeks for him to get the money. I do not know what he is supposed to live on in the meantime. Perhaps the Minister will tell us.

The most important issue that I want the Minister to address is where the £12 billion in cuts are going to come from. Will he now rule out cuts to PIP, cuts to attendance allowance, cuts to carer’s allowance, cuts to industrial injuries disablement benefit and cuts to ESA? Will he further rule out taxation of PIP? As the Royal National Institute of Blind People has said, it is absurd to tax a benefit designed to cover the costs of disability. I hope the Minister will rule those things out.

17:50

[The Parliamentary Under-Secretary of State for Work and Pensions (Justin Tomlinson)]

It is a pleasure to serve under you, Sir Roger. I have a limited amount of time, but I will do my best to address as many of the points made as I can—I do not have a set speech. If I run out of time, we will send further information.

I congratulate the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) on calling the debate. She is a long-standing campaigner in this area, and that does shape what we do. She covered many things, but she can always come and see me face to face to run through some of them—my door is open and she has a huge amount of experience. I picked up the point about language. That is not something that I recognise as a Minister, but if there are examples that the hon. Lady wishes to bring to my attention, she should please do so.

[Mr Anderson]

Will the Minister give way?

[Justin Tomlinson]

I have only four minutes in which to respond, so that is what I have to do.

On the disability employment gap, in the past 12 months, an extra 238,000 people got into work, which is 650 a day, an increase of 2.4%, which is the biggest in the past decade. We are committed to halving the disability employment gap—it is about a further 1 million. That is a key priority.

Scope’s Extra Costs Commission report was fantastic. I have already met with Scope’s chief executive to look at different ways to support it—for example, this morning I was at the Inclusive Technology Prize competition. Clever people are coming up with ways to improve access in people’s everyday lives to the sorts of things—

[Debbie Abrahams]

Will the Minister give way?

[Justin Tomlinson]

Honestly, I would like to, but I cannot.

The amount of money spent on disabilities actually increased by £2 billion over the last Parliament, and DLA and PIP are uprated in line with inflation. Access to Work was also mentioned in the debate, and numbers increased to 35,500 last year, which is up 4,000. It is demand-led. We are always looking to promote that, which is where the Disability Confident campaign comes in, in particular by highlighting Access to Work to small businesses, which provide 45% of private sector jobs and are not always aware of things. I know from meeting the Federation of Small Businesses that that is felt to be important.

I hear the concerns about sanctions, which were expressed by more than one Member. They are a last resort and we are looking continually at how they are operating. Even the Oakley review stated that sanctions were

“a key element of the mutual obligation that underpins both the effectiveness and fairness of the social security system”,

and we accepted 17 of its recommendations to improve the process. I am happy to provide details on those 17 points.

[Debbie Abrahams]

rose—

[Justin Tomlinson]

I know that the hon. Lady wishes to come in, but time is tight.

On the point about George, universal credit will help, in that different disabilities can have different impacts from week to week. That would therefore allow somebody to maintain a certain income, and where they work extra, they have an income on that. We will be publishing them the mortality stats—I know the hon. Lady is keen to see them soon; we would all like to see them as soon as possible.

The hon. Member for Bridgend (Mrs Moon) kindly made her points in a debate two weeks ago and has agreed to meet with me on Thursday, with Parkinson’s UK and the Motor Neurone Disease Association. I am grateful for that. It will be an opportunity to discuss all the points made today. With regards to terminally ill people, we are processing things within six days and 99% are being awarded. I understand the points made about the DS1500 form. GPs are not comfortable doing it. We are talking to the Department of Health about that, so we can expand on that from the meeting.

My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) again took a reasoned and proactive approach. A lot of stakeholders echo the words that were used—[Interruption.] The hon. Lady should not panic; I am coming to that.

I understand what the hon. Member for Torfaen (Nick Thomas-Symonds) was saying about the frustration, but I am afraid that this happens with every single Budget, whoever the Government are. There is always uncertainty before the Budget. I am no different to anyone else present—we are not the Chancellor. What I do know, however, is what underpins his reform. We will continue to support disabled and vulnerable people. We are providing a strong welfare net for those in need and we will always ensure that work pays. The hon. Gentleman is a strong voice and I would be keen to continue to work with him, in particular on issues arising from surgeries or personal experience.

My hon. Friend the Member for North Devon (Peter Heaton-Jones) and I have shared experience of employing people with mental health conditions. The Government have spent £42 million on a series of pilots that provide group work, telephone support and face-to-face individual support. In the Budget earlier this year, we put in for direct purchase of support, to bring it about much quicker. Through the Access to Work scheme, that can provide help for people within work, and there is a 92% success rate.

17:55

Motion lapsed, and sitting adjourned without Question put (Standing Order No. 10(14)).

Written Statements

Tuesday 30th June 2015 Written Statements

Tuesday 30 June 2015

Hatfield Colliery Partnership Limited

Tuesday 30th June 2015 Written Statements

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

I want to update the House on matters concerning Hatfield Colliery Partnership Ltd (HCPL).

The previous Minister of State for Business, Enterprise and Energy, my right hon. Friend the Member for West Suffolk (Matthew Hancock), informed Parliament on 7 January 2015 that the Government have provided HCPL with a short-term commercial loan of £8 million to avert the company’s imminent insolvency at that time. The intention was to provide time for HMG to secure the appropriate legal basis for longer-term support which would allow HCPL to continue operating until 2016.

In May 2015, the Government announced they had agreed to provide HCPL with a longer-term, repayable grant of up to £20 million to enable the colliery to continue operating until its planned closure in August 2016. This support was state aid for which Government have secured approval from the European Commission, a strict condition of which was that the mine does not remain open beyond August 2016.

The directors managed closure plan assumed that replacement contracts from June 2015 onwards would be secured for all their coal output at pricing similar to what had been achieved before. In June 2015 the directors of HCPL approached the Government to advise that the current UK demand for coal was weak with UK power companies already largely fully stocked for 2015.

Since being advised of this position, the Government have done all they can to assist the directors of Hatfield, including reiterating their earlier commitment to provide up to £20 million towards the costs covered by the state aid approval to help the company achieve an orderly and safe closure.

Despite this the directors have concluded it is not economically viable to continue mining and so took the decision to stop coal production on 30 June 2015.

Our priority now is to support the workforce and to close the mine safely.

I understand this is a very difficult time for the individuals affected. The Jobcentre Plus rapid response service will be available to help support Hatfield’s workers into new employment, and to arrange re-training where needed.

[HCWS70]

UK Justice and Home Affairs Opt-in

Tuesday 30th June 2015 Written Statements

[The Minister for Small Business, Industry and Enterprise (Anna Soubry)]

I wish to inform the House that the UK has opted in to a proposal from the European Commission for a regulation protecting against the effects of the extra-territorial application of legislation adopted by a third country.



The proposed regulation consolidates existing EU legislation (regulation (EC) No. 2271/96 and its subsequent amendments); it does not contain any new and/or substantive material and does not change the existing measure in substance. It can therefore be supported.

Although the proposal does not cite a legal base in title V of Part 3 of the treaty on the functioning of the European Union, the Government consider that there are Justice and Home Affairs obligations in Articles 4 and 6 of the draft EU regulation. Article 4 prevents certain judgments from outside the EU being recognised and enforced within the EU. Article 6 provides that the Brussels I (recast) regulation applies to proceedings brought under that article to recover damages.

These JHA obligations triggered the UK’s opt-in. The Government communicated their decision to the president of the Council on 15 May.

[HCWS67]

Summer Finance Bill 2015

Tuesday 30th June 2015 Written Statements

[The Financial Secretary to the Treasury (Mr David Gauke)]

The summer Finance Bill 2015 will be published on 15 July. Explanatory notes on the Bill will be available in the Vote Office and the Printed Paper Office and placed in the Libraries of both Houses on that day. Copies of the explanatory notes will be available on gov.uk.

[HCWS72]

Environment Council

Tuesday 30th June 2015 Written Statements

[The Secretary of State for Energy and Climate Change (Amber Rudd)]

My hon. Friend the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rory Stewart) and I attended the EU Environment Council in Luxembourg on 15 June. Dr Aileen McLeod, Scottish Minister for Environment, Climate Change and Land Reform also attended.

Ministers held a policy debate on the national emissions ceilings directive. The UK expressed support for the Commission’s ambition to halve the number of premature deaths caused by air pollution. Other member states expressed similar support. My hon. Friend the Under-Secretary, however, noted proposed 2030 targets needed to be realistic given uncertainty around some of the assumptions underpinning them. The UK supported the deletion of methane from the Council’s text. Regarding other pollutants, the UK was among other member states that raised concerns about specific targets including ammonia, nitrous oxides and particulate matter. Some suggested the 2030 targets should be indicative while most called for firm binding targets.

The Commission welcomed the broad support for the headline health improvement target and reiterated that it was open to addressing specific national concerns about the 2030 targets, but strongly opposed the suggestion for indicative targets. The Commission were hopeful that a first reading agreement would be possible.

Ministers expressed views on the road to the United Nations framework convention on climate change, 21st conference of the parties in Paris this year (UNFCCC CoP 21). The Commission and some member states raised the importance of further outreach to allies, the legal form, agreeing a five-year cycle of review of mitigation commitments and a long-term goal, developing a finance package and moving towards parity between mitigation and adaptation elements of the deal. I emphasised the importance of ensuring the EU had flexibility to negotiate on both adaptation and finance, and pursuit of a robust review process both to ensure the adequacy of the agreement and public confidence. All member states called for more parties to present their mitigation pledges, or intended nationally determined contributions (INDCs), as quickly as possible. Some member states indicated concern regarding specific dates or numbers within a long-term goal and that parity between mitigation and adaptation would create false expectations.

The presidency concluded that draft Council conclusions would be prepared shortly for adoption at the additional Environment Council on 18 September.

Under any other business the presidency and Commission noted the successful negotiation of a provisional agreement in the European Parliament on the EU emissions trading system (EU ETS) market stability reserve decision, a first step in putting the carbon market back on track. The Council noted information provided by the Commission on recent international meetings, on the European fund for strategic investments and by Portugal on the Lisbon charter on drinking water. Luxembourg as the in-coming presidency presented its priorities.

Over lunch, Ministers discussed further detail on the preparations for the Paris summit.

[HCWS68]

Agriculture and Fisheries Council

Tuesday 30th June 2015 Written Statements

[The Minister of State, Department for Environment, Food and Rural Affairs (George Eustice)]

I represented the UK at The Eu Agriculture And Fisheries Council on 16 June in Luxembourg. Aileen McLeod MSP was also present.

Organic production and labelling of organic products

The Council discussed the presidency’s latest compromise text on the organic proposal with some member states continuing to call for further changes. On the issue of the presence of non-authorised substances on organic produce, Belgium and a few other member states argued for the ability to apply a strict decertification threshold to all produce. However, I supported the presidency’s text, with some minor modifications proposed by Germany, so that those member states that already use thresholds could continue to do so but for a limited time period. This means that the UK will not be bound by the need to apply a specific decertification threshold and by the end of 2020 this will be the approach that applies across the whole of the EU. Belgium, Bulgaria, Slovakia and the Czech Republic, all of whom agreed with the threshold, voted against the proposal. Denmark also voted against it as it disagreed with the move away from mandatory annual inspections to a risk-based approach. I, along with the remaining member states, voted in favour of the proposal which secured a general approach. Trilogues will begin after the summer, once the European Parliament reaches its first reading position.

Fishing opportunities

The Commission introduced its policy statement on setting fishing opportunities in 2016, which was generally welcomed by all member states. Commissioner Vella emphasised the good progress made towards reaching the maximum sustainable yield (MSY) targets under the reformed common fisheries policy. I agreed that we should continue to build on this, aiming to reach MSY by 2016 wherever possible. However, exceptions may be necessary, including the need to minimise discards of by-catch. Some member states, particularly those fishing in the Mediterranean and Black sea, argued for a gradual transition to MSY, with a final deadline of 2020. I also stressed the importance of the demersal landing obligation, including the need to adjust catch limits for those species covered next year, and the need to progress multi-annual management plans for the North sea and western waters.

Any other business items

Country of Origin Labelling

The Commission presented its reports on possible mandatory country of origin labelling for a range of foods including dairy and certain meats. The Commission concluded that consumer interest was not strong enough to justify the likely extra costs. I, along with France, Italy and several other member states, stressed that the issue required further consideration, especially for milk and dairy products. Luxembourg, Poland and Ireland, however, stated that they were not in favour of further discussion as the Commission’s reports highlighted that the costs outweighed the benefits.

Animal Health

The presidency confirmed that a final position on the animal health regulation had been reached following trilogue discussions. I congratulated the presidency on reaching agreement on the proposal but explained that we had been unable to fully support it, specifically the areas where delegated acts will be used to define technical detail such as the list of diseases to which the regulation applies. This was an important point of principle because the list is a technical issue rather than a political one, which should be determined by member states experts.

Russian import restrictions on fishing sector

Estonia provided an update on the unjustified export ban on all fish products originating from Estonia and Latvia that was imposed by Russia on 4 June, following a recent Russian official audit on their control systems. It called on the Commission to raise the issue in meetings with Russia and also to change the rules to allow for increased carrying over of 2015 fisheries quotas into 2016 and urgent assistance under the European maritime and fisheries fund (EMFF). I, along with Finland, Poland, France and Lithuania, supported Estonia and Latvia, arguing that it was crucial to maintain unity in the face of unjustified trade restrictions from Russia, that current actions were clearly disproportionate and that we needed to stand up to such aggression. The Commission stated that it would endeavour to do all it could to ease the impacts of the ban, including supporting the sector from the EMFF and considering the option of carrying over 2015 fishing quotas into 2016 on the basis of scientific advice.

Outcome of the Visegrad meeting

Slovenia presented the outcome of a recent meeting of the Visegrad Agriculture Ministers and those Ministers from Bulgaria, Romania and Slovenia at which they discussed trading practices in the food supply chain, Forest Europe and CAP simplification. Several member states intervened to support the concerns about unfair trading practices in the food chain which the Commission stressed it was an issue it would look at further.

Extension of eligibility period of expenditure for 2007-13 Rural Development

The Commission confirmed that it would not be extending the eligibility for 2007-13 rural development expenditure for an additional six months, despite further calls from Romania and several other members states to do so. The Commission explained that it had not been possible due to a lack of legal provisions and limited financial and political flexibility.

Extension of eligibility period of expenditure under the European Fisheries Fund

Similarly to the item on rural development expenditure, the Commission also confirmed that it would not be extending the eligibility period for 2007-13 fisheries funding. Instead, it would look at existing flexibilities within the current legislation to assist member states.

International Year of Plant Health 2020

The presidency reported back from the food and agriculture organisation conference on 9 June, which had approved the initiative to declare 2020 the international year of plant health.

[HCWS71]

EPSCO

Tuesday 30th June 2015 Written Statements

[The Minister for Employment (Priti Patel)]

The Employment, Social Policy, Health and Consumer Affairs Council took place on 18 June 2015 in Luxembourg. Lord Freud, Minister for welfare reform, represented the UK.

There was a policy debate on the European semester 2015. As part of the discussion, the Council sought approval of draft Council recommendations on the national reform programmes 2015 to each member state; sought endorsement of the opinions of the Employment Committee (EMCO) and the Social Protection Committee (SPC) for the assessment of the 2015 country-specific. Most Ministers welcomed the streamlined process and outlined their acceptance for their respective CSRs and endorsed the EMCO report on employment performance monitor and benchmarks. Lord Freud highlighted the progress made domestically on issues such as childcare and skills.

The Council agreed a general approach on the proposals for a Council decision on guidelines for the employment policies of the member states.

The Council adopted draft Council conclusions on European Court of Auditors’ special report No. 3/2015 “EU Youth Guarantee: first steps taken, but implementation risk ahead”; and draft Council conclusions on “Equal income opportunities for women and men: Closing the gender gap on pensions”.

The Council received progress reports on the proposal for a directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures; and the proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. On women on boards in particular, the Commission hoped for a general approach at the October EPSCO Council in order for the file to be adopted by the end of the year.

Under any other business, the Latvian presidency informed the Council on current legislative proposals, and outcomes of the conferences organised by the Latvian presidency. The Commission provided information on the national Roma integration strategy—annual implementation report; and the report on the functioning of the transitional arrangements on free movement of workers from Croatia and accompanying Commission staff working document. The Luxembourg delegation provided information on the work programme of the incoming presidency, stating that it intended to make progress on the platform on undeclared work and the anti-discrimination directive and wanted to focus on inclusive growth. It also wanted to explore the challenges arising from technological developments in the workplace and the skills needed for young people to successfully enter the labour market.

[HCWS69]

House of Lords

Tuesday 30th June 2015 Lords Chamber

Tuesday, 30 June 2015.

14:30

Prayers—read by the Lord Bishop of St Albans.

Oaths and Affirmations

Tuesday 30th June 2015 Lords Chamber

14:36

Lord Tordoff took the oath, and signed an undertaking to abide by the Code of Conduct.

Eurostar: Passengers with Pets

Tuesday 30th June 2015 Lords Chamber

Question

14:36

Asked by

[Baroness Sharples]

To ask Her Majesty’s Government what discussions they have had with Eurostar about allowing passengers to travel with pets.

[Lord Gardiner of Kimble (Con)]

My Lords, Defra has not had any recent discussions with Eurostar on this issue. Government does not impose any obligation on transport companies to carry pet animals; it is a commercial decision on the part of those companies as to whether they offer this service to their customers. Eurostar does offer carriage to recognised assistance dogs, and works closely with the Animal and Plant Health Agency to make sure that all the relevant import requirements are met.

[Baroness Sharples (Con)]

My Lords, passports for pets has been 100% successful, has it not? I was involved in that from the beginning, with my noble friend Lord Soulsby. Why, oh why, will Eurostar not take pets? You can take your dog on the sleeper to Scotland, and all the ferries take dogs, so why not the Eurostar?

[Lord Gardiner of Kimble]

My Lords, as I say, this is a matter on which commercial companies make their own decisions. I looked at Eurostar’s website, and it is conscious of and concerned about safety in particular, although it is very keen to help with assistance dogs. I acknowledge the part my noble friend played in passports for pets. We now have an EU pet travel scheme, which last year carried over 170,000 dogs, cats and ferrets.

[Lord Snape (Lab)]

My Lords, if it is possible to take a pet dog through the Channel Tunnel using the euroshuttle trains, why is it not possible to take them on Eurostar? Is the Minister aware that Eurostar is the only train operating company that forbids the carriage of pets? Finally, it will not do to say, “It’s a commercial decision”. Surely, in an area such as this the Government ought to be making representations to the company concerned.

[Lord Gardiner of Kimble]

My Lords, I would be very surprised if Eurostar is not listening now and understanding the exchange we are having. In point of fact, today, carriers have to be approved by the Animal and Plant Health Agency, which requires the necessary facilities to be in place to check every pet travelling with its owner for compliance with the pet travel rules. However, I of course hope that Eurostar is listening.

[The Countess of Mar (CB)]

My Lords, are Her Majesty’s Government happy that van-loads of puppies should be imported from eastern European countries with apparently fake vaccination and worming documents? If they are not, what are they doing about it?

[Lord Gardiner of Kimble]

My Lords, we will not tolerate any illegal passage, whether under the pet scheme or under the Balai directive for sale or rehoming. I think that the noble Countess may have in mind the recent report from the Dogs Trust which resulted in the Chief Veterinary Officer writing to authorities in Lithuania and Hungary, among other countries, reminding them of their duty to ensure that pet passports are completed correctly and that the welfare of dogs intended for sale is safeguarded.

[Lord Anderson of Swansea (Lab)]

My Lords, now that the Government have either sold off, or will shortly sell off, their shares in Eurostar—the family silver—why should Eurostar pay any attention to what the Government have to say?

[Lord Gardiner of Kimble]

My Lords, Eurostar is a commercial operator. As far as I know, it is trading successfully, and I am very happy if it continues to trade in the private sector.

[Baroness Parminter (LD)]

My Lords, given the increase in pet travel, can the Minister say how many spot checks the Association of Port Health Authorities has undertaken in the last year to ensure that the pets coming in are only those that comply with the regulations?

[Lord Gardiner of Kimble]

My Lords, all carriers are audited by the Animal and Plant Health Agency and the results show that they are doing a good job. Last year, only 0.9% of those checked through the audit process were found to be non-compliant with the entry rules. If there are any further details, I will be in touch with the noble Baroness.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, will the Minister accept my assurance that he should be careful when dealing with the issue of ferrets? We had a ferret called Rikki-Tikki-Tavi, which belonged to my son, and she enjoyed trouser legs. It is very important that people take care. A former colleague of mine called Derek Hatton started a ferret appreciation society in Wigan. I had to warn him that I would turn up with said ferret, and that he had to beware of her interest in going up trouser legs.

[Lord Gardiner of Kimble]

The noble Baroness has given us a splendid reason why one should be extremely cautious of ferrets. Last year 68 ferrets came in under the pet scheme, and I very much hope that everyone has taken note of what the noble Baroness said about trousers.

[Baroness Ludford (LD)]

My Lords, at the risk of bringing this down to the boringly serious, perhaps I may ask about Eurostar. There are supposed to be direct trains from Marseille and Lyons but everybody has to get off at Lille with all their baggage—and presumably their pets, if they have them—to go through passport and baggage checks, which takes about two hours. As we are trying to resist further runways at airports, should we not be doing everything we can to foster direct rail travel from the continent to the UK? When is that problem going to be solved?

[Lord Gardiner of Kimble]

My Lords, we are trying to ensure that all the requirements of the pet scheme are adhered to, because we do not wish to see the arrival of any diseases. That is why our requirements are as exacting as they are, and, as a result, we have remained rabies-free for all these years. Of course, direct travel is part of the modern way of life, and certainly of contacts within Europe. However, as far as the Question is concerned, Eurostar has made its commercial decision, and that is up to it.

[Lord Grantchester (Lab)]

My Lords, in June 2014 the BBC made a programme called “The Dog Factory”, highlighting the problems experienced by people buying puppies from unscrupulous breeders in the Republic of Ireland. Can the Minister update the House on enforcement measures between the United Kingdom and the Republic of Ireland, and can he confirm that the situation was rectified in the changes made to the pet travel scheme on 29 December 2014?

[Lord Gardiner of Kimble]

My Lords, we take very seriously the illegal movement of puppies from farms, wherever they may be. Ireland has recently passed its own legislation relating to the welfare of dogs, and I am very happy to write to the noble Lord, and place a copy in the Library, so that the update that I think he would like to have is available to him.

NHS: Whistleblowing

Tuesday 30th June 2015 Lords Chamber

Question

14:44

Asked by

[Lord Desai]

To ask Her Majesty’s Government what is their policy on whistleblowing in the National Health Service.

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, the Government are committed to improving openness in the NHS and ensuring that whistleblowers are considered an asset and receive proper support. The Freedom to Speak Up report sets out principles and actions to help create a culture change in the NHS. It calls for local accountability, with system regulators providing national oversight and guidance. We will publish our consultation response on a package of measures arising from the review and next steps shortly.

[Lord Desai (Lab)]

I thank the noble Lord for that Answer, but is he aware that there is considerable anxiety among junior doctors, especially among those from a black or ethnic-minority background, that their career prospects may be harmed or they may even find their contract terminated if they are whistleblowers? Will he promise to take a look into that problem?

[Lord Prior of Brampton]

The noble Lord makes a very important point. There are many junior doctors from BME backgrounds who do indeed feel that it is difficult to raise concerns. One recommendation in Sir Robert Francis’s report is that every NHS organisation should have a local freedom to speak up guardian, which I hope will help. But whatever we do to change the law or codes from the GMC and others, it will not replace the need to have an open, transparent and learning culture in all NHS organisations.

[Baroness Walmsley (LD)]

My Lords, would it not be more likely that such discrimination as mentioned by the noble Lord, Lord Desai, would be stamped out if there were more black and ethnic minority members of staff at senior levels in the NHS? Is he aware that the proportion in London NHS trusts of those from a BME background is only 8%, compared to 45% in the general population and 41% among NHS staff?

[Lord Prior of Brampton]

The noble Baroness has probably read The “Snowy White Peaks” of the NHS, which sets out very clearly for all to see the really shocking lack of representation of people from BME backgrounds at senior levels of the NHS. This is an absolute priority. NHS England has appointed Yvonne Coghill to look at all the racial inequality issues, and she and NHS England have my full support in their endeavours.

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as having two family members who work in the NHS. Further to the answer that he has given, will the Minister reflect on the fact that many trusts have contracts in which staff are warned that if they bring the trust into disrepute, they are likely to face disciplinary action? This has a stifling effect on whistleblowing and people raising issues of legitimate public concern with the media. Will he comment on that practice and what is going to be done about it?

[Lord Prior of Brampton]

In Robert Francis’s report, Freedom to Speak Up, he specifically mentions—I think it is in principle 13, from recollection—that there should be no such clauses in NHS contracts unless it can be demonstrated that there is indeed a true public interest. In any severance package in which there is a gagging clause of any kind, CQC is entitled to inspect those agreements during its inspections.

[Baroness Wall of New Barnet (Lab)]

My Lords, the duty of candour has made a big difference in hospitals to staff owning up if there is a difficulty or they have made a mistake in any part of their service. Does the Minister accept that there is a relationship between that and whistleblowing and with the guardians that are in existence in hospitals, such as in my own in Milton Keynes, where they are designated by the people in the department and so are trustworthy in the sense of how they are elected or selected? Does the Minister not agree that the duty of candour is making a difference to the whole culture of the health service being open and honest?

[Lord Prior of Brampton]

The noble Baroness is absolutely right. The duty of candour, which puts an obligation on organisations to show candour, is making a difference. I congratulate the GMC and the NMC, which have spelled out clearly in their codes that the professional duty of candour is equally important.

[Baroness Masham of Ilton (CB)]

My Lords, if one was going to whistleblow, who would one contact?

[Lord Prior of Brampton]

There are a number of organisations that the noble Baroness might wish to contact, but most important is to raise the matter first in the local organisation. All organisations should have their own whistleblowing procedures, and that is the right way to raise concerns. If any individual finds that not to be satisfactory, the right way to proceed is through the Care Quality Commission, which has a dedicated hotline in its service centre in Newcastle.

[Baroness Brinton (LD)]

My Lords, which takes priority: duty of candour or an employee’s contract with their NHS trust where they are gagged?

[Lord Prior of Brampton]

The duty of candour should clearly take precedence. It should be seen in the context of an agenda to improve patient safety in hospitals; if we are not open about our mistakes, we will not learn from them.

[Lord McFall of Alcluith (Lab)]

My Lords, the experience of whistleblowers in the NHS is not for the faint-hearted, with lip service paid to internal hotlines. To ensure the maximum protection for genuine whistleblowers with no retribution whatever, is it not time that a legal duty of care towards them is imposed on NHS trusts?

[Lord Prior of Brampton]

The Government have taken a lot of action to help protect whistleblowers. I think that there is a limit to the law in this regard and the changing culture is more important. The Small Business, Enterprise and Employment Act 2015 places an obligation on NHS employers not to discriminate against people who have blown the whistle or raised concerns. I believe strongly that the law has a role to play in this but that we need a fundamental change of culture in the NHS.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord rightly expects a fundamental change of culture among NHS bodies, but does he agree that one way in which that could be helped would be if Ministers welcomed criticism from chief executives and leaders of those bodies of unrealistic expectation on the part of Ministers and of there being too few resources? Does he agree that such leaders are stamped on for making their views known, which is simply not conducive to encouraging openness in their own organisations?

[Lord Prior of Brampton]

The noble Lord makes a good point. If one looks back at the history of Mid-Staffordshire, one sees clear evidence that the priorities of that organisation were too skewed towards hitting financial targets and meeting other extraneous objectives such as becoming a foundation trust. The message to all NHS organisations should be that patient safety and quality of care come first.

Gaza Strip: Rafah Crossing

Tuesday 30th June 2015 Lords Chamber

Question

14:52

Asked by

[Lord Hylton]

To ask Her Majesty’s Government whether they intend to call for the stationing of UN military observers in the Gaza Strip and the creation of a UN agency to oversee the safe passage of materials essential for reconstruction and access through the Rafah Crossing.

[The Earl of Courtown (Con)]

My Lords, the immediate priority is for the Israelis and Palestinians to agree a long-term, durable ceasefire for Gaza that prevents a return to conflict. In the mean time, we are providing support to the UN-brokered reconstruction mechanism which is facilitating the import of construction materials into Gaza and encouraging Egypt to show maximum flexibility on opening the Rafah crossing.

[Lord Hylton (CB)]

My Lords, is it not time that rather more imagination was used with regard to Gaza? Does the Minister agree that independent military advisers would prevent the endless arguments that we have had in recent years? Similarly, impartial supervision of incoming construction materials and their end uses would speed up reconstruction and reduce the harmful effects of the current blockade. Is it not true that the Rafah crossing is essential for urgent medical cases and, much more widely, for access to the outside world for the people of Gaza?

[The Earl of Courtown]

My Lords, I carefully note what the noble Lord has said, but we hope that the Israelis and Palestinians will agree to this durable ceasefire for Gaza which will prevent a return to conflict. In the mean time, we will continue to support the UN through its various mechanisms. That includes the UN special envoy on the Gaza reconstruction mechanism, which is facilitating the import of construction materials into Gaza. The noble Lord also mentioned the Rafah crossing. It is important that those areas are opened so that the conditions in Gaza can be improved.

[Baroness Warsi (Con)]

My Lords, what is Her Majesty’s Government’s view on the United Nations Human Rights Council report on potential war crimes during the conflict in Gaza last year? Does the Minister accept that accountability in previous conflicts is likely to assist in preventing future conflicts? In the light of that, how does he now view the Foreign Secretary’s statement in July last year when the United Kingdom abstained on the setting-up of this report by saying that it would,

“complicate the process by introducing unnecessary new mechanisms”?

[The Earl of Courtown]

The noble Baroness is quite right concerning accountability: there must be a robust process of accountability given the heavy civilian death toll. That includes acts committed by Hamas and other militant groups too. We are pressing Israel to demonstrate accountability for its actions during this conflict. The noble Baroness also mentioned war crimes. Both sides of the conflict have put themselves into a position where perhaps war crimes have taken place. We of course need to keep a careful watch on this matter.

[Lord Turnberg (Lab)]

My Lords, is the noble Earl aware that while Egypt is busily destroying homes on its border with Gaza to try to prevent the smuggling of arms to Hamas, Israel is allowing through the Erez crossing more than 500 trucks—with 15,000 tonnes of goods, including medical aid, benzene and building materials—every day? Is he further aware that while Egypt has stopped the passage of anyone through the crossing into Egypt, 1,200 people a day are coming across into Israel for medical care or business purposes? Should we be pressing Egypt to do the same?

[The Earl of Courtown]

The noble Lord makes a good point about approaches to the problems in this area. We are concerned by the restrictions at the Rafah crossing and are urging the Egyptians to show maximum flexibility in reopening it. We are also calling on Israel to fulfil its obligation by lifting its restrictions in order to ease the suffering of ordinary Palestinians and to allow the Gaza economy to grow.

[Lord Wallace of Saltaire (LD)]

My Lords, we have already seen Fatah lose control of Gaza to Hamas, and we now see signs that Hamas is threatened by more radical groups within Gaza which might, indeed, include supporters of IS. Given the cycle of violence between Israel and Gaza—and it is a cycle of violence, with both sides playing roles in it—do we not need something more urgent and imaginative to avoid what would be a disaster for the already poor relations between Israel and both entities of Palestine?

[The Earl of Courtown]

The noble Lord makes a good point. The humanitarian situation in Gaza is deeply concerning, so we are urging key donors to disburse the Cairo pledges. We are encouraging the Palestinian Authority, as the noble Lord said, to engage more in Gaza and to move forwards on reconciliation. We are also continuing to press Israel to do more on exports, power, movements and access. As I said earlier, we are also urging Egypt to show more flexibility at the Rafah crossing.

[Baroness Morgan of Ely (Lab)]

My Lords, as of April this year, of the $3.5 billion promised by donors for the reconstruction of Gaza, only 26% of the money has been released. Not one of the 19,000 destroyed homes has been rebuilt. Can the Minister explain what pressure the Government are bringing to bear on the donors to release the promised funds, and can he confirm whether the UK has honoured its commitments to Gaza on this subject?

[The Earl of Courtown]

My Lords, the noble Baroness refers to the Cairo pledges. The United Kingdom has honoured 80% of its pledges and has 20% outstanding. That will be spent over the next financial year and will concentrate on job creation, getting people into work, which we all know will help their economy. As for the other countries and their pledges, pressure is being put on them to spend more money in that area.

[Lord Ashdown of Norton-sub-Hamdon (LD)]

My Lords—

[Lord Davies of Stamford (Lab)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, we have just had a spokesman from the Labour Benches ask a question, so if we are taking turns, it would normally be the turn of the Lib Dem Benches.

[Lord Ashdown of Norton-sub-Hamdon]

My Lords, I am most grateful. I think I heard the Minister say that “perhaps” war crimes have been committed. We cannot leave it as “perhaps” war crimes have been committed. Either they have or they have not, and surely Her Majesty’s Government and others should now be taking steps to ensure that they understand whether or not that is the case.

[The Earl of Courtown]

At the particular point when answering that question, I could not find the notes in my folder. As I understand it, war crimes have been committed.

Childcare

Tuesday 30th June 2015 Lords Chamber

Question

15:00

Asked by

[Baroness Jones of Whitchurch]

To ask Her Majesty’s Government what steps they are taking to ensure the effective monitoring of childcare places by local authorities.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, the department’s statutory guidance is clear that local authorities should report annually to elected council members on how they are meeting this duty and make the report available and accessible to parents. We know that the childcare market is thriving. The latest figures just published show that 99% of four year-olds and 94% of three year-olds are accessing the Government’s free childcare offer.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for that reply. He will have seen the recent Family and Childcare Trust report entitled Access Denied. It highlights a huge disparity in childcare places across England. For example, 49 local authorities have a shortage of free places for two year-olds in deprived areas, and while some local authorities are proactively managing the shortfall, others are not even bothering to collect the statistics, so the offer and the quality vary considerably from place to place. How can we be sure that future expenditure will be targeted at the families who would benefit the most from this money when we seem to be faced with a lack of nursery places in the most deprived areas?

[Lord Nash]

The noble Baroness is quite right to say that the recent report is concerning—and we are concerned. Local authorities of course must publish certain information, but only to a limited extent, so the new Bill will go further to ensure that we have better information. I can assure her that we are very focused on deprived areas, and indeed there has been a substantial increase in full daycare places in those areas over the past five years.

[Lord Laming (CB)]

My Lords, following on from the question of the noble Baroness, does the Minister agree that this requires much more than putting a roof over the head of any child who has had a terrible start in life? It requires a robust and effective care plan to be devised for each child in order to help them overcome their difficulties. We have only a very few years in which to get that into operation.

[Lord Nash]

I agree entirely with the noble Lord, who is very experienced in this area. We all know that these are the most important years in a child’s life, but I am encouraged that of the providers who have been inspected under the early years inspection framework, which is a more rigorous one, we now have some 85% of them being found to be good or outstanding, up from 69% five years ago.

[Baroness Pinnock (LD)]

My Lords, does the Minister agree that the problems of undercapacity in the childcare sector will not be resolved unless hourly rates for the free places are substantially increased? The hourly rate is dependent on the vagaries of the early years funding element in the revenue support grant to local authorities. We need to address both concerns if the rates for free places are going to be increased, as well as problems around capacity in the childcare sector if the increase to 15 hours a week is to be provided.

[Lord Nash]

The noble Baroness is quite right to be concerned about these points; that is why we have a funding review and a task force, and will be entering into a consultation. However, we have to strike a balance between value for money and quality.

[Baroness Massey of Darwen (Lab)]

My Lords, the Minister will be aware of the Select Committee report on affordable childcare. The report indicates that many parents find the provision of the current childcare system difficult and complex. What would the Minister advise a parent to do when they are seeking high-quality childcare for their child?

[Lord Nash]

The system can sometimes be complex for parents; that is why we are conducting this review. However, holiday care and after-school childcare have expanded substantially in the last few years, and it is important that we continue this flexibility.

[Lord Sutherland of Houndwood (CB)]

My Lords, the Bill before the House could well expand educational expenditure in this area to over £6 billion annually. What steps are the Government taking to be sure that this money is well spent, and that it benefits those most in need in terms of increasing their educational opportunities?

[Lord Nash]

We will be looking at this closely in the coming review. We have of course been extremely focused on providing for those most in need through the early years pupil premium, the pupil premium, universal free school meals, free childcare for 15 hours for two year-olds, and of course expanding the three and four year-old offer from 12 hours to 15 hours.

[Baroness Andrews (Lab)]

My Lords, has the Minister seen the devastating report that came out earlier this week from the Delegated Powers Select Committee? If he has, what is his response to its conclusions that the absence of any detail in the Bill and the inappropriate delegations of considerable significant powers make it practically impossible for this House to have a meaningful debate on it? Does he not think that he owes it to the House to enable us to do our job in terms of the proper scrutiny of a very important Bill that we would all like to support?

[Lord Nash]

The noble Baroness is quite right; I have seen that report, and I am very grateful for it. We will have the opportunity to debate it in great detail tomorrow in Committee, when I will be saying more about that. We will be considering the report extremely carefully and making any necessary appropriate amendments.

[The Earl of Listowel (CB)]

My Lords, is the Minister aware of the decline in numbers of the highly regarded nursery schools attached to primary schools? Is he looking at how those numbers can be increased in order to develop capacity in high-quality early years provision?

[Lord Nash]

I am not entirely sure that the noble Earl is right about declining numbers; I will clarify that for him. I think that provision has in fact been increasing, and we have been making every effort to expand that high-quality provision. We know that it is of the highest quality and tends to have higher-quality staff. We have reduced the bureaucracy to enable primary schools to open nurseries, and we have now allowed free school applicants to apply to open nurseries attached to their primary places. We have been working with a number of schools that are already doing this to learn from the practice so that we can share that practice with other primary schools that want to open nursery provision.

Bread and Flour Regulations (Folic Acid) Bill [HL]

Tuesday 30th June 2015 Lords Chamber

First Reading

15:07

A Bill to amend the Bread and Flour Regulations 1998 to require flour to be fortified with folic acid.

The Bill was introduced by Lord Rooker, read a first time and ordered to be printed.

Psychoactive Substances Bill [HL]

Tuesday 30th June 2015 Lords Chamber

Committee (2nd Day)

15:08

Relevant documents: 1st Report from the Delegated Powers Committee, 2nd Report from the Constitution Committee

Clause 3: Exempted substances

Amendment 15

Moved by

[Lord Norton of Louth]

15: Clause 3, page 2, line 9, leave out “or vary”

[Lord Norton of Louth (Con)]

My Lords, Clause 3(2)(a) permits the Secretary of State by regulation to amend Schedule 1 in order to add or vary any description of substance, while Clause 3(2)(b) permits the Secretary of State by regulation to remove any description of substance added under paragraph (a). I appreciate that any regulation made under this provision has to be by statutory instrument, subject to affirmative resolution. I appreciate that paragraph (b), which, on the face of it, appears to be a Henry VIII power, is limited by the fact that the Minister can seek to utilise it only to remove a substance that the Minister has added under paragraph (a). A Minister cannot seek to remove a substance that is exempted under the measure as enacted.

However, I have a concern about the provision under paragraph (a) to vary the description of any substance. This concern is shared by the Constitution Committee of your Lordships’ House, and I declare an interest as a member of that committee. In its report published at the beginning of last week, the committee draws attention to the fact that the power to vary any description of substance could presumably be employed to narrow the description of such substances, thereby expanding the range of substances brought within the ambit of the Bill’s provisions.

The power to seek to vary the description of substance is subject to it being exercised by a statutory instrument but, given the breadth of the power and the absence of any definition of what is meant by varying a description of substance, that may be deemed an inadequate safeguard. Exercising the power by statutory instrument may be necessary but it may not be sufficient.

This is compounded by the fact that, as the Constitution Committee notes, the power to add, remove or vary the description of substances is not constrained by any explicit statement of the purpose or purposes for which the power may be exercised. Any constraint would have to be inferred from the scheme of the Bill but that may be difficult given that, as the committee notes,

“the Bill adopts an ostensibly neutral conception of what should constitute a (non-exempted) psychoactive substance”.

There is no notion of harm embodied explicitly in the Bill, so one cannot adumbrate clearly the range of substances upon which its provisions have effect. Given the wide power conferred by paragraph (a) to vary any description of substance, some amendment to the clause to make clear the meaning of vary would seem appropriate, along with a statement of the purpose or purposes for which the power may be exercised; in short, making it clear what it is and when it would be appropriate to use it.

If the Minister were to indicate that the Government would be prepared to consider amending the Bill along those lines, that would allay concerns about the broad and undefined powers given by this clause. Without such an assurance, the prudent course would be to remove altogether the provision to vary any description of substance. That would leave the Minister with the capacity to add by regulation and to remove by regulation anything added. That would offer at least some clarity in a way that we do not have at the moment. One either defines what is meant by varying a description of substance or one removes the term from the Bill. The amendment, by providing for removal, is designed to concentrate the Minister’s mind. I beg to move.

[Baroness Hamwee (LD)]

My Lords, my noble friend and I have Amendments 20, 21, 47 and 48 in this group. First, I welcome the introduction of this issue in Committee by the noble Lord, Lord Norton of Louth, which, as he said, was considered by the Constitution Committee. We are lucky to have committees which manage to just about keep ahead of the game in looking at legislation and helping the rest of the House in raising such issues. It is a very important point.

My amendments are in two pairs and both regard the regulations. One of each pair provides that when the Secretary of State consults before making regulations, as well as consulting those whom she considers to be appropriate, she should specifically consult the Advisory Council on the Misuse of Drugs both with regard to exempted substances under Clause 3 and excepting certain actions in regard to offences under Clause 10. The second amendment in each pair provides that she must also make a report to Parliament on the consultation. I have added that assuming that that is what would happen but I seek the Minister’s confirmation.

A number of people commenting on this Bill have said that the ACMD seems to have been sidelined when it should be upfront and the centre of what we are doing. I hope that this small point—it is not a small issue, but a small insertion—is something that the Minister and the Secretary of State would be glad to confirm as proper to be in the Bill.

15:15

[Lord Howarth of Newport (Lab)]

My Lords, we should be grateful to the noble Lord, Lord Norton, and to the noble Baroness for drawing our attention to these points. The Delegated Powers Committee and the Constitution Committee of your Lordships’ House had first done so, and it is unsatisfactory that there is so little clarity about the power to vary. We ought always to aim—certainly in this context—for as much legal certainty as it is possible to create.

I am glad that the noble Baroness, Lady Hamwee, has tabled amendments in this group that would amend Clause 10. This clause, which provides powers for the Secretary of State to create exceptions to offences, seems to be quite extraordinarily open-ended. I am rather surprised that the Constitution Committee did not draw attention to that as well. It leaves the Secretary of State free to retire from the field—to alter the specification of offences in all kinds of ways, subject only to the need to consult and the need for affirmative regulations. I submit that that is not a satisfactory way for the Government to legislate. Clause 10, if not Clause 3, does seem to create Henry VIII powers.

There is a broader constitutional point, which I think my noble friend Lady Bakewell made at Second Reading, when she noted that our normal constitutional practice—our normal tradition in this country—is to leave citizens free to do things unless they are specifically forbidden. The tenor of the Bill is to make everything forbidden, unless it is accepted in the field of the use of psychoactive substances. The House should be careful in permitting that kind of exception to constitutional tradition and practice. The policy had better work; it needs to be justified in its practice, because it is a somewhat objectionable principle.

The noble Baroness, Lady Hamwee, has tabled an amendment to require the Secretary of State to consult the Advisory Council on the Misuse of Drugs to report before exercising these different powers. It would be helpful if the Minister would clear up for us what consultation Ministers and their officials had with the Advisory Council on the Misuse of Drugs in the preparation of this report. It is, after all, the statutory duty of the ACMD to keep under review the situation in the United Kingdom in respect of drugs. However, we have been led to understand, possibly erroneously, that the first time that the Home Secretary sought the advice of the ACMD in drawing up this legislation was on 26 May, when she sent a letter asking for its advice on how to achieve better forensic services and to establish a comprehensive scientific approach to psychoactivity for evidential purposes. That was only two days before the Bill was laid before Parliament. It would appear, as the noble Baroness suggested, that the ACMD has been sidelined in the preliminaries to the legislative process.

It is by no means the first time that the advice of the ACMD has been rejected by Ministers of various Governments. Its recommendations in respect of the classification of magic mushrooms, cannabis, MDMA, khat and now of nitrous oxide have all been rejected by the Government. It was not always the case that the recommendations of the ACMD were so routinely ignored. Back in the 1980s, when we faced the crisis of mounting levels of heroin addiction and the spread of HIV and of AIDS, the ACMD’s advice was taken, to the great benefit of improved policy.

When the UK Drug Policy Commission chaired by Dame Ruth Runciman reported in 2000, and again when it published An Analysis of UK Drug Policy in 2007, it warned of the lack of research underpinning policy development, and that policymakers,

“operate partially blind when choosing effective measures”.

It would appear that that may still be the case in 2015. The recommendations of the Runciman commission were dismissed, as were the recommendations of the Global Commission on Drug Policy dismissed by the Home Office in 2011, as were, in 2012, the recommendations of the Home Affairs Select Committee that a royal commission should be established. However, policy should be made not on a basis of political expediency, but in response to evidence. It should be made not on a basis of anxiety about what the tabloids might say but on the basis of the advice of independent experts.

Professor Nutt, the chairman of the ACMD, was sacked essentially for telling the truth about the relative dangers of alcohol and tobacco vis-à-vis cannabis and ecstasy. Mephedrone was classified before the Government had received the advice of the ACMD, but following a huge campaign by the Sun newspaper and an endless series of “meow meow” stories, most of which turned out to be false when the facts were properly established. There were many resignations from the ACMD at that period. People in the front line of enforcement—the noble Lord, Lord Paddick, may be able to tell us something about this, if he chooses to do so—found that the vacillations and vicissitudes of policy made life very difficult for police officers in the front line of enforcement in Brixton or elsewhere.

Therefore, what advice does the Minister follow? What does he see as the role of expert advisers, and to what extent has the ACMD been consulted in this context? Certainly, I hope that he will answer the questions articulated by the noble Lord, Lord Norton.

[Baroness Hamwee]

My Lords, as we are in Committee, I would like to ask the Minister a question which I told the Bill team I would ask him, but which I forgot to include in my previous remarks. Why do the offences clauses, up to and including Clause 10, not receive a mention in the Home Office’s human rights memorandum, except a reference in the summary at the start of the memorandum? One would have expected that, having created new offences, they would have deserved some attention in that document.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I make a very short intervention simply to support this group of amendments ably moved by the noble Lord, Lord Norton, and in particular to support the plea of my noble friend Lady Hamwee for a better explanation vis-a-vis the advisory council—a point made eloquently by the noble Lord, Lord Howarth of Newport. When I read the Bill, I was astonished to find that the advisory council had been sidelined to the extent that it had. If it is to be sidelined in future, this is an extremely important change.

Speaking for myself, I will be looking very carefully at what the Minister says in reply to the previous speeches made on Amendment 47 because, if he is not careful, he might find another plethora of amendments being tabled at later stages to restore the advisory council to its rightful role, which it has discharged with distinction in my view since the 1971 Act. This is not an insignificant moment for me. If the Minister can persuade the Committee that these are simply incidental circumstances indicating that the advisory council has been put to one side for the temporary purposes of this Bill, that is one thing. However, if this is a systematic attempt to reduce its significance in future policy-making in this important area, I think noble Lords will want to return to this during later stages of the Bill.

[Lord Blencathra (Con)]

My Lords, I will make just a brief point on the amendment in the name of the noble Baroness, Lady Hamwee. I would be surprised and appalled if the advisory committee was not one of the consultees in the Bill. But I am not sure it is necessary to actually mention it. The Secretary of State is under an obligation to consult such persons as appropriate, and clearly, the advisory committee is one of the top ones on the list to be consulted. If the Home Office failed to do so, in my experience we would be in court on a judicial review within minutes and the Secretary of State would lose the case for failing to consult an appropriate body.

It is one thing having a duty to consult, but that is quite different from being under an obligation to carry out all the advice the committee can give. It is perfectly legitimate for the Government to consult the advisory committee but then reject some of its advice after due consideration. If it is not given due consideration, again, that is a case for judicial review. While I agree that the committee must be consulted, I am not sure it is really necessary to put that in the Bill. Perhaps the Minister will clarify that in his response.

[Lord Rosser (Lab)]

We very much support the points that have been made by the noble Lord, Lord Norton, and the Constitution Committee, and we await with interest the Minister’s response to them. I thank the Minister for his letter of 15 June, which followed up on the Second Reading debate, and in particular on questions that I and three of my noble friends had asked about the role of the Advisory Council on the Misuse of Drugs in relation to the Bill.

We are a party to Amendment 20, spoken to by the noble Baroness, Lady Hamwee, which relates to Clause 3 on “Exempted substances”. Clause 3(3) says that before any regulations to amend Schedule 1 are made,

“the Secretary of State must consult such persons as the Secretary of State considers appropriate”.

The purpose of the amendment is to add the reference to the Advisory Council on the Misuse of Drugs. I note the point that the noble Lord, Lord Blencathra, has just made but one could interpret the Bill as saying that there is no statutory requirement for the Secretary of State to consult anyone because it is open to them to conclude that they consider no person appropriate, despite the importance or significance of amending Schedule 1 and getting any such decision right. No doubt the Minister will comment on the point that in reality, under Clause 3(3) the Secretary of State could not get away with consulting nobody at all and that it obliges them to consult at least somebody. That is the point that the noble Lord, Lord Blencathra, made and I would like to hear a very specific response, on the record, as to exactly what Clause 3(3) means in that regard.

Referring to another point made by the noble Lord, Lord Blencathra, the Minister’s letter of 15 June 2015 states:

“The ACMD is required by statute to be consulted before any amendment by Order in Council is made to Schedule 2 to the Misuse of Drugs Act 1971”.

The principle of the ACMD being required by statute to be consulted is thus not new, and I do not see how it can be argued that somehow it is unnecessary to put it in the Bill, given that the Minister’s own letter refers to that already being a requirement. If the Minister is going to oppose Amendment 20, I hope he will explain the reasons for doing so in some detail. In his letter he says that the Government are,

“ready to consider carefully any recommendations the ACMD may have about other aspects of the Bill”.

Has a response been received from the ACMD? Has it said whether or not it wishes to be consulted as per the terms of Amendment 20, to which we are a party? What difficulties does the Minister believe there would be if the ACMD had to be consulted as per this amendment, and who exactly might the “such persons” referred to actually be?

Finally, to come back to the point I made earlier and which the noble Lord, Lord Blencathra, has already made, does the Minister think it right that the Secretary of State could apparently make a change to Schedule 1 without taking expert advice? That is what Clause 3(3) apparently enables the Secretary of State to do, unless the Minister is going to tell me that I have misunderstood it.

15:30

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to my noble friend Lord Norton of Louth for introducing this amendment. Perhaps I may structure my response by first putting on the record some important comments which might be helpful to the House and then, at the conclusion of those remarks, seeking to address some specific issues and questions which have been raised.

The Constitution Committee drew to the attention of the House the fact that the power to vary Schedule 1 could be exercised so that something which, on the enactment of Schedule 1, is an exempted substance ceases to be exempted. A similar point was raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The Constitution Committee also commented on the absence of a statement of purpose or purposes for which the Clause 3 power may be exercised. At this point, I would put that in the context of assuring my noble friend that the Constitution Committee has concentrated our minds. I think that the report was published last week, on 18 June, and we will be considering it carefully. We will have a full response to the committee ahead of Report.

As we indicated in our delegated powers memorandum, the list of exempted substances needs to be robust and kept up to date so as not to unintentionally criminalise the production, supply and so on of psychoactive substances that may legitimately be consumed for their psychoactive effect. Following on from one of our debates last week, I can assure the noble Baroness, Lady Hamwee, that the regulation-making power indeed enables substances to be added to Schedule 1. To take an example, alcohol is both a substance and a description of a substance. It may also be necessary to vary an existing entry: for example, if the regulations mentioned in paragraphs 2 to 5 of the schedule relating to medicinal products were revoked and replaced with new regulations. While we expect the list in Schedule 1 to remain reasonably stable, the regulation-making power affords the necessary flexibility to make required changes relatively speedily should it be appropriate to do so.

We have deliberately drafted this regulation-making power so that it will not be possible to exercise it to remove any description of a substance that is contained in Schedule 1 on enactment. But I would be wary of further narrowing the scope of the regulation-making power, as Amendment 15 seeks to do. I stress that the power is subject to the affirmative procedure, so any regulations would need to be debated and approved by both Houses. I will of course reflect on this debate before responding formally to both the Constitution Committee’s views and the Delegated Powers Committee’s report.

Amendments 20 and 47 would require the Home Secretary to consult the Advisory Council on the Misuse of Drugs before making regulations under Clauses 3 and 10. The noble Lord, Lord Rosser, spoke in support of these amendments and has added his name to Amendment 20. I begin by saying that the Home Office continues to greatly value the scientific advice provided by the Advisory Council on the Misuse of Drugs. Following its advice over the last few years, we have controlled more than 500 new psychoactive substances under the Misuse of Drugs Act 1971. The advisory council will continue to have its central role in assessing the harms of specific drugs, including new psychoactive substances, for control under the 1971 Act and in providing advice to Ministers.

In drafting Clauses 3 and 10, the Government included a requirement for the Home Secretary to consult with such persons as she considered appropriate prior to making any regulations: for example, regulatory bodies and relevant experts. This was to account for the fact that the Government may need to consider different types of substances and so wanted to tailor their consultations to organisations with specific expertise. For example, if it was thought necessary to change the description of food, we would want to consult the Food Standards Agency. In this example, the advisory council would not necessarily have much to contribute to any consultation. None the less, as noble Lords will have seen from the Explanatory Notes to the Bill, the ACMD was included as an example of the type of consultee the Government had in mind. That being the case, I am happy to take away Amendments 20 and 47 to consider the matter further in advance of Report.

The Government are, again, supportive of the principle behind Amendments 21 and 48, but I question whether we need to specify such a requirement in the Bill. There are many examples on the statute book of requirements to consult before a Minister exercises regulation or order-making powers. It is taken as read that the outcome of any consultation would be published —a point mentioned by the noble Lord, Lord Kirkwood —alongside the making of the relevant regulations or order. We do not need to clutter the statute book with express duties of this kind. There is a joint working protocol between the advisory council and Home Office, which commits us to open and transparent dealings. The advisory council routinely publishes its advice to the Home Secretary and I fully expect it to continue to do so. We will encourage other bodies responding to any consultation on these regulations to do likewise.

Any regulations made under Clauses 3 and 10 will be made by the affirmative resolution procedure. It is standard practice to publish an explanatory statement alongside draft regulations. Such a statement would, among other things, summarise the outcome of the consultation. Therefore, one way or another, Members of both Houses will be able to consider the consultation responses in conjunction with the draft regulations to be made under Clauses 3 or 10. In the light of this explanation, and on the understanding that I will give a sympathetic consideration to Amendments 20 and 47, I hope that my noble friend Lord Norton would feel able to withdraw his amendment.

I now turn to some of the specific points raised. On Clause 3(3), I agree with the noble Lord, Lord Rosser, that it is difficult to conceive of circumstances where the Home Secretary would reach the conclusion that there were no appropriate persons to consult. We have had some excellent work by the Delegated Powers Scrutiny Committee and the Constitution Committee on the Bill. Were there not to be an adequate and full demonstration of the experts who had been consulted, that particular measure—which might be before the House on an affirmative basis—would clearly be in for a very difficult ride. In reality of course, the Government would not seek to do that.

The noble Lord, Lord Kirkwood, made the point that he was very concerned about whether this was some kind of attempt to downgrade or sideline the ACMD, which I understand. The council does of course have a statutory duty under the Misuse of Drugs Act, which is very important, and it was consulted. It has been looking at the area of psychoactive substances. I cannot remember the exact date of that but I am happy to get details. One of its recommendations was that the Government ought to consider and explore a legislative response to this. I do not say this in order to unearth a previous relationship, but it was Norman Baker, the Liberal Democrat Home Office Minister, who decided to put this out to an expert panel.

To make a serious point, the purpose there was not to deal with a question on the science, which is just one component of this. Another part of it is then to say, “How do we deal with the science?”. Whereas we have an eminent group of scientists on the ACMD, the expert panel is particularly constituted so that it has expertise on enforcement at local authority level; forensics; prosecution, from the Crown Prosecution Service; medical science, of course, with three members of the ACMD on the expert panel; social sciences; an international dimension, with drug addiction; and, very importantly, education and prevention, with representatives from Mentor UK and DrugScope. So it was constituted to address a different stage in the problem, the issue having been identified earlier.

I want to deal with the points that have been made, although I shall provide a fuller response to the Constitution Committee. My noble friend Lord Norton of Louth made a particular reference to the term “vary”. It might be helpful if I add some words to the record at this stage on that point. “Vary” is given its natural meaning in the Bill: the ability to amend individual definitions within Schedule 1. It does not stretch to changing the principle of an exemption, nor to removing it. Schedule 1 exempts groups of substances; the ability to vary the definitions is important to future-proof the legislation against regulatory changes, which may change how particular substances are legally defined. It may be that a definition in the Bill is varied in the way in which it narrows its scope. However, this would be the case only if the scope of the underlying regulation was also narrowed. A similar approach has been taken in Ireland—without wanting to reopen that particular canard at this stage. Since the passing of the Criminal Justice (Psychoactive Substances) Act 2010 in Ireland, they have not needed to make any amendments to their exemption list. We therefore anticipate a stable list.

The noble Baroness, Lady Hamwee, mentioned a point that she had raised with officials and which we had tagged under the Clause 10 stand part debate. These offences are modelled closely on those provided by the Misuse of Drugs Act 1971, which has been in force for 45 years. Although it was enacted before the Human Rights Act 1998, the compatibility of the 1971 Act with the human rights convention has been tried and tested thoroughly in both domestic courts and the European Court of Human Rights. By following closely the existing law and statute, we have endeavoured to draft offences that we believe are compliant with the ECHR. In view of this, and to avoid restating old arguments in the memorandum that are already well accepted by the courts, the decision was taken that the ECHR compliance of these offences did not require rehearsing in the memorandum. Instead, the memorandum focuses on those issues that may properly be described as new or significant. We look forward to any observations on these and other provisions from the Joint Committee on Human Rights; in the usual way, a full response to the committee’s report will be possible once it has been received.

With those assurances, which I reiterate are on important issues which we undertake to consider very carefully and come back to on Report, I hope that the noble Lord will withdraw his amendment.

[Lord Howarth of Newport]

I listened carefully to what the Minister said about the Government's consultation with the Advisory Council on the Misuse of Drugs on the subject of psychoactive substances, and I think that I heard him tell the Committee that the ACMD had urged the Government to do something about psychoactive substances. An expert panel, which is not the same as the ACMD, was then set up. It would be helpful if the Minister could tell the House, in response to the points that I put to him in my contribution, what dealings the Home Office had with the ACMD on this legislation on psychoactive substances, following receipt of the advice from the expert panel, up until the letter that the Home Secretary sent to the ACMD on 26 May. Given that the ACMD has a statutory duty to keep under review the situation of the UK in regard to drugs, surely it would have been appropriate—and I should have thought a statutory requirement—to seek its views as to the wisdom of the policy that the expert panel recommended and on which the Government were proceeding to legislate. What consultations took place on this specific Bill?

15:44

[Lord Bates]

I think I have tried to deal with that important point. Effectively, it is a discussion about which came first, the chicken or the egg. On the exact phraseology—I am just trying to read and, being a simple man, I can do only one thing at a time; it is difficult to multitask at the Dispatch Box—my understanding was that the advisory committee used a particular phrase, which was not as strong as the noble Lord perhaps suggested. However, it was an invitation to the Government to explore legislation, which they then chose to do through a multidisciplinary panel along the lines I outlined earlier.

Clearly, there will be a point—once we have come back and published the Bill—where the Home Secretary, quite rightly, wants to explore further. The letter of 26 May to which the noble Lord referred, and which I do not have in front of me, sought the scientific advice of the ACMD on how we use forensics to determine what is a psychoactive substance. It was a particular task, which I hope demonstrates that there is a healthy relationship between the Home Office and the ACMD, which is not of course uncritical. It has a very important role to play. The fact that the chair and other members of that committee formed part of the group is important.

Let me just read out a point that has been highlighted for me. However, since October 2014, when the Government published their response to the expert panel’s report and Ministers wrote to the ACMD, we have been open and transparent about our plans to develop the blanket-ban approach, now encapsulated in the Bill. The Home Secretary has written again to the ACMD and we look forward to receiving its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. I think that is broadly what I said the letter was about and what the response was. If there is any difference, I will write to the noble Lord.

In the mean time, I would be grateful if my noble friend would consider withdrawing his amendment.

[Baroness Hamwee]

My Lords, it is appropriate to mention that, as well as the two committees to which the Minister referred, the Secondary Legislation Scrutiny Committee also takes an interest in consultation on regulations. I was a member of it for quite a long time and we frequently asked officials to go back to different departments because an Explanatory Memorandum gave very little information about the consultation that had been undertaken and the responses to it. That probably got into my DNA so I did not even realise it was there in prompting me to raise this point. I would not threaten the Minister with the Secondary Legislation Scrutiny Committee but it will certainly be on top of this if the Explanatory Memorandum is inadequate in this respect.

[Lord Norton of Louth]

My Lords, I am grateful to my noble friend the Minister. I shall look forward to further discussions with him, and I know the Constitution Committee will be very interested in his response to its report.

I listened with great interest to what my noble friend said. On defining the term “to vary” he offered a description but not necessarily a compelling argument for why a description should not be in the Bill. I appreciate that the power to vary will be subject to the affirmative resolution, but that places a burden on the House to establish criteria for assessment when the instrument is brought forward, whereas it may provide better discipline for the criteria to be established in the Bill. We can say no when the instrument is brought forward, but there may be a case for it not to be brought forward in the first place to make it clear to the Government what should and should not be permissible. So I am not necessarily persuaded that the Government should be given the essentially unrestricted power in Clause 3. One can have a little too much flexibility.

However, I look forward to discussing this further with my noble friend and, in the mean time, beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 to 22 not moved.

Clause 3 agreed.

Amendment 23

Moved by

[Lord Paddick]

23: After Clause 3, insert the following new Clause—
“Possession of controlled drugs
(1) The Misuse of Drugs Act 1971 is amended as follows.
(2) Omit section 5(1) and (2).
(3) After section 5 insert—
“5A Measures in respect of possession of controlled drugs for personal use
(1) Where a person is detained on suspicion of having committed an arrestable offence and is found to be in possession of a controlled drug falling within Schedule 2 (Class A drugs) in circumstances which do not constitute an offence under section 3 (restriction of importation and exportation of controlled drugs) or section 4 (restriction of production and supply of controlled drugs), a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme.
(2) The Secretary of State shall by regulations define “drug treatment programme” and “drug awareness programme” for the purposes of this Act.
(3) Regulations made under this section must be made by statutory instrument.
(4) A statutory instrument under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, both Houses of Parliament.””

[Lord Paddick (LD)]

My Lords, I shall speak also to Amendment 24. These amendments are tabled in my name and that of my noble friend Lady Hamwee.

First, there has been a bit of confusion in the editing of the amendment. Subsection (1) of proposed new Section 5A should refer to all drugs falling within Schedule 2, not, as suggested in the brackets, “Class A drugs”. Schedule 2 refers to Class A, Class B and Class C controlled drugs.

Amendment 23 amends the Misuse of Drugs Act by removing Section 5(1), which states that it is illegal to possess a controlled drug, and Section 5(2), which states that it is an offence to possess a controlled drug. It adds a new Section 5A to the Misuse of Drugs Act requiring those arrested for offences to be referred to a drug treatment programme or a drug awareness programme if they are found to be in possession of controlled drugs at the police station. The effect of the amendment is to bring controlled drugs, as defined by the Misuse of Drugs Act, into line with substances that are controlled by this Bill, where simple possession of psychoactive substances is not a criminal offence. This amendment would have the effect of decriminalising the possession of psychoactive substances under the Misuse of Drugs Act and is similar to Amendment 39 which is proposed by the noble Lord, Lord Howarth of Newport, and the noble Baroness, Lady Meacher.

This amendment also allows that when someone is in police custody for an offence and it becomes apparent that drugs may be behind the criminal behaviour, the person can be referred to an education programme, a drug awareness programme or a drug rehabilitation programme. It allows the Secretary of State by regulation to define a drug treatment programme and a drug awareness programme for the purposes of this Bill. Amendment 24 is simply a consequential amendment to Schedule 1.

At Second Reading, I said that making possession of drugs illegal is not a deterrent, and the Government appear to agree with me to the extent that they are not seeking to make possession of new psychoactive substances illegal under this Bill. It is claimed that proportionality is the reason for not doing so. A proportionality argument can be made for possession of controlled drugs as well. First and foremost, there are millions of people in the UK who continue to take drugs even though they are illegal. Why do they do so? One of the reasons is because the law is in disrepute as far as those it was intended to protect are concerned. Secondly, criminal sanctions do not appear to have any impact on drug use. The Home Office’s 2014 paper Drugs: International Comparators states:

“Looking across different countries, there is no apparent correlation between the ‘toughness’ of a country’s approach and the prevalence of adult drug use”.

UK drug laws appear to have failed to impact on the level of national drug use. The UK has the second-highest lifetime amphetamine and ecstasy use, the second-highest cocaine use and the fourth-highest lifetime cannabis use in Europe.

Release examined 21 jurisdictions where possession of all or some drugs had been decriminalised, and there was no increase in drug use. In the most notable example, Portugal, the Home Office notes that there has not been a lasting or significant increase in drug use there since decriminalisation in 2001. Whether simple possession of drugs is a crime or not appears to make very little difference. The Government are content not to criminalise possession of the substances covered by the Bill, some of which are—and some new substances certainly could be—far more harmful than some of the drugs covered by the Misuse of Drugs Act. For the sake of consistency, clarity and credibility, simple possession of any psychoactive substance should not be an offence. Some will be concerned about such a move, and I myself long resisted calls to legalise drugs. However, I have been convinced by the evidence from Portugal.

These amendments go on to suggest that where someone commits an offence, whether it is antisocial behaviour as a result of being intoxicated by drugs or committing an acquisitive crime to feed a drug habit, and it is found that they are in possession of a controlled drug, they may be referred to an education programme if they have been reckless in their use of drugs, or to a drug treatment programme if they are addicted. There are already well-established practices within the police of giving conditional cautions, where someone is not charged with a criminal offence provided that they comply with the conditions imposed on them. That conditional caution mechanism for the substantive offence for which they have been arrested could provide the incentive for those who are willing to change their behaviour. This is, in essence, the Portuguese model, as I understand it—an approach that focuses on dissuasion.

This amendment has significant other benefits. As with substances covered by the Bill, it would deprive police officers of the power to stop and search people they suspect of simple possession of controlled drugs. At Second Reading, I pointed out the impossible position that the police would be put in if the Bill were implemented without a change in the Misuse of Drugs Act. The police could not possibly be able to tell whether the psychoactive substance they suspected the person to be in possession of was covered by the Bill or by the Misuse of Drugs Act, one for which they have a power to stop and search, the other for which they do not. This amendment deals with that difficulty.

Stop and search is a very contentious tool that the police have used disproportionately against black and minority ethnic young men in particular. In 56% of cases of stop and search by the police in London in 2013-14, the reason the officer gave for searching was “for drugs”. Admittedly, some of those stop and searches may have been for suspected drug dealing, but in my own professional experience they would have been very few. Last week there was discussion in the media about the growth of knife crime in the capital, and it has been reported that the Commissioner of Police for the Metropolis has suggested that stop and search may have to increase again as a result. In the same 2013-14 period in London, only 9% of stop and search was targeted on offensive weapons. Freed from the burden of stop and search for simple drugs possession, the police could focus on more serious crime such as drug dealing and knife crime.

As the noble Lord, Lord Howarth of Newport, alluded, I have some experience of de facto decriminalisation of cannabis in the London Borough of Lambeth, where I was the police commander. In 2001, for a year, the then Commissioner of Police, now the noble Lord, Lord Stevens of Kirkwhelpington, agreed a 12-month pilot scheme where no one would be arrested for simple possession of cannabis, subject to a few exceptions such as possession on or near school premises. The official report by the Metropolitan Police Authority into that scheme is still available on the internet. Some 83% of local people supported the scheme. There was a 19% increase in arrests for dealing in class A drugs. Contrary to press reports, there were fewer drug tourists, fewer incidents of drugs in schools and a saving of police time, which was diverted into tackling more serious crime that was of more concern to local people. The pilot was so successful that the procedure to allow officers to seize and warn for simple possession of cannabis was extended nationally. It also prompted the then Home Secretary to reclassify cannabis as a class C drug—a decision overturned by a new Labour leader a few years later. No wonder the public have no faith in drugs classification.

16:00

Since then, the police procedure nationally for dealing with small amounts of cannabis for personal use has evolved. In addition to having the cannabis seized and a warning given, those caught are given a fixed penalty for disorder—a specific penalty notice provided by statutory instrument, which was presumably agreed to by this House. Simple possession of cannabis has effectively been decriminalised with the agreement of Parliament.

The wording of my amendment may not be perfect, and I have since learned about the FPN approach, which may be a better way forward. However, the principle is sound and it is this: we should have a consistent approach to all psychoactive substances by decriminalising simple possession. Even if the Government do not feel that they can go that far, at least simple possession of drugs only as harmful as or less harmful than cannabis—a class B drug under the Misuse of Drugs Act 1971—should be decriminalised. I beg to move.

[Baroness Meacher (CB)]

My Lords, we will return to the subject of decriminalising possession of all drugs a little later in relation to other amendments, and I will speak then. I applaud the noble Lord, Lord Paddick, for this amendment. This is an incredibly important issue and I want to say a few words about Portugal.

The crucial issue that I think the Government have to consider is whether it is more important to reduce social use. For example, if an alcohol policy results in rather more people having a glass of wine or beer on a Saturday night, does that really matter? I do not think so. What really matters is addiction, and a policy that reduces addiction is, for me, a good policy.

As I understand it from all the research—of which there has been a lot—into the Portuguese decriminalisation of possession and use of all drugs, there has been a bit of an increase in social use in Portugal, but under the scheme fewer young people are addicted to any drug. As I understand it, the right-wing political parties were against decriminalisation when it was introduced, but Dr Goulão, the wonderful doctor who spearheaded this reform—he is terrific; I know him very well and he is splendid—is thrilled that all political parties in Portugal now support the policy. It is true that Portugal is going through terrible economic issues, so I am not sure exactly what is happening to the policy right now, but it has been proved that a policy of decriminalisation wins the support of all political parties once it is seen in action, and it is all about addiction.

My question to the House and to the Minister is: why are fewer young people in Portugal now addicted to all drugs, not just one? I believe that it is to do with the psychology of young people. They like to be cool. When I was at school I used to break the school rules. I thought it was a terrific thing to do, although I do not think that I broke the law. If all young people have to do is get a spliff to break the law, they think that that is cool. In Portugal it is not cool. Why is that? It is because if you are referred to a dissuasion commission, you see a psychiatrist, a social worker or a lawyer who determines whether you are addicted. You are then referred for treatment. That is not cool; it is a mental health treatment, and it is not cool to have a mental health problem.

I believe that Governments of all political persuasions should think about the psychology of young people when they think about drugs policy, because it will only be when we get inside the minds of young people that we might come up with a policy that makes sense and works.

[Lord Blencathra]

My Lords, as someone from the highlands of Scotland, I like to be cool as well, but I suspect that it is a slightly different interpretation.

I was not quick enough on my feet to ask this of the noble Lord, Lord Paddick, before he sat down. I readily acknowledge his great practical expertise in these matters and I acknowledge my own ignorance. Is there a definition, in statute or in case law, of how much is a “small amount” of drugs for personal use? One needs to know how much a person could get away with by claiming, “This is just for my personal use, guv”. Or is it rather like the cross-channel ferries, where people can come back with 10,000 cases of cigarettes and lots of booze and claim that they are a heavy drinker and smoker, and possibly get away with it?

The noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, quote favourably from the Portuguese experiment, and there are some debatable results there. I would also refer them to the trendiest, most socialist and liberal country in the EU—Sweden. Sweden has a zero-tolerance policy on drugs and, admittedly, a big back-up self-harm programme behind it. Although one can quote Portugal favourably, one can also quote Sweden and its no-tolerance policy favourably. I hope that noble Lords have seen the reports from Sweden, as I have, and if I am wrong, I am happy to be reminded and amended later on.

[Lord Howarth of Newport]

My Lords, like the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, I too have been impressed and encouraged by the evidence emanating from Portugal. Just before I add a few words on the subject of Portugal, I would say to the noble Lord, Lord Blencathra, that if he looks at the incidence of drug-related deaths in Sweden, he will find that they are exceptionally high. People are ignoring these draconian policies that the Swedes do indeed operate, but not with happy consequences. One of the reasons is that criminalisation and the panoply of very severe penalties in operation in Sweden deter people from seeking treatment and help. Personally, I think that that is ill advised.

The Portuguese took another route when they faced a real crisis of drug abuse at the beginning of the century. They consulted an expert panel, which recommended the depenalisation—I think that that is perhaps the term—of small amounts of drugs for personal use. Again I say to the noble Lord, Lord Blencathra, that under the Portuguese legislation, those “small amounts” of each drug are very precisely defined, so it can be done in legislation. At the same time, they invested very significant resources in treatment, education, programmes of social reintegration and the disruption of supply. It was a coherent strategy that appears to have worked very successfully.

As an aspect of that strategy, dissuasion commissions were set up so that somebody apprehended in possession of an amount of a drug—a psychoactive substance—would have to go before the dissuasion commission. As the noble Baroness said, it consists of a clinical psychologist or psychiatrist, a social worker and a lawyer; it is a fairly formidable panel to have to face. But if you are brought before that panel, you are not charged with a criminal offence. It does have power to impose administrative sanctions but its main focus is on getting people into treatment.

The central principle of the Portuguese legislation is that drug abuse is a health issue and not a criminal issue. I would suggest to the House that the results have been most impressive. Over five years, the number of people injecting drugs halved; drug-related deaths and new HIV infections more than halved; drug use among the 15 to 24 year-old age group fell; there was no rise in use in the older age groups; very importantly, the rates of continuing use, year-on-year use as opposed to occasional use, fell below the European average; and the numbers seeking treatment doubled, while the costs to the criminal justice system plummeted. All this is documented—there is plenty of evidence to tell us about the success of the Portuguese experiment, which has been going for 15 years. As the noble Baroness noted, the global financial crisis and the extraordinary pressure on the public finances of Portugal made it difficult to persist as fully as they would have wished with the education and treatment dimensions of the strategy. None the less, they have continued with the policy, and as she said, it has become accepted right across the political spectrum. I know that Home Office representatives have visited Portugal to learn at first hand from Dr Goulão and others about how it has worked. It is puzzling and disappointing that more lessons have not been taken on board.

Amendment 23 in the name of the noble Lord, Lord Paddick, would create powers such that,

“a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme”.

“May require” is quite a prudent element in the drafting, only because—and I fully endorse the policy of encouraging people to go to such programmes and benefit from them—the scale of drug-taking is, sadly and very worryingly, large in this country. A survey of Cambridge students found that 63% had taken illicit drugs, half of them before they had reached the age of 16; 45% of them had bought drugs for their friends; and 14% said that they had at one time or another sold drugs for a profit. A survey in 2011 of people in management jobs in London found that one in 10 took illegal drugs at work or at social events associated with their work. Mostly, they used class A drugs—cocaine and ecstasy. Of course, the use of cocaine and other class A drugs can lead to serious addiction, illness and death, so we should congratulate those such as Dr Owen Bowden-Jones, one of the members of the noble Lord’s expert panel, who set up Club Drug Clinic at the Chelsea and Westminster Hospital—and other such clinics have been established across the country—which is particularly focused on helping young professionals who become addicted in this kind of way. I am simply describing the scale of the challenge we face if we seek to make drug awareness and drug treatment programmes available universally to people found in possession of drugs. It is estimated that some 350,000 children in this country have a parent who is a drug addict. I understand that one-third to one-half of those entering prison are already problem drug users. In 2010, there were 2,182 drug-related deaths. So it is a colossal challenge whatever strategy is adopted. Helping more drug users find the healthcare treatment they need will be a challenge on a large scale.

This is not a new dilemma. Back in 1924, the Government of the day established the Rolleston committee. Its recommendation to the Government certainly was that penal elements of policy were important, but it also said that addiction should be treated primarily as a disease. I would suggest that the moral imperative is not to stigmatise or to punish but to help those who are sick. We must communicate facts accurately, precisely and honestly if young people are to respond constructively, seriously and respectfully to the policy and the legislation. In 2000, Lady Runciman and her colleagues said that,

“the most dangerous message of all is the message that all drugs are equally dangerous. When young people know from their own experience that part of the message is either exaggerated or untrue, there is a serious risk that they will discount all of the rest”.

One of the difficulties with this legislation is that it fails to discriminate between the harms at different levels of psychoactive substances. I understand the problem that, with the proliferation of psychoactive substances on such a scale and at such a pace, this is a very difficult thing to do, but it remains an important objective of policy.

When the previous Labour Government were being tough on the causes of crime and sought to get more people into treatment, they found that it was not plain sailing. The Home Office identified at one point 320,000 so-called problem drug users and invited them to undergo voluntary testing in the hope that it would offer a route away from the revolving door of crime and addiction and into treatment. If I remember aright, the Home Office reallocated a very large sum of money—some £600 million; it was a PES transfer, if that is the right terminology—from the Home Office to the Department of Health and the National Treatment Agency. The Drugs Act 2005 set up the drugs intervention programme, expanding the drugs treatment and testing orders and making it compulsory to test on arrest or when an ASBO is issued so that a defendant was offered the choice of treatment or jail.

15:59

How effective was all of this? The National Audit Office reported in 2004 that there had been 18,400 DTTOs at a cost of £50 million a year but that they had had little impact: 80% of those who entered the programme were reconvicted within two years. Coercion into treatment was a problematic policy. Three-quarters of people dropped out of the programmes and only 4% of addicts left the programmes drug free. Professor Mike Hough, one of the academics who assisted the Home Office in the evaluation of the programme, said that they were making exaggerated claims about the effectiveness of their drug strategy to Ministers which were just not sustainable.

The scale is even bigger now with new psychoactive substances, and it is difficult to cure addicts and to help problem drug users. If we are going to do that, we have to invest in aftercare, housing and training programmes for them. There will be significant implications for the budgets of the police, the health service, housing, benefits and further education. What the noble Lord is proposing in his amendment is desirable in principle but we should be well aware of the difficulties that there may well be in practice.

I say again that if we were to legalise and regulate, selectively and strictly, certain drugs, it would open the way to transferring substantial funds away from policing and the criminal justice process into treatment. One dimension of the Government’s anti-drug strategy is building recovery. I would be grateful if the Minister will give his assessment of the success of the building recovery part of the strategy.

[Lord Mackay of Clashfern (Con)]

My Lords, it is important that in this Bill, it is not proposed that there should be a criminal offence of possession of psychoactive substances. In due course we shall see how that works, and it may well be that the lesson to be learned from that could have an effect on the older legislation to which the amendment refers.

As I understood the noble Lord, Paddick, he said that one of the successful police techniques is the conditional caution, which of course depends on the underlying offence—that is the power on which the conditional caution rests. It is an extremely valuable approach to this difficult problem. I agree entirely with what has been said about how difficult a problem this is. I have no doubt at all about that and I do not need to reiterate the point. The conditional caution has a degree of authority behind it to persuade the person who receives it to do what it requires him to do. That is extremely important. The difficulty I have with this amendment is that if a senior officer suggests or requires that someone should attend one of the systems as defined by the Secretary of State in a later amendment, there is not much power to ensure that that will happen.

It is a long time since I had experience as a judge in criminal cases involving drugs where possession was an issue, but I distinctly remember the sadness I felt when sentencing a lady with a young child who had been in possession of quite substantial quantities of prohibited drugs. As the sentencing judge, I had the power to invite her to subscribe to a programme as a condition of her probation, rather on the same principles as the conditional caution, except at a slightly more authoritative level. The lady was obviously very attached to her child and there was a risk that if the situation continued, she might be separated from the child by the social work authorities. I was keen, it if was possible, to help her get out of that situation. A good programme aimed at helping people out of addiction was being run in Glasgow at the time. I got her agreement to attend the programme, subject to the probation order, which, as noble Lords will know, meant that if she left the programme she had agreed to attend, there would be other possible consequences. It was to my extraordinary sadness to discover that after she had been getting on well for a few months, she suddenly left. That is one of the difficulties of a programme which has no authority to continue.

I am not good at getting into the minds of very young people, for reasons which are obvious, as the noble Baroness, Lady Meacher, would attest, but there is the question of the psychology of all this. There is also the question of a level of authority, so that the treatment becomes something a person is required to undertake in order ultimately to get out of the criminal justice system. I agree that this is an important matter, and it would be good to see how the regime set out in this Bill works. It might have a good lesson for the existing legislation.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I apologise to the Committee: I did not speak at Second Reading, but I would like to make a brief contribution at this point and to ask a question. Following up on the issue of alternatives to formal action being taken by the police in introducing people to recovery courses, I should say that I have had a good deal of experience over many years of dealing with people with drug and alcohol addictions. There is a big question mark over whether the addictive personality ever truly recovers, in the sense that people talk about recovery, because people often switch from one addiction to another, but they reach a stage at which they can maintain their addiction and lead a good life. However, it has been my experience that, before they get to that point, no one can undertake a course or programme of any sort unless they have an inherent willingness and desire to recover. One drawback, unexplained in the amendment before us, is this: what does one do with the literally very high percentage of people who will want to opt for this course because it is the soft option, but who have no intention whatever of displaying the willingness and commitment required to achieve recovery?

[Lord Cavendish of Furness (Con)]

With the leave of the House, I follow the noble Lord, Lord Brooke, in apologising for not having taken part at Second Reading. I declare an interest: I am what is called a recovering alcoholic. I am not about to fall over—it is 30 years since I last had a drink—but in keeping with what the noble Lord was saying, I regard myself as possibly still being an addicted person and therefore have to conduct my life accordingly. I endorse everything that the noble Lord says: we have to learn to take responsibility for our lives.

Getting that help means confronting some extremely ugly truths about what we have done and the effect we have had on ourselves and members of our families. That is a very hard role for the state to take on, and it has always been my view that one should rather encourage the private sector. The cost to the economy of addiction —whether to alcohol or to drugs, and in my view the two are closely related—is known almost precisely. The best outcome would be if a leading firm with good social values pioneered something that the rest of the world could piggyback on. Firms have a vested interest in their employees and their employees’ families being clean and free of drugs and alcohol, and they know what the cost is. It would be of enormous benefit, which perhaps could be reflected in some tax concessions, if the private sector were encouraged to lead on this matter.

[Lord Tunnicliffe (Lab)]

My Lords, the Opposition are not minded to support Amendment 23. I thank the noble Lord, Lord Paddick, for setting out so clearly the intention behind it, which is to decriminalise the simple possession of all drugs listed under the 1971 Act and partially replace that with a drug awareness programme. I emphasise that we believe that education and treatment have to be an essential part of the whole programme that the Government must responsibly pursue to tackle the enormous problems that drug addiction produces, but we do not believe that this is the vehicle to make such a substantial change to the 1971 Act. If the Government were minded to go down this road, surely they would first have to conduct a major programme of research and a major consultation. They may choose to do that, and I await the Minister’s response with some interest, but we are not in favour of the delay that such a research and consultation programme would lead to. The Bill mends a hole in the 1971 Act with respect to psychoactive drugs, and it should be enacted as soon as reasonably practicable in order to attack this difficult problem.

[Lord Bates]

My Lords, I thank the noble Lord, Lord Paddick, for introducing the debate on this amendment and giving us an opportunity to contemplate in broad terms these two groups of issues: one around the experience of dealing with people with drug problems and the other looking at international comparisons and alternatives, and health and education. This is something that your Lordships’ House does incredibly well: drawing on people who have had practical experience, not just in the police, as the noble Lord, Lord Paddick, has, but in adjudicating, as my noble and learned friend Lord Mackay of Clashfern has done in difficult areas. Then there were the contributions from the noble Lord, Lord Brooke of Alverthorpe, and my noble friend Lord Cavendish about their own experiences in trying to assist and work with people coming to terms with addiction. It has been a very thoughtful debate.

I am conscious that I will not be able to cover all the points, but we have a meeting with all interested Peers on 7 July in Committee Room 10A between 4 pm and 5 pm. We will announce it on the all-party Whip—or the business managers will, lest I overegg my powers. It has been set up particularly so that we can hear from Public Health England and about what is happening in education and treatment. I agree wholeheartedly with the noble Lord, Lord Tunnicliffe, that that goes very much to the heart of the wider issue we are seeking to address. The point made by the noble Lord, Lord Howarth, about updating where the Government and Public Health England are with the wider drug strategy and building recovery programmes might be usefully discussed at that meeting, along with many other issues.

16:30

Let me put some remarks on the record and then come back to some of the specific questions that have been put to me. I acknowledge that drugs policy is a particularly difficult and challenging part of public and social policy. There probably are some countries in the world that do not wrestle with the problem but not many. Certainly everybody in the West, North America, South America, and Africa, and across Europe into Asia, is wrestling with the same challenges. My noble friend Lord Blencathra made the point that we look at other countries and draw conclusions. If there was a silver bullet or something that worked universally, clearly the world, being the way it is, would have unearthed it. Indeed, the UN General Assembly special session on drugs, which meets again next year, tries to harness experience from around the world. There is also the diligent research and work of our own expert panel, as well as examples of particular cultures in particular places where programmes have worked.

In that process, we should not underestimate that people might also take a look at drugs policy in this country and suggest that, across the majority of drugs and age groups, there has been a long-term downward trend in drug use over the last decade. Among 11 to 15 year-olds, drug use has been falling since its peak in 2003. More people are recovering from their dependency now than in 2009-10. The average waiting time to access treatment is down to three days. I pay tribute to the previous Government—the noble Lord, Lord Patel, talked about this at Second Reading—for the programmes which were started then and have been continued. We should not be averse to saying that there have been examples of success in many different jurisdictions, not just in Portugal—although that is an important area that we need to look at.

The noble Lord, Lord Paddick, seeks to remove the possession offence for controlled drugs under the Misuse of Drugs Act. The Government’s position is that liberalisation, through decriminalisation of harmful drugs, is not the answer to the problems we face. This Government have no intention of decriminalising the possession of drugs. It would not eliminate the crime committed by the illicit trade, nor would it address the harms associated with drug dependence and the misery that this can cause to families and communities.

Decriminalisation fails to recognise the complexity of the problem and has insufficient regard for the harms that drugs pose to the individual. It neither addresses the risk factors which lead individuals to misuse drugs and alcohol, nor takes into account the misery, cost and lost opportunities that dependence inflicts on individuals, their families and the wider community. Preventing and reducing drug misuse is a key part of our evidence-based drugs strategy. It is a drugs strategy which produces an annual report and is ongoing across many government departments. We take a broad approach to prevention, combining universal action with targeted action for those most at risk or already misusing drugs.

Drug recovery is at the heart of our current approach, with the key aim to support people to free themselves from drug dependency for good. We have moved our focus beyond the treatment system to include factors that help people recover from drug dependency and fully integrate back into the community. Amendment 23 in the name of the noble Lord, Lord Paddick, seeks to give police and local authorities a discretion to require a person to attend a drug treatment programme or drug awareness programme. The Government strongly support local investment in approaches that help to identify drug-using offenders and direct them to treatment at the earliest possible opportunity.

There are a number of examples of this work in action. For example, we are supporting police to use the model of drug testing on arrest to ensure that individuals are identified and referred to the treatment they need. We are supporting NHS England in its rollout of a new standard model of liaison and diversion services that identify and assess those who may have mental health or substance misuse issues—a point eloquently referred to earlier in the debate. There are now 22 liaison and diversion sites set up and running, covering more than 50% of the population. We are working with local areas to identify and respond to their heroin-using population in order to grip and reduce harms caused by heroin and crack cocaine, including drug-related offending and wider social outcomes. Finally, NHS England, Public Health England and the National Offender Management Service are working together to share and develop emerging learning from the north-west prisons “through the gate” substance misuse services early adopter approach.

The police and the courts of course have discretion in the implementation of our drug laws so that an informed and proportionate approach can be taken to an individual caught in possession of controlled drugs. The police have a range of alternatives. These currently include simple cautions, conditional cautions and—in cases of cannabis possession—cannabis warnings and penalty notices for disorder. Although a criminal offence is still committed, these types of out-of-court disposals do not amount to a criminal conviction.

Following a consultation on the current out-of-court disposal framework, the Government announced in November 2014 their intention to simplify the current range of disposals into two tiers: a suspended prosecution based around a conditional caution and a new statutory community resolution. The new framework would require offenders to take action to comply with the new disposals and face meaningful consequences if they fail to do so, rather than simply accept a warning. Both tiers would allow and encourage the police to include rehabilitative measures designed to prevent reoffending, including interventions to tackle drugs misuse and to help address underlying issues that may have contributed to the offending. The new arrangements are being piloted in three police force areas before a decision is taken on whether to roll them out more widely. It is the Government’s firm view that, by delivering on national commitments set out in the drug strategy and in other programmes, and by enabling local partners to take responsibility at a local level, we will enable more individuals to become free of their dependence and contribute to society.

On the idea of giving more local power, it was the Drugs Act, referred to by the noble Lord, Lord Howarth, that sought to address the issue raised by my noble friend Lord Blencathra: what actually constitutes personal possession? The Act went into a fine line-by-line definition, a bit similar to what had happened in Portugal, which defined an amount. We then found that this was unworkable for similar types of reasons that we have found for psychoactive substances: once you put down on a bit of paper what the amount is, people naturally start to try to find a way around it. What did we come back to? We came back to saying that the police at the scene should use their own judgment and determine whether drugs are for personal use or whether a person is dealing.

That is why we come back to where we are with this measure; we have said that it is for the police to apply that judgment as to whether the person they intend to stop and search is someone who they feel is likely to be in the production, supply or import or export of psychoactive substances, and whether the substances found would contribute to that, whether they be large or small.

So that is more or less where we have come to. I am sure that the noble Lord will not come round completely to saying that the Government have arrived at something which is a little closer to his innovations in Brixton, and clearly not on the scale proposed in his amendment. However, given our commitment to hold a meeting for all interested Peers, which will provide an opportunity for ongoing discussion, I hope that he will feel able to withdraw the amendment.

[Lord Howarth of Newport]

Will the Minister help us just a little bit further, because I know the Home Office knows a good deal about what has happened in Portugal? Much earlier in his speech, he was very dismissive of the benefits of decriminalisation on the Portuguese model, as I understood him to say—that is, possession of small amounts of drugs precisely defined for personal use. How, then, does he account for the success of the Portuguese policy?

[Lord Bates]

I did not mean to be dismissive about that. The Drugs: International Comparators report, which was referenced by several noble Lords, is clear that the success in Portugal cannot be attributed to decriminalisation and dissuasion panels alone. While drug use went down and health outcomes went up, there was at the same time a significant investment in treatment, which has already been referred to. That is an important part of it. That report could have looked at some of the—albeit modest—successes which we have had in this country with our approach. What is beyond doubt is that it is not just enforcement or the law but also education and health treatment which are at the heart of our being able to deal with this problem.

[Lord Paddick]

My Lords, I thank all noble Lords who contributed to this debate and wish, if I may, to address a few of the points that were made.

The noble Lord, Lord Blencathra, asked how much constitutes personal use. If you have even a small amount of a drug but have it all in little bags, that indicates that you might be supplying it, or have possession with the intent to supply it. That is the sort of decision that a police officer has to make on the street. Whether it is to do with cannabis or any controlled drug, the decision on whether it is for personal use or possession with the intent to supply is one that is faced by officers every day.

Mention was made of the Swedish absolutely zero tolerance approach. I was not going to raise this issue again but it goes to the heart of what we are discussing. We are all on the same page as regards a lot of what the Minister has said, and what I have suggested in trying to persuade people to get treatment, or on education and so forth. However, the very big difference between us, of course, is whether or not possession is illegal.

As I say, I was not going to bring this up again, but I mentioned at Second Reading a former partner of mine, who became my best friend, who tragically died as a result of taking drugs. His mother asked me to go to the inquest, which is where I learned what had happened. He realised that he had taken an overdose of a drug called GHB. I honestly believe that, if possession of a small amount of that drug for personal use had not been illegal, he and the people that he was with would have sought medical assistance quicker. In fact, he tried to make himself sick in order to get rid of the overdose and thought that he would be okay. He fell asleep and, by the time he was found by his friends, he had obviously stopped breathing for half an hour or an hour or so. They did not seek medical treatment because his condition was to do with illegal drugs.

I know a nightclub manager in Vauxhall who tells me that in other clubs in Vauxhall partygoers who have collapsed—collapsing is what happens if you overdose on GHB—as a result of taking illegal drugs are carried out on to the street by security before an ambulance is called, which could be the difference between life and death for those people, because the nightclub owners do not want to have a reputation with the police that illegal drugs are being used in their clubs. That is why in Ireland, with the passing of a similar Bill, and in Sweden, there are so many deaths because people are taking illegal substances and therefore do not seek the medical help that they desperately need. So I hope your Lordships will forgive me but this is personal as well as professional for me.

16:45

The noble and learned Lord, Lord Mackay of Clashfern, raised the issue of authority. These people will have been arrested for a substantive offence and if they do not accept the route of treatment—which they are entitled to do; it is very difficult to force people down that route—they simply get charged with the offence for which they have been arrested. If they are found guilty, there is an opportunity for the courts to have another go as far as that is concerned.

No doubt there will be opportunities to discuss this at the meeting the Minister has referred to and to come back to it on Report. But for the moment, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Schedule 1: Exempted substances

Amendment 24 not moved.

Amendment 25

Moved by

[Baroness Meacher]

25: Schedule 1, page 34, line 7, leave out paragraph 2 and insert—
“2 All medicinal products prescribed by a doctor or sold by a licensed pharmacist.”

[Baroness Meacher]

My Lords, I will also speak to Amendments 26 and 27. I am very grateful to Rudi Fortson QC for advising me about the issues I am seeking to resolve with these three amendments.

Amendment 25 seeks to adjust Schedule 1 in order to exempt:

“All medicinal products prescribed by a doctor or sold by a licensed pharmacist”.

In the absence of this amendment, some perfectly legitimate medications prescribed by a medical practitioner may be banned under this legislation. The point here is that the exemption for “investigational medicinal products” does not encompass the supply by a GP on a named-patient basis of a particular medication. The GP will not be acting in pursuance of a clinical trial and thus will not be covered by the exemption of substances used for investigational purposes.

In the Bill no exemption is made for medical practitioners who believe it to be in the patient’s best interests to supply a psychoactive substance that is unlicensed and which does not fall within Schedule 1. The amendment seeks to overcome this problem. I can give the House an example to clarify the point. Acetylcysteine is used on a named-patient basis for cystic fibrosis, pulmonary fibrosis and renal protection. These are not trivial matters; they are very serious and it is really important that doctors are able to prescribe these substances in the future despite the passage of the Bill, which we assume will go through in some form. I hope the Minister has had an opportunity to consider this issue and, if she would find it helpful to discuss it with some experts, I have proposed a few people who would be happy to attend a meeting.

A separate issue is covered by Amendment 26. I thank the Royal College of Psychiatrists, as well as Rudi Fortson QC, for its briefing on this amendment. Here the need is to ensure that research scientists using psychoactive substances in their work to develop new medicines or progress neuroscience research do not have their work hindered by this legislation. I am sure the Government do not intend to interfere with this important sphere of research but I hope they will ensure that the final wording of the Bill achieves fully the objectives of the amendment. The royal college welcomes the Bill’s current exemptions for investigational medicinal products as defined by the Medicines for Human Use (Clinical Trials) Regulations 2004. Moreover, as the ban on psychoactive substances set out in the Bill relates only to such substances that are consumed by humans, this means that research that does not involve human consumption of a psychoactive substance— that is, pre-clinical trials—would not be banned under the Bill.

However, there are some experiments involving humans that sit outside the 2004 regulations. Some biologicals and early-stage pharmacological tools—proteins or manipulated chemical compounds—would fall outside this definition as they cannot be classified as “investigational medicinal products”. According to the Royal College of Psychiatrists, this is hugely concerning as physiological experiments on humans, for example, or studies in human neuroscience looking at issues such as attention, consciousness and memory-use drugs and amino-acids—not medicines—would therefore be illegal under the Bill, unless exempted via this amendment.

The aim of the amendment is to ensure that all research, including work using humans consuming substances for research purposes—not for fun—but not captured by the Medicines for Human Use (Clinical Trials) Regulations 2004, would remain legal and enable vital neuroscientific research to continue. Without this amendment, laboratory suppliers may be wary of supplying some requested compounds for neuroscience research because of their potential to have a psychoactive effect on humans. This could mean that vital new medicines may never get developed. I would be grateful if the Minister could confirm that she agrees that the term “investigational medicinal products”, as defined by the 2004 regulations, does not cover all research used to develop new medicines or progress neuroscience research, and therefore that this amendment really is needed to protect these crucial areas of research.

At this point, I want to mention the letter to the Home Secretary from the Academy of Medical Sciences, the British Pharmacological Society, the Royal College of Psychiatrists, the Royal Society, the Wellcome Trust and the Society of Biology. They all expressed concern about this issue. The letter welcomes my amendment but makes the point that it “goes some way towards” protecting vital research. I obviously have not managed to go all the way in my amendment. I hope that the Ministers—the noble Baroness and the noble Lord—would agree to meet the key people to make sure that the wording in the Bill really is right at the end of the day.

My final point on this issue is that the problems could of course be resolved by regulations, as indicated in Clause 10. However, this seems far too important a matter to leave to regulations, and I think that all those scientists would be very concerned if it was not in the Bill. I also think I am right in saying that a similar issue was dealt with in the Bill that became the Misuse of Drugs Act 1971. Perhaps the noble Baroness can address that issue, because at least we would therefore have consistency. Even without that point, this matter needs to be dealt with in the Bill to make sure that our research base is not interfered with.

I turn very briefly to Amendment 27, which addresses the possibility that low non-psychoactive doses of potentially psychoactive substances could and should be exempted from the scope of the Bill. How can a Government justify criminalising someone for supplying to someone else a dose of a substance when that dose in itself is not psychoactive? Can the Minister respond to this point or take it away and write to me before Report to clarify the position? The scientists are worried about this because they often use tiny amounts of a psychoactive substance and want all that to be exempted from the Bill. Again, the Minister might find it helpful to discuss this with the experts; I do not pretend to be an expert on this matter myself. I beg to move.

[Baroness Hamwee]

My Lords, we have Amendment 28 in this group. The noble Baroness has covered the issues very thoroughly, particularly with regard to her Amendment 26, so I do not want to take too long. I struggled with the issue of research, in particular as to how Schedule 1 and Clause 10 fitted together, if they fitted at all. The noble Baroness alluded to that. As she said, the reference to the regulations in Schedule 1 raises the issue of non-human use and research for purposes other than those covered in the Medicines for Human Use (Clinical Trials) Regulations—for instance, understanding neurological processes. The definition seems to link a product with clinical trials. I am no scientist, but I do not know how you get to the point of a trial without a much wider exemption than we have as the Bill stands. Like the noble Baroness, I am concerned as to whether Clause 10 may be used to make research not an offence. I do not think that would be the right way to go about this but, if it is in the Government’s mind, questions would include what is being proposed, when it will happen and what the process of that will be.

On Tuesday last week, on the first day in Committee, I mentioned the problems of undertaking research on cannabis, through my amendment on medicinal cannabis. Those problems were described by Professor Curran and Frank Warburton in the report which I mentioned then. I am not entirely confident that our amendment captures everything that needs to be captured, and although I am glad to see the amendment on the same subject in the name of noble Lords, Lord Rosser and Lord Tunnicliffe, I am not entirely convinced that theirs captures everything either—but that is why we have Committee.

The correspondence which we received was very helpful in prompting us to focus on this. The Academy of Medical Sciences, in its letter to the Home Secretary, referred to the “important tools” that scientists need. This House has a well-deserved reputation for focusing on research and ensuring that research is assisted and not hampered. It is very clear to me that we need to explore this issue further and to ensure that the Bill does not hamper, but promotes, research.

[Lord Howarth of Newport]

My Lords, very briefly, I would endorse every word that the noble Baroness, Lady Meacher, said and put a rather practical consideration to the Minister. The noble Baroness, Lady Meacher, asked for a meeting, and I am sure that Ministers will wish to hold such a meeting. However, time is somewhat against us, as we have Report in a fortnight’s time, and it would be very helpful if the Minister could assure us that that meeting will take place. I am certain the Government will not ignore these very important representations from eminent research bodies in the medical field—they are bound to take account of them. However, just as the Academy of Medical Sciences has shared its letter with noble Lords who are participating in these proceedings, it would be very helpful if the Home Secretary would share her reply with us and if we could have, before Report, an explicit amendment tabled by the Government to remedy the defects that these eminent research bodies, under the umbrella of the Academy of Medical Sciences, have drawn to our attention.

[Lord Rosser]

My Lords, we also have an amendment in this group, Amendment 49, providing for regulations under Clause 10 to give exemptions from an offence under this Bill—and from its ban—for specific medical research activity. Of course, a number of noble Lords raised concerns at Second Reading about the impact of the ban on new psychoactive substances and the creation of an offence on medical research. We do not want the Bill to inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact, and I do not believe that that is the Government’s intention.

17:00

Clause 10 would appear to provide a means to ensure that proper medical research can be exempt from the consequential effects of the ban on psychoactive substances in the Bill, and our amendment refers to appropriate regulations being laid before both Houses to achieve this goal. We need to hear from the Government how they intend to give assurance that legitimate research will not be inhibited or restricted by the terms of this Bill, and how any processes or procedures for enabling medical research to be exempt from an offence under the Bill would work in practice.

The report of the Constitution Committee refers to Clause 10 authorising the Secretary of State,

“to specify excepted acts”,

from a defence under the Bill,

“by making regulations”.

The committee stated that the House might,

“wish to consider whether it is appropriate to confer such a broad power on the Secretary of State, and in particular whether it should be unconstrained by any textual indication as to the purpose or purposes for which it may be exercised”.

Our amendment inserts a specific requirement in Clause 10 in respect of medical research activity.

The Constitution Committee also drew attention to the fact that,

“the details of the excepted-acts regime are … absent from the Bill”,

unlike the exempted-substances regime. It says:

“Whether any such regime is in fact established and, if so, on what terms are instead matters that are wholly for the Secretary of State to determine … The House may wish to consider whether it is appropriate to leave the details of the excepted-acts regime to be determined wholly through secondary legislation”.

I assume from an earlier debate that that is an issue that the Government will consider in the light of the report from the Constitution Committee.

As the noble Baroness, Lady Meacher, said, the Secretary of State has received a letter from a number of major organisations involved in, or associated with, medical and scientific research, expressing concern about the Bill’s potential unintended consequences for medical research and asking that the final draft does not pose a barrier to important scientific work, both in neuroscience and in other areas. I hope that the Minister will be prepared to show in her response that the Government will take the necessary action to address those concerns, and that we do not end up with a Bill that could be interpreted as leaving researchers open to the possibility of prosecution.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I believe that the noble Baroness, Lady Meacher, and the noble Lords, Lord Paddick and Lord Rosser, have the same ambition as the Government—to ensure that lawful medical practice and patient care, as well as bona fide research, are untouched by the provisions of this Bill.

The purpose of Schedule 1 is to list psychoactive substances exempted from the scope of the Bill. It excludes certain substances which are not the target of this legislation, and are mostly already subject to regulatory controls. Importantly, under paragraph 2, it exempts medicinal products; this is the subject of Amendment 25, as proposed by the noble Baroness, Lady Meacher. This covers those products that have marketing authorisations issued in the UK, in the EU, or such authorisation issued by the licensing authority. The current definition for medicinal products was a starting point for the Bill’s introduction and is being reviewed again by the Medicines and Healthcare Products Regulatory Agency.

We continue to test whether our objective is achieved by the schedule as currently drafted. For example, we recognise that unlicensed medicines for human use need to be taken out of scope. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. It was always our intention to remove these medicines and this activity from the scope of the Bill. In this case, we see the advantages of making provision on the face of the Bill—in Schedule 1 to the Bill—rather than in regulations made by virtue of the power in Clause 10. I confirm to the noble Baroness, Lady Meacher, that our intention is to bring forward appropriate amendments—if possible in time for Report—to ensure that the exemption for such products is properly aligned with existing medicines legislation.

Amendments 26, 28 and 49 all relate to safeguarding research into the medicinal and other legitimate uses of psychoactive substances. As I said, the Government attach a high priority to bona fide scientific research and to not putting in place unnecessary regulatory barriers that in any way impede research in the UK. We are actively ensuring, in accordance with our original intention, that any interaction between the provisions of the Bill and those conducting or supporting bona fide research into psychoactive substances is removed.

Along with the Department of Health, we are testing the need for greater latitude, over and above this exemption. As a priority, we are establishing how we best achieve this, perhaps through the drafting of further exemptions in the Bill. There could also be a case for making exceptions through regulations under Clause 10. We may well, therefore, bring forward government amendments on this issue on Report. I have listened to the concerns that have been expressed and all our further considerations will take account of the text and intent of noble Lords’ respective amendments.

Finally, the noble Baroness, Lady Meacher, has also tabled Amendment 27 in this group, which would exempt low non-psychoactive doses of psychoactive substances. My understanding is that such materials are used by forensic and other laboratories, which hold these chemical reference samples for investigative procedures. I can assure the noble Baroness that, as these substances are not supplied for human consumption, they are already outside the scope of the Bill.

I hope I have demonstrated that I have sympathy for the intention behind Amendments 25, 26, 28 and 49. We are actively looking at whether the definition of medicinal products needs to be strengthened and whether further precision is needed to safeguard legitimate research. We will also make every effort to get together with the experts; that is an excellent idea. On the understanding that we will return to these issues on Report, I trust that the noble Baroness will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, is there an issue around veterinary medicine as well as human medicine? I do not know the answer to that; it is a straight question. Is it something that needs to be looked at? The Minister is shaking her head, which suggests that one could go on producing veterinary medicines without offending under the Bill, which raises all sorts of other issues.

[Baroness Chisholm of Owlpen]

Veterinary medicines are not for human consumption, so they do not fall within the scope of the Bill.

[Baroness Hamwee]

My concern is that research in that area should not be impeded.

[Baroness Meacher]

My Lords, I am grateful to the Minister for her response, which was very positive. I was particularly pleased that she agreed that these matters should be dealt with in the Bill, which suggests agreement that they are sufficiently important for them to be dealt with there, and said that the Government will be bringing forward amendments before Report on the medicinal matter and may bring forward amendments on the research matter. I understand from the experts—the scientists—that it is important that there are amendments before Report on that issue. I hope the Minister may be able to respond immediately to that point because it will be difficult to leave this one unless we have that assurance.

On the low-dose issue, her reply was interesting because I tend to agree with her that surely these things are not for human consumption. On the other hand, the matter has been raised with me by people who know about these things, and I must express my gratitude for the willingness of Ministers to meet the experts and cover that issue and the others because they are the people who need to advise Ministers about exactly what the wording should be on all these matters. I express my gratitude, and I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 26 to 28 not moved.

Amendment 29

Moved by

[Lord Norton of Louth]

29: Schedule 1, page 34, leave out lines 25 to 29

[Lord Norton of Louth]

My Lords, my amendment would remove alcohol from the list of exempted substances in Schedule 1. The purpose of tabling the amendment is to enable the Minister to do that which he did not have time to do at Second Reading: to provide an intellectual justification for the exclusion of alcohol from the provisions of the Bill.

Alcohol has the effects listed in Clause 2(2) and as developed by the Minister in responding in Committee on Amendment 7. Why, then, is it an exempted substance? The logic of the Bill is, on the face of it, unclear. It seeks to prohibit psychoactive substances that are seen to be harmful, but it then exempts the substance that is the most harmful of all in human, social and economic terms. Alcohol misuse kills, it rips families apart, it puts strain on public services—the police and the NHS—and it has enormous economic consequences for public services and for employers in working days lost. There are at least 5,000 alcohol-related deaths a year. If one includes deaths where alcohol is causally implicated, the figure rises to some 20,000, a point made by the noble Baroness, Lady Hollins, at Second Reading.

Alcohol abuse remains the leading risk factor in deaths among men and women aged 15 to 49 in the United Kingdom. In 2012-13, there were more than 1 million hospital admissions related to alcohol consumption, and almost 300,000 were wholly attributable to alcohol consumption or classed as alcohol specific. Alcohol abuse not only harms those who drink but impacts on society as well. Heavy drinking can not only damage one’s physical and mental health but lead to assaults and leave one vulnerable to assault. There were nearly 10,000 casualties of drink-driving the UK in 2012, including 230 killed. In almost half of all violent incidents, the victim believed that the offender was under the influence of alcohol. Perhaps most remarkable of all, according to Alcohol Concern, the NHS estimates that some 9% of men and 4% of women in the UK show signs of alcohol dependence; that the cost of alcohol misuse in England is an estimated £21 billion in healthcare, crime and lost productivity; that the cost to the hard-pressed NHS is £3.5 billion; and that the cost in terms of crime is £11 billion. It is difficult to comprehend the sheer scale of the social and economic cost.

Why do we continue to tolerate heavy drinking and many city centres being awash with drunken youths on Saturday evenings, and why are we willing to excuse clearly inebriated individuals in all sorts of social settings but do not tolerate those who take other psychoactive substances? Why is one type of misuse apparently culturally acceptable, or at least tolerated, but not the other? Should we not adopt the same approach to all psychoactive substances that can produce serious personal, social and economic harm? Why do we seek to ban the manufacture and distribution of one but not the other? My noble friend may say that the answer is purely practical: that we cannot ban the production and sale of alcohol because such a ban would be unenforceable; we would be emulating the USA of the 1920s. If that is the case, let us have that on the record. Is the use of legal highs on such a scale that a ban on their production and distribution can be enforced, or, at least, is that the justification? If so, what is the evidence that such a prohibition is enforceable? What consideration has been given to the alternatives?

17:15

Why do the Government think that regulation and education are the best approach to tackling alcohol issues but not legal highs? I hold no brief for legal highs, but I hold no brief for alcohol either. I regard them all as potentially harmful substances. I would not dream of drinking alcohol. Some noble Lords may say, “You don’t know what you’re missing”. I wonder how those noble Lords would respond to someone who takes legal highs saying to them, “You don’t know what you’re missing”. Let us therefore be quite clear as to the reason why we ban one type of damaging psychoactive substance but not another. Why is alcohol in Schedule 1? What is the Government’s intellectual case for treating it as an exempted substance? I beg to move.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, I point out that if Amendment 29 is agreed, I shall not be able to call Amendment 30 by reason of pre-emption.

[Lord Brooke of Alverthorpe]

My Lords, had I spoken at Second Reading I would have supported the Government’s aims of trying to avoid the harms which arise from legal highs and to prevent them wherever possible. However, like the noble Lord, Lord Norton of Louth, I would have gone on to ask why the Government are so inconsistent in their approach. Ethyl alcohol is a psychoactive substance. There is no question whatever about that—the Government cannot disagree. It will be very interesting to hear why they believe it should be treated differently.

When one considers the differing approaches the Government take to alcohol these days, one sees the great sledge-hammer—that is the best way to describe it—that has been brought in to deal with an issue that, although worrying, is a nut compared with the boulder that is alcohol and the problems it creates for our society. The noble Lord, Lord Norton of Louth, just described those problems, so I will not repeat them. The Government should think long and hard about moving, fairly quickly, on some of their policies on alcohol if they want to carry the confidence of this House in trying to make changes of this nature. They have a responsibility deal whereby, in partnership with the drinks industry, they seek to reduce the volume of alcohol consumed in this country. They have targets, yet the Chancellor stands up in March and announces a freeze in duty on wine, beer and cider and a reduction in some other areas, including a 2% reduction in the duty on spirits.

The Government will not use pricing as a mechanism to try to discourage drinking, and the drinks industry sees that such pricing effectively discourages people from buying its products, so it lobbies the Government to reduce duties, which the Government, in turn, do. On the one hand we have the responsibility deal, with its targets that seek to reduce the consumption of alcohol, while on the other hand we have the statement made by the Chancellor. As the Government documents produced after the Budget prove, he will in fact increase the volume of alcohol that is sold, which, in turn, will increase the harms that arise for people who abuse it. So, a conflict does arise. I want to persuade the Minister to think ahead about what might be happening with alcohol and alcohol-related substances, and about whether there is a case for making a change to the schedule.

As long ago as last summer, I wrote to the noble Earl, Lord Howe, about a powdered white alcohol called Palcohol which is being marketed in the United States. Powdered alcohol has been around in Europe for quite some time. It was produced in Germany and then in Holland about seven or eight years ago but was not marketed. It is now being produced and marketed in the States. I wrote to the noble Earl to find out what the Government were doing in their conversations with the drinks industry at the responsibility deal level. The reply was:

“The Department has not discussed the import, production and sale in the United Kingdom of Palcahol and its European equivalents with partners in the Responsibility Deal”.

I also wrote to the noble Lord in the Home Office to ask,

“what assessment they have made of the decision of five states in the United States to ban the sale of Palcahol”.

He replied:

“The Government is aware of powdered alcohol from media reports and the banning of the product in five states of the United States of America. The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales”.—[Official Report, 6/1/15; col. WA 107.]

I followed that up with another Question:

“To ask Her Majesty’s Government what assessment they have made of the status under the Licensing Act 2003 or the Misuse of Drugs Act 1971 of imports from the United States or Europe of alcohol powders”.

The noble Lord, Lord Bates, told me:

“Although the Act refers to liquids and this product is sold in solid form, it is intended to be drunk as a liquid”.

I tell the Minister that he is not quite up to date with what people are doing with this powdered drink. They are not simply taking it as a liquid; it can be snorted. Admittedly it is an uncomfortable experience, I understand, but it can be snorted. More particularly, it can be baked into cakes or go into confectionary and a whole range of products that people are now contemplating using it in. The noble Lord went on to say:

“The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales, although we are aware of its sale in other countries. In the event that there is a proposal to market powdered alcohol in England and Wales, the Home Office will make a formal assessment of its legal position”.—[Official Report, 7/1/15; col. WA 223.]

I would argue that this is the day when the Government can start to look at the legal position of Palcohol and at whether they are prepared to see it come into the country. If so, how are they going to handle it? It will shortly be available on the internet and imported through the internet, because that is how it will be marketed. It is already spreading on a wide scale within the US and, as night follows day, it will come to the UK.

Therefore, I suggest that the Government go back to the Answers that they sent me. I suggest that they look at what is happening in the United States at the moment, the problems that are arising there and the reasons why some of the states have banned it. If they are not prepared to accept in totality the amendment moved by the noble Lord, Lord Norton of Louth, which I support—although I suspect that the Government will not—I also suggest that they look at whether they are at least prepared to consider whether this is a borderline area in which they should take some action, which they could do under this legislation. If they are sensible, they will look to the future, lay the ground, put this substance into the schedule and ban it, in the same way as they are banning legal highs. I hope that they are prepared to consider that.

[Lord Blencathra]

My Lords, I could never hope to give my noble friend an intellectual answer as to why all alcohol is exempted, but perhaps I can try to give him a legal one and a practical political one.

Most alcohol policy in the United Kingdom is now controlled by the EU and we have a few little bits left. I refer the Committee to the last report conducted by EU Sub-Committee F on the EU alcohol strategy. It was an eye-opener for all of us. Given the parts of alcohol policy we control, if we were to be completely consistent, there would probably be an increase in the price of Scotch whisky. However, that cannot be done for a variety of reasons—not least, it would probably feed into nationalism. With regard to the other parts of the policy, cider is desperately underpriced. No Government have felt it appropriate—no doubt for political reasons—to increase the price and disadvantage manufacturers in the West Country. It may be that with only one Member left in the West Country—I am not meaning to be snide here—a future Labour Government may, in due course, feel it more politically acceptable to put up the price of cider.

The parts that are controlled by the EU mean that, for example, we see on wine and spirit bottles in this country how many units of alcohol are in a glass and how many are in the bottle. That is a purely voluntary system because we are not allowed, under EU rules, to make it compulsory. We also discovered on the committee that some young people—mainly women, although men as well—may be on some form of crash diet and think they can avoid fatty food and sugars and just drink white wine instead. We are not allowed to put the calorific value of a glass of wine on the bottle, except by some voluntary means.

In Scotland, they are trying to conduct an excellent experiment on unit pricing. There may be considerable merit in unit pricing and I think that the Government in England are watching carefully to see how they get on. But of course they have been taken to the European Court, where it may be regarded as a constraint on trade —so Scotland may be prohibited from using unit pricing under EU rules. I could go on, but I will not, because I do not want to be seen to be too mischievous on this. However, there are a lot of other aspects of alcohol policy that we are no longer completely in charge of.

The other, more serious point is that all of us on EU Sub-Committee F, including my colleagues, noble Lords and Baronesses who are much more experienced than I, began the report a year ago thinking that alcohol abuse was out of control in this country, that everyone was drinking more and that we had a terrible problem. We were very surprised to discover that alcohol use is declining, particularly among young people. We cannot have an EU alcohol strategy because every country has a completely different problem. They all have problems with binge drinking, but different age groups are bingeing on different kinds of alcohol. What we discovered is that a small minority are drinking more to excess. I think that I am right in saying that alcohol deaths through cirrhosis of the liver have increased, but it is a smaller minority drinking extraordinary amounts—one or two bottles of vodka or scotch a day, so long as they can afford it. But overall, alcohol reduction policies are working.

In conclusion, I say to my noble friend that if he wants to really have more control over alcohol policy and be able to implement his amendment, he will need to vote no in the referendum when it comes.

[Baroness Meacher]

My Lords, I want to make a brief but important point. In responding to the noble Lord, Lord Norton, will the Minister address his mind to not only the illogicality but the danger of exempting alcohol from the scope of the Bill while banning relatively very safe psychoactive substances? If this ban works at all—the Minister knows that I am pretty sceptical about it—the Government would, in effect, be preventing or discouraging very strongly young people from taking relatively very safe substances while encouraging them, one could argue, to drink alcohol, which we know is a killer drug. Therefore, I ask the Minister, in responding the noble Lord, Lord Norton, to address that particular point about the danger of banning substances while leaving alcohol exempt.

[The Earl of Erroll (CB)]

My Lords, I want to make a quick point because the subject of alcohol has been introduced into the debate. Although I entirely agree with my noble friend Lady Meacher about not classing all drugs together, the idea that we should include alcohol in this would, equally, cause huge problems. Every society in the world has always had something that allowed them to let their hair down at parties. Introducing the subject of alcohol into this sort of debate always makes me think of the definition of a puritan as someone who has a haunting fear that someone somewhere might be enjoying themselves. I get very worried when we try to cover all these things and try to stop everything.

As to the point about increasing the price of alcohol and unit pricing, some time ago some young people pointed out to me that if you increase the price of alcohol, the price of drugs becomes relatively cheaper. It drives people away from something over which we have relative control, which we deliver in controlled concentrations that we understand, into an area over which we have less control. That is very dangerous. We should be careful about trying to alter people’s behaviour in relation to alcohol by pricing mechanisms. There are a lot of people who may be medically qualified, but they do not understand market pressures. That is the only word of caution that I shall say on this matter.

17:29

[Lord Tunnicliffe]

My Lords, for the avoidance of doubt, it is not the policy of the Labour Party to ban alcohol. I leave it to the Minister to enjoy the privilege of office and explain the intellectual case.

[Lord Bates]

Oh, that I could get away with that, although I can say that it is not the policy of Her Majesty’s Government to criminalise the consumption of alcohol. On that, we might be clear.

I understand the point made by the noble Lord, Lord Norton of Louth. He has spotted a certain lack of consistency in approach and wishes to draw the Committee’s attention to it. As a distinguished academic, he then invited me to put forward an intellectual case that would satisfy him. Of course, he knows that that will not necessarily be forthcoming.

As I listened to the debate, the thought occurred to me that the nearest you could get to an intellectual case would be to say that you would not necessarily be starting from here with alcohol. It has been enjoyed and endured, probably in equal measure, for about as long as people have been walking around in this great land of ours. Therefore, alcohol has been part of our culture and our society for millennia.

[Lord Winston (Lab)]

In many cultures, cannabis has had exactly the same status and is a good deal less dangerous.

[Lord Bates]

That is true. I see my officials in the box becoming terribly nervous, as I am jousting way out of my depth here and I should just stick to the script. The point which I was trying to make was that we are dealing in this Bill with a new menace, where there are no controls. People of any age can go into a head shop and procure products which are designated as plant food or as not fit for human consumption. There is no supervision of their manufacture; nobody is required to produce an ID card; and they are unregulated. We have explored different ways of dealing with them and have come down on the side of a blanket ban. I will leave it to the Committee to deduce whether, if alcohol were to be introduced into society today, we would take a different approach. That might be as close as I can possibly get to addressing that.

Let me put on the record some remarks about the Government’s position on alcohol. Alcohol-related harm is estimated to cost society more than £21 billion a year. This figure includes the £11 billion cost of alcohol-related crime and £3.5 billion in costs to the NHS. The harm caused to health is clear. Alcohol misuse is one of the three biggest lifestyle risk factors for disease and death after smoking and obesity. In 2013, more than 6,500 deaths in England were due directly to alcohol consumption. There has also been a steady increase in the number of adults accessing specialist alcohol treatment services, from just over 100,000 people in 2008-09 to nearly 115,000 people in 2013-14.

Alcohol is also a key driver of crime. In particular, it is strongly associated with violent crime. In 53% of violent incidents, victims perceive offenders to be under the influence of alcohol. This is clearly unacceptable.

We can all agree that alcohol, when consumed excessively, is a dangerous substance, which is why the sale of alcohol is tightly controlled under existing legislation. However, when used responsibly, alcohol plays an important social part in our communities. More than £10 billion is raised each year in alcohol duty and more than £38 billion worth of alcoholic beverages were sold in the UK in 2011. Almost 2 million jobs in the UK are said to be linked to the alcohol industry in some way.

The Government’s alcohol strategy, launched in 2012, promoted targeted action to reduce crime and health problems caused by alcohol without disproportionately affecting responsible drinkers. Local communities, agencies and businesses are best placed to identify and deal with alcohol-related problems in their area. The Home Office has worked with 20 local alcohol action areas to tackle the harms caused by excessive alcohol consumption. These areas worked on initiatives to strengthen local partnerships and share innovative ideas that work. Some of the areas which looked at ways to reduce alcohol-related health harms also explored the evidence and local processes that would be required to introduce a health-related licensing objective to address alcohol-related health harms caused by high density of premises. The project ended in March, and Home Office officials are collating the learning from the work that took place in each of the areas with a view to sharing it more widely in due course.

The alcohol industry has an important part to play, too. The Government challenged the industry to take action as part of the public health responsibility deal. The industry has taken a number of positive steps, such as reducing the number of alcoholic units sold and putting more information on labels—though not as much as my noble friend Lord Blencathra would ask us to, probably for the reasons that he alluded to. In addition, the Government have asked Dame Sally Davies, the Chief Medical Officer, to oversee a review of the alcohol guidelines to ensure that they are founded on the best science and help people at all stages of life to make informed choices about their drinking. The review is under way and we expect consultation on new guidelines to take place from the autumn.

There have also been government-led initiatives on alcohol and drug prevention in schools. In March 2013, the Department for Education launched a new drug and alcohol information and advice service for schools, providing information and resources on what works and assisting local areas to choose interventions which are right for their circumstances. The Personal, Social, Health & Economic Education Association has produced a revised programme of study based on the needs of today’s pupils and schools which includes alcohol and drug education. In February 2015, Public Health England launched the Rise Above website, helping to empower young people to make positive choices about issues that have a profound impact on their health. In its first two months, the site received more than 250,000 visits.

Since the alcohol strategy was launched, there has been a reduction in the level of alcohol-related violence. Consistent with trends in overall violent crime, there has been a 34% fall in the number of violent incidents perceived as alcohol related since 2004-05. There have also been reductions in the level of binge drinking and in the number of 11 to 15 year-olds drinking alcohol. The Government have sent a strong message that selling alcohol to children is unacceptable, and there is now an unlimited fine for persistently selling alcohol to children.

Looking ahead, this Government are committed to building on the successes of the alcohol strategy to tackle alcohol as a driver of crime and to supporting people to stay healthy. When misused, alcohol is undoubtedly a harmful substance, and it is right that its availability is properly regulated and that we tackle the health and crime-related issues that arise when people drink to excess. But for most of the population, alcohol is not a dangerous psychoactive substance which should be subject to the blanket ban provided for in the Bill. I hope that, having prompted this timely debate, my noble friend will be content to keep alcohol as an exempted substance for the purpose of the Bill and consider withdrawing his amendment.

[Lord Brooke of Alverthorpe]

I would be grateful if the Minister will respond to the points that I made about Palcohol, which is quite different from what we have been debating today.

[Lord Bates]

The noble Lord is right. We will go back and look again at those Written Answers. We are alert to the risk of powdered alcohol and are actively looking at how best to meet this challenge. However, we are not persuaded by this amendment. We are alert to the problem and are looking at it. I will be happy to meet with the noble Lord, together with officials, if he has new evidence to share with us about how the problem of powdered alcohol is being tackled in other countries and if and how it is being used in this country.

[Lord Norton of Louth]

My Lords, I am grateful to everyone who has spoken. It has been a useful discussion for getting certain matters on the record. We may have done a public service by finding out what the Opposition’s policy is on this matter.

The Minister’s response—and, indeed, my noble friend Lord Blencathra, to some extent—made my case for me. The point that we have established is that there is no principled case for the exemption. The Minister basically said that it is difficult to ban it, that we are where we are and that it brings in a lot of money to the Treasury. That has to be set against the damage that alcohol misuse causes, as I have detailed and, indeed, as my noble friend confirmed in the data that he placed before us. My noble friends Lord Blencathra and the Minister made the point that I was making—that in relation to alcohol there is an approach of regulate and educate—so why are we not being consistent? That is the issue that I was raising and it is important that it is borne in mind. If we are going to proceed, we have to be clear about why we are doing this. Where is the consistency? What is the intellectual case? As we have heard—as my noble friend confirmed—there is not one.

I am sure my noble friend will be relieved to know that I do not intend to press the amendment, nor is it something that would lend itself to come back to on Report. I am grateful to the noble Lord, Lord Brooke, who has raised an important issue which is worth pursuing. I do not intend to pursue the broad issue that I have raised, but I hope that throughout our discussions this will remain the elephant in the room. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendment 30

Moved by

[Baroness Hamwee]

30: Schedule 1, page 34, line 29, after “any” insert “other”

[Baroness Hamwee]

My Lords, I will speak also to Amendments 31, 32, 33 and 34. In view of the debate on the previous amendment, I should declare that some of my friends say that, when doctors ask the question, “Does anyone ever comment on your drinking?”, I should say yes because I drink so little. On the other hand, coffee and chocolate—now, there you are talking.

I am concerned about the definitions in Schedule 1. For example,

“‘caffeine products’ means any product which … contains caffeine, and … does not contain any psychoactive substance”.

I am bemused by this. It must mean “does not contain any other psychoactive substance”, in which case we should say so. We have heard that the Government will be responding to the Constitution Committee. I will not say that the committee was also bemused—that would be very disrespectful—but it pointed out some issues with the relationships between exemptions and so on. We await the response.

The first three amendments are all the same and the fourth one is, in essence, the same as the first three. The last amendment in this group refers to instruments relating to food. The noble Lord, Lord Blencathra, talked about the amount of EU regulation on this issue. I am interested in the words,

“the use of which in or on food is not authorised by an EU instrument”.

Should it not be “an EU or other applicable instrument”, which is what I am suggesting?

Even if there is no secondary legislation or any ruling which applies to this, perhaps we should future-proof it in case there is. I beg to move.

[Lord Mackay of Clashfern]

My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.

[Lord Lucas (Con)]

My Lords, I do not like having a law which states as a fact something which is clearly wrong. I hope my noble friend will therefore accept these amendments, in spirit if not in the exact letter.

[Lord Deben (Con)]

When my noble friend comes to do that, perhaps she will help me with the problem that I have got. I feel that “instrument” is probably not the right word, particularly when used with food. This is one of the ugliest bits of this ugly Bill, and any prettying up of this part would be very helpful.

17:45

[Baroness Chisholm of Owlpen]

My Lords, I understand that these are probing amendments which seek an explanation of some of the drafting in Schedule 1. Amendments 30 to 33 broadly deal with the same point, although Amendment 33 is in different terms to the others.

I am hesitant to say this following that which we have just heard but, taking alcohol as an example, Schedule 1 defines an alcoholic product as,

“any product which … contains alcohol, and … does not contain any psychoactive substance”.

The question is why the second limb of this definition does not refer to “any other psychoactive substance”. The answer is logical but, needless to say, not entirely straightforward. It hinges on the distinction between the natural meaning of the term “psychoactive substance” and the meaning given to that term by the Bill.

Under Clause 2, as we now all know, a psychoactive substance is a substance which,

“is capable of producing a psychoactive effect in a person who consumes it, and”—

importantly—

“is not an exempted substance”.

Alcohol is an exempted substance and so is not a psychoactive substance for the purposes of the Bill. It is therefore not necessary to refer in the definition of alcoholic product to “any other psychoactive substance” because we have already excluded alcohol from the definition of a psychoactive substance. I hope that makes sense.

Amendment 34 touches on a different issue—food additives and flavourings. These are already authorised under the EU legislation so the reference in paragraph 10 of Schedule 1 to an EU instrument—ugly though that may sound—is all that is required. My understanding is that this amendment would expand the paragraph referred to to read “an EU or other applicable instrument”. However, only EU instruments are relevant here and so the additional words are not required. I should perhaps add that we have discussed and agreed with the Food Standards Agency the approach taken in paragraph 10 in Schedule 1.

The noble Baroness suggested that the additional words might provide future-proofing. However, I remind her that there is a regulation-making power in Clause 3 designed with that in mind. In the light of this rather complicated explanation, I hope the noble Baroness will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Official Report will not record the facial expressions around the Chamber in response to the Minister. I think I follow what has been said, but whether it is a sensible way of writing legislation I rather doubt. Legislation should say what it really means and not leave us struggling to justify such really quite difficult wording. I am tempted to press this to a Division, but we have a lot to get through today so I will not take the time now, but who knows? I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Amendments 31 to 34 not moved.

Schedule 1 agreed.

Clause 4: Producing a psychoactive substance

Amendment 35

Moved by

[Lord Paddick]

35: Clause 4, page 2, line 22, leave out “suspects” and insert “thinks”

[Lord Paddick]

My Lords, I shall also speak to Amendments 36 to 38, tabled in my name and that of my noble friend Lady Hamwee. Amendment 35 amends the offence of producing a psychoactive substance so that a person commits an offence under Clause 4(1)(b) if he or she,

“knows or thinks that the substance is a psychoactive substance”,

rather than if he or she “suspects” it. Amendments 36 and 37 make a similar change to the offence of supply or offering to supply under Clause 5(1)(c) to read that the person “knows or thinks” or ought to

“know or think, that the substance is a psychoactive substance”.

Amendment 38 is probing in nature to delete Clause 5(3) simply to try to elicit from the Minister an explanation of what on earth the subsection actually means.

Police officers suspect while the rest of us think. I am picturing myself with a person I have just arrested—sometimes I dream that I am still in the police; rather, it is a nightmare—in the tape-recording interview room at the police station, when I ask him, “Did you suspect this to be a psychoactive substance?”. Surely the question is whether the suspect thought that it was a psychoactive substance, not whether he suspected it to be one. “Suspect” is rather value-laden, which usually has negative connotations. “If you suspect it, report it”, is the latest from the Metropolitan Police. To us it seems more sensible to substitute “thinks” for “suspects” in the context of these offences.

On Amendment 38, perhaps the Minister can explain what:

“For the purposes of subsection (2)(b), the reference to a substance’s psychoactive effects includes a reference to the psychoactive effects which the substance would have if it were the substance which P had offered to R”,

means, and why it is necessary. I beg to move.

[Lord Bates]

My Lords, the short answer to the noble Lord, Lord Paddick, and to get to the heart of it, is that we believe that “knows or suspects” is an established term. It has been used in, for example, Section 21A of the Terrorism Act 2000, Section 2(16) of the Criminal Justice Act 1987—

“Where any person—

(a) knows or suspects that an investigation by the police or the Serious Fraud Office”—

and Section 83ZN(4) of the Banking Act 2009, which states:

“(4) A person who knows or suspects that an investigation is being or is likely to be conducted under section 83ZC”.

I simply cite the examples to show that this is a term which has broad acceptance. However, I shall take up the noble Lord’s invitation to put on the record a few words to expand on what is meant by these clauses.

Amendments 35, 36 and 37 seek to make a slight change to the mental element of the offences in Clauses 4 and 5, which relate to the production and supply of psychoactive substances. In drafting these offences, we consulted the national policing lead for new psychoactive substances and the Crown Prosecution Service. We believe that the current formulation of these offences is proportionate and fair, capturing those individuals who intentionally produce, supply or offer to supply these dangerous substances while not criminalising accidental behaviour.

To satisfy the mental elements of the production offence, the prosecution must show that the production is intentional, that the defendant knew or suspected that the substance is a psychoactive substance, and that the defendant must either intend to consume the psychoactive substance for its psychoactive effects, or know or be reckless as to whether the psychoactive substance is likely to be consumed by another person for its psychoactive effects. The mental elements of the supply offence in Clause 5 are similar; namely, that the prosecution must show that supplying the substance is intentional, that the defendant knew or suspected, or ought to know or suspect, that the substance is a psychoactive substance, and the defendant must know or be reckless as to whether the psychoactive substance is likely to be consumed by the person to whom it is supplied or by another person for its psychoactive effects.

Amendments 35 to 37 seek to remove “suspects” and replace it with “thinks”. Given the two words’ natural meaning, the requirement of each is very similar. However, we believe that the use of “think” raises the bar too high in terms of what must be proved. Thinking something suggests that a person needs to be “satisfied” or “believe” that something is the case—I am having a moment of déjà vu here with the then Serious Crime Bill, because we went through the mens rea discussions then—which is a higher test than that which we propose. The formula “knows or suspects” is commonly used in the criminal law to describe the mental element or mens rea of the offence. It is a phrase that is well understood. “Knows” demonstrates a true belief. Suspicion is a subjective test and need not be based on reasonable grounds, but there must be a possibility which is more than fanciful that the relevant facts exist. The courts have held that a “vague feeling of unease” would not suffice to prove suspicion, but the suspicion need not be “clearly” or “firmly” grounded and targeted on specific facts or based upon reasonable grounds.

The Government considered whether the mental element should extend only as far as “knows”, but we concluded that this could create an inappropriately high bar for prosecutors to overcome, with defendants arguing that they did not know for certain that the substance they were producing or supplying was a psychoactive substance. Given, as I have said, that a “knows or suspects” test is commonly used in the criminal law, I am satisfied that it is well understood by investigators, prosecutors and defence lawyers. I am therefore not persuaded of the case for change.

Under Clause 5(2) there are two limbs to the offer to supply offence. First, person A must offer to supply a psychoactive substance to person B. The second limb requires that person A knows or is reckless as to whether person B, or some other person, would, if a substance was supplied in accordance with the offer, be likely to consume the substance for its psychoactive effects. I realise that these are complex legal terms, but I have to say that they probably fit well with a number of cases that I have personally looked into. I am thinking of head shops selling psychoactive substances in bright packaging. To avoid prosecution, the label states that the substance is plant food or a research chemical that is not for human consumption. Clearly, that is what we are aiming to get at so that there is no loophole. Given the way this second limb operates, no offence would be committed if the substance that was in fact supplied was not a psychoactive substance. It will come as no surprise to noble Lords that not all drug dealers are entirely honest. An offer may be made to supply a psychoactive substance, but the person making the offer may intend to defraud the recipient by passing off some benign white powder as the real thing. Indeed the person making the offer may not intend to supply anything, but simply take the money and run. Clause 5(3) is intended to catch those circumstances. What matters here is that the defendant made an offer to supply a psychoactive substance and should not be able to evade prosecution under Clause 5 on the grounds that he or she did not intend to fulfil their side of the deal.

I accept the probing nature of the amendment and I hope that the noble Lord will find that these explanations, even if they have not entirely satisfied him, have allowed us to put some additional remarks on the record that may be helpful in understanding the Government’s intent in bringing forward this clause.

18:00

[Lord Lucas]

My Lords, I thought that that was a superb explanation but I want to tax the Minister, if I might. There are many ordinary substances—glue being the obvious one, but there are a lot of other things such as spruce logs, which you can burn—which you can use in extremis in the absence of other things for psychoactive purposes. Usually, a supplier of these things would not have to ask themselves whether I intended to use the tube of UHU for psychoactive purposes. When this law is enforced, what rules will apply to a retailer when they are selling something? Most plastic packaging when burnt or heated will produce fumes with a psychoactive effect. What does the retailer have to do not to be reckless? If they think that I am someone who might do that sort of thing, does that qualify? If I sell something to someone, not particularly caring what they will use it for, and they go and kill themselves by using it for psychoactive purposes, am I going to be come after? What are the rules? What do I have to do as a retailer of perfectly ordinary things if there is a potential psychoactive use for them?

[Lord Bates]

My noble friend is correct in the sense that there are rules that exist relating to solvent abuse, the use of solvents in that regard and protections for retailers. However, we are very clear here as to the target audience for the purpose of this measure: individuals who are seeking to manufacture psychoactive substances for the purposes of being consumed by people for their psychoactive effect, or to supply, import or export. We do not believe that they will come into the categories of what would be appropriate retail activity. My noble friend makes a wider point, though. I will reflect again with officials on his remarks in the Official Report, and if I can expand upon that point to provide some additional guidance I will certainly write to him and copy it to other Members of the Committee.

[Lord Paddick]

I thank the Minister for his explanation, on the basis that I am not a lawyer. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Clause 4 agreed.

Clause 5: Supplying, or offering to supply, a psychoactive substance

Amendments 36 to 38 not moved.

Clause 5 agreed.

Amendment 39

Moved by

[Lord Howarth of Newport]

39: After Clause 5, insert the following new Clause—
“Possession for personal use
Possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence.”

[Lord Howarth of Newport]

My Lords, this amendment proposes that the possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence. We touched quite extensively on this issue in the debate on Amendment 23 in the name of the noble Lord, Lord Paddick, but his amendment ranged considerably wider. I hope that the Committee will be willing to focus more tightly on the specific issue that is expressed in the proposed new clause.

In recent years, some 25 countries have removed criminal penalties for personal possession of some or all drugs. Now, for the first time, Her Majesty’s Government of the United Kingdom are tiptoeing towards the decriminalisation of possession for personal use because they have omitted, quite deliberately, to criminalise such possession where psychoactive substances are concerned, as defined in the Bill. However, that raises the question of why they are stopping at new psychoactive substances and, of course, the substances that are exempted in Schedule 1. Why do they not now proceed to decriminalise possession for personal use of small amounts of drugs controlled under the Misuse of Drugs Act 1971? The policy is inconsistent and confusing. As such, I fear that it is liable to damage respect for the law, and the law in respect of drugs is already not much respected as it is.

Why does the Home Office judge it appropriate to criminalise young people wholesale? I am advised that in the period 2009 to 2013, 59,742 young people under the age of 20 were criminalised for possession of controlled drugs—something like 29% of young people in that age group who received a criminal record. Such an approach is clumsy, to say the least, and I submit that it is very damaging to those young people: the short-term and long-term effects of having a criminal record weigh heavily on their educational and employment prospects and their prospects of being able to obtain credit. It is also expensive for the Exchequer. The continuation of this criminalisation appears to ignore the findings of the Home Office’s own study, Drugs: International Comparators, which found that the relative toughness of the prohibitionist approach makes no difference to actual consumption.

Like it or not, the recreational use of drugs is widespread in our society. Indeed, I would say that in certain sections of society it is normal. I do not know whether we are welcoming the Minister on his return from a fact-finding mission to Glastonbury at the weekend; he may perhaps have been invited by the organisers in his official ministerial capacity or perhaps he went incognito, possibly not even wearing his suit. I like to think that he was accompanied by Lady Bates and that she may have been bearing in her hand at least a small posy of flowers, because it could be the last time under this legislation that he will have the opportunity to give her flowers—then he will have to default to his position of presenting her with chocolates.

If the Minister was at Glastonbury, no doubt he will have ignored the vapourings coming from left field from such figures as Billy Bragg and Charlotte Church, but he will not have failed to notice that significant numbers of young people there were consuming psychoactive substances. Possibly he regards all of them as lost souls. Still, he may have taken some satisfaction from knowing that this will be the last time that drugs will be consumed at Glastonbury because, through the virtues of this legislation, he will have completed the circle of prohibition: it will be impossible for them legally to obtain psychoactive substances in future. Such will be the zeal for enforcement of the police and other authorities, prioritising this prohibition alongside their duties to deal with illegal immigration and threats of terrorism, he can be confident that next year no drugs will be consumed at Glastonbury—unless, perhaps, psychoactive substances descend like manna from heaven on to the fields of Glastonbury, because that is still a possibility. Miracles do occur, and it is not impossible that psychoactive substances will continue to be consumed at Glastonbury and other festivals.

We need a realistic and constructive approach to this matter. The constructive policy is to decriminalise the possession of all drugs for personal use—to legalise, to regulate and, as we have noted in earlier debates, to have a serious campaign to inform and educate people about the realities and dangers of drugs. How helpful it would be if we could distinguish legally between the recreational use of drugs and problem usage. Through decriminalising, I believe that we could get more people, more quickly into more effective help and treatment. This is the difference between the Swedish approach and the Portuguese approach, which we discussed earlier. Decriminalisation, as recommended in the proposed new clause, would release the police from so much futile activity.

I am told that Her Majesty’s Government are spending something of the order of £1.5 billion a year on drug law enforcement. The impact assessment for the Bill, at paragraph 75, anticipates that the costs of the new measures to the public sector will be only £60,000 in year 1 and £50,000 a year thereafter. This is a joke: all the new offences created and all the enforcement activities legislated for in the Bill will cost a lot of money. We would do better to switch that expenditure and other expenditure into a real drive on information, education, youth work, healthcare through Public Health England and doing very much better about drugs in prisons.

Should we be condemning or should we be helping? In our society, there is no consensus as to whether the use of drugs is a crime, a vice, a weakness, an illness, an adventure, an act of rebellion or a recreation. It is all these things to different people at different times. But if we cease treating it as a crime, we will, as I have said before, greatly reduce the alienation of so many young people from politics and government, and we will be better placed to help people in need.

The noble Baroness, Lady Meacher, asked me to convey her apologies to the Committee that she is unable to speak to her Amendment 46. She has had to go because she is hosting a reception for Leonard Cheshire Disability, which is being attended by the Secretary of State. I beg to move.

[Lord Paddick]

My Lords, I rise to support Amendment 39 and to speak to Amendments 45 and 52, which are in my name and that of my noble friend Lady Hamwee. I agree with some of the remarks made by the noble Lord, Lord Howarth of Newport. However, I got a touch of déjà vu because I think I made out the case for the decriminalisation of drugs when I spoke to Amendment 23. I will not go over that again.

Amendment 45 clarifies the offence of intentionally importing a psychoactive substance under Clause 7(1)(a) to exclude the importation if it is,

“for the person’s own consumption”.

Amendment 52 makes a similar change to the definition of “prohibited activity”. It would amend Clause 11(1)(d) to read,

“importing such a substance other than for the person’s own consumption”.

As we have heard, the Government do not intend to make possession of psychoactive substances under this Bill a criminal offence. This Bill is targeted at those who supply such substances. While it is therefore reasonable and logical for the importation of such substances for sale or supply to also be an offence, it seems disproportionate to make importation solely for one’s own consumption an offence.

What will happen if this Bill becomes law is what happened in Ireland when similar provisions were enacted. People who currently buy their psychoactive substances from head shops will instead buy them from street drug dealers or, more likely, buy them online. Under this Bill, the police will be able to close down UK-based websites, forcing users to buy their drugs from websites overseas. When they buy their drugs from such websites, they will be guilty of importing psychoactive substances, even if their only intention is to consume the drugs themselves. It seems inconsistent for the Government not to criminalise possession of psychoactive substances under this Bill but still to criminalise people for trying to possess them in this way.

18:15

[Lord Rosser]

My Lords, as the noble Lord, Lord Paddick, said, we have had the debate on decriminalisation already today. I can only repeat our position that we do not believe that we should be moving to decriminalise possession of a wider range of substances currently controlled by the Misuse of Drugs Act 1971 through an amendment to the Bill, which is designed to address a specific issue that has developed very quickly over the last few years in respect of new psychoactive substances as defined in the Bill. As the noble Lord said, another amendment in the group seeks to provide that importing new psychoactive substances should not constitute an offence where the substance is for the individual’s own consumption. That issue was raised at Second Reading.

We will listen with interest to the reply from the Minister, since there is a need to have a very clear definition of which activities, if any, that might be involved in achieving personal possession of new psychoactive substances for personal consumption, which is not an offence under the Bill, are or are not also covered by the non-offence provisions in the Bill. To pursue the point made by the noble Lord, Lord Paddick, will the Minister say whether the reference in Clause 8 to a person committing an offence if they intentionally import a substance for their own consumption is intended to cover the situation where the substance is ordered online from outside the country? What happens if the individual concerned, in ordering the substance online, is not aware of whether it has come from within or outside this country, and it is subsequently proved that it has come from outside this country? Is that person guilty of an offence under the Bill?

[Lord Bates]

My Lords, I thank the noble Lord, Lord Howarth, for introducing this amendment. The amendments in this group relate to the personal use of such substances. Let me assure the noble Lord at the outset that the Bill does not make possession of a psychoactive substance for personal use a criminal offence. Similarly, it is not an offence to possess for personal use a drug subject to a temporary class drug order. In that sense, the current process is consistent with the way in which we have tackled such issues in the Misuse of Drugs Act, in that the intention is to catch the suppliers and manufacturers of the products.

The noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, whose apologies we note, have argued that the Bill is internally inconsistent in making it an offence to import a psychoactive substance for personal use but not criminalising personal possession. I hope I can persuade the Committee that this is not the case. The very principle of this Bill, as recommended by the expert panel, is to tackle the supply of these substances. Given that the vast majority of these substances are imported from abroad, clearly, if we are to tackle the supply, we need to ensure that we have in place a robust importation offence and that the Border Force has sufficient powers to effectively stop these substances crossing the border. On that point, I advise the Committee that the Government intend to table further amendments to ensure that the Border Force can access the powers under the Customs and Exercise Management Act 1979 when it intercepts psychoactive substances coming into the UK.

We cannot have a robust importation offence if we permit small quantities of psychoactive substances to be imported for personal use. We want to stop all these dangerous substances entering the country, not facilitate their use. The expert panel was clear that the Bill should focus on the supply of these substances and target all sources, even social supply, which can be a gateway for people into regular drug use. Any supplier of a new psychoactive substance is contributing to the overall drugs problem.

The substances caught in this Bill are deliberately being treated differently from the drugs controlled by the Misuse of Drugs Act 1971. The 1971 Act controls drugs where we have expert evidence of specific harms and therefore apply the full ban on possession and supply for public protection. For those not—or not yet—controlled under the 1971 Act, we are targeting the trade alone. However, allowing possession of a psychoactive substance is one thing; deliberately weakening the controls by creating a loophole that allows the importation of small quantities is something else, both in principle and in practice.

I have already outlined one risk in allowing importation of personal quantities—that of creating the possibility for individuals to import multiple packages of small quantities of psychoactive substances, which on their own are consistent with personal use but could enter the supply chain when combined. There is a raft of practical challenges with this approach: how much would constitute personal use? Would it cover all substances? Would you allow someone to import a year’s worth of substances for their personal use? That could, depending on the substance, be a significant quantity.

Another concern would be the enforcement challenges that this new approach would create. A blanket importation ban simplifies enforcement by the Border Force: any psychoactive substance found at the border and which is evidently intended for human consumption can be seized and destroyed, unless it is an exempted substance or for an exempted activity. Allowing smaller packages for personal use would impose significant demands on the Border Force, requiring it to investigate the importation in each and every case to determine whether the seized substances are for onward supply or personal use. It would simply be unrealistic and an unnecessary burden to put this measure in place.

On the website question, which is a fair point, it should be said that there were two effects of the Irish experience: one was immediately to close down the head shops in the Republic of Ireland; the other was to allow the Government to take down the websites that were supplying these substances, which were on a Republic of Ireland domain. On the offences committed when there is the intention to import, if you can prove that you did not know the website was overseas and that you were importing, you would not have intentionally imported. Is that clear? Perhaps it is just not clear to me. Let me read it again: on the offences committed when it is intentionally imported, if you can prove that you did not know the website was overseas when you were importing, you would not have intentionally imported. Yes, that is very clear.

Finally, I should add that the importation of psychoactive substance offences in both Ireland and Australia also apply to all quantities imported: there is no exemption for personal consumption. Amendment 52 would stand or fall with Amendment 45, as it seeks to make a consequential amendment to the list of prohibited activities to replicate the change in the importation offence.

I hope that I have been able to provide some comfort to the noble Lord, Lord Howarth. I suspect I may have been unable to persuade the noble Lord, Lord Paddick. However, having given the issue a good airing, I hope that he and other noble Lords will not feel the need to press their amendments.

[Lord Howarth of Newport]

My Lords, the groupings were perhaps not quite right, at least as far as Amendment 39 is concerned. That is probably my fault, but I am grateful to noble Lords for their participation and presence in this short but worthwhile debate.

The Minister’s charm is such that he would almost persuade the Committee to agree to what is palpably bad legislation, and I congratulate him on his manner at the Dispatch Box. In seeking to refute the proposition put forward by the noble Lord, Lord Paddick, he said that we could not have a partial relaxation of a ban on importation for personal use because it is very important that the Border Force has powers—those powers will be further supplemented in amendments to come—to ensure that, in the phrase I think he used, all these dangerous substances do not get through. He went on to say that there is also the Misuse of Drugs Act, which would allow the proscription of individual substances where there is evidence that they are dangerous. There is quite a tension, if not an inconsistency, between those points. We can think about that a little further.

As to the practicalities for the Border Force, I hope that at some point in proceedings the Minister will be able to give us some statistics about the number of packages that enter this country. We all know that there has been an enormous increase in mail order, online retailing. He mentioned that the Irish-based websites had been closed down by their legislation, but we know that the Irish have become big consumers of new psychoactive substances, even more than they were before the prohibition legislation was brought in. How are they getting them? Where are they coming in? What means are there to prevent the entry of all these packages, which Postman Pat then takes up the garden path and pops through the front door? I cannot see how the Border Force will inspect all these packages. I understand that a few years ago, it was able to inspect only some 2% of shipping containers. The Minister is landing the Border Force with a completely impossible task.

[Lord Bates]

That is one of the reasons why the Republic of Ireland Government are pleased that we are following their lead in this regard. Naturally, when you make a blanket ban, as they have done, people find it very easy simply to cross the border—which, of course, is not really there—to obtain these supplies in the north of Ireland. I can give the noble Lord some quick statistics. More than three and a half tonnes of new psychoactive substances were seized by Border Force officers in 2014-15—a 75% increase on the previous year. Officers undertake targeted physical checks, supported by technology such as X-ray and new portable FirstDefender devices, to intercept suspected packages out of the 250,000 parcels that come through the UK’s depots.

[Lord Paddick]

Before the noble Lord withdraws his amendment, can I just say that surely there must be a way to allow all these substances—or as many as are discovered—to be confiscated by the Border Force without making importation for personal use a specific offence? Surely they can be treated as two separate things. No doubt we can discuss that during the Bill’s further stages.

[Lord Bates]

We can, but the whole purpose of the legislation is to try to close the loopholes. As I explained, if there was a loophole that meant you could import for personal use, how do you actually track that? Whether it is one packet or multiple packets, what is an appropriate amount for personal use? That makes it very difficult for Border Force officials. We are taking a blanket approach, as we have with other substances, because it gives clarity to the purpose of the policy.

[Lord Howarth of Newport]

The noble Lord has provided us with some helpful information. I am still left puzzled as to how he thinks people will obtain these psychoactive substances, which it will not be a criminal offence to possess for personal use. Either they will have chemistry sets and synthesise them themselves, or his system of border controls and so forth will fail to work. Anyway, I am grateful for the thoughts that have been offered and the information that has been provided, and I beg leave to withdraw the proposed new clause.

Amendment 39 withdrawn.

18:30

Clause 6: Aggravation of offence under section 5

Amendment 40

Moved by

[Lord Rosser]

40: Clause 6, page 3, line 16, leave out “or B” and insert “, B or C”

[Lord Rosser]

My Lords, a succession of inspection reports, covering Highpoint, Bristol, Liverpool and Deerbolt prisons among others, have shown high levels of use of synthetic cannabis, known by inmates, as I understand it, as “Spice” or “Black Mamba”. These legal drugs are not identifiable, so I am told, by more than a handful of sniffer dogs, nor through mandatory drug testing. Spice can cause high levels of addiction and there have been reports of debt, bullying and violence associated with its use becoming more widespread in prisons.

The government response to the expert panel report included a commitment to improving information about new psychoactive substances in the prison estate. The Minister referred to this issue in his letter of 15 June. However, the purpose of the two amendments that my noble friend Lord Tunnicliffe and I have tabled in this group is to make supplying, or offering to supply, a psychoactive substance in a prison an aggravating feature of the offence of supplying, or offering to supply. As we know, the Bill already makes it a statutory aggravating factor if the offence took place at, or in the vicinity of, a school. Surely another area of significant concern must be our prisons, where there are certainly some fairly unpleasant individuals, but there are also many potentially vulnerable people. To seek to supply, or offer to supply, a psychoactive substance within our prisons—there are different ways in which such substances get inside, whether through visitors, rogue staff, being thrown over the wall or sent in parcels or goods—is clearly making a difficult environment, with significant numbers in a relatively small space, even more awkward for both staff and inmates. I hope the Minister will share the view that supply, or offering to supply, in a prison should be an aggravating feature of such an offence, which is the purpose of our amendments. We await with interest his response to this and the other amendments in this group.

In conclusion, it was stated in the other place:

“Thirty-five per cent of prisoners have a drug addiction and 6% acquire that addiction while in prison”.

The Secretary of State for Justice said in response to that comment that,

“drug addiction is one of the principal factors that lead individuals to commit crime. It is also the case that there is an unacceptable level of drug use, both of illegal drugs and so-called legal highs, in our prisons”.—[Official Report, Commons, 23/06/15; col. 737.]

If that is the Secretary of State’s view—and I do not think that too many people would be surprised that he has expressed it—surely this is an opportunity to make supplying the new psychoactive substances, or offering to supply them, an aggravating feature of the offence in addition to what is already provided for in the Bill, which covers the situation where the offence takes place at, or in the vicinity of, a school. I beg to move.

[Lord Kirkwood of Kirkhope]

My Lords, in following the commendably concise remarks of the noble Lord, Lord Rosser, I wish to speak to Amendments 41, 42 and 108, standing in my name and that of the right reverend Prelate the Bishop of Bristol. These amendments are self-evident and seek to refine and extend protection for children under Clause 6. The provenance of these amendments is the Children’s Society, which, as a result of the important work that it does protecting children, has made a compelling case that these factors need to be inserted in the Bill as additional aggravating factors.

Basically, I am asking the Committee to amend the Bill to make the supply of psychoactive substances to children under the age of 18, or in the vicinity of premises where vulnerable children reside, an aggravating factor of an offence. The evidence indicates that psychoactive substances are now increasingly being used to groom children who are in vulnerable situations and environments. As the Government have already recognised that the school environment needs to be protected, this established principle would merely be extended a little by accepting the amendments suggested by the Children’s Society. It has provided some, I hope, very helpful definitions of accommodation for vulnerable children, which I think are applicable to England and probably Wales. I do not know whether they are entirely appropriate for Scotland, but I would like the Minister’s advice on that. There are three sets of circumstances where children are particularly exposed to these situations—residential care, as defined by people in supported accommodation, and 16 year-olds and 17 year-olds who find themselves homeless. I would be interested to hear about the experience of the right reverend Prelate in this regard as I know that the church does valuable work in this area. He may be able to expand on some of the background circumstances that caused the Children’s Society to promote these amendments.

Amendment 108 seeks to apply these proposed aggravating circumstances to other controlled drugs under the 1971 legislation. As I understand it, at the moment there are merely non-statutory aggravating factors in the 1971 provisions. If Amendment 108 found favour with the Minister, I think that we would be able to ensure the same protection from the courts, as they would be required to take account of aggravating features in considering any offence.

[The Lord Bishop of St Albans]

My Lords, my colleague the right reverend Prelate the Bishop of Bristol is very sorry that he cannot be here, but I have spoken to him and am keen to add a few words of support for these amendments.

Those who work with children, young people and vulnerable adults know only too well the risks associated with residential care. In 2012, of the 16,500 children who were found to be at high risk of sexual exploitation, more than a third—35%—were children living in residential care. It seems to me that these amendments would add additional strength to the general direction of the Bill, which we on these Benches happily support. We also draw on the research and briefing of the Children’s Society.

Places which care for children, young people and vulnerable adults in either residential or supported care facilities can easily become targeted by people who, via grooming and addiction to psychoactive drugs, use control to lead children and vulnerable adults into other very serious kinds of abuse. I note the point that the noble Lord made that accepting the amendment would put this offence on the same footing as that of supplying drugs outside a school, which the Bill already makes an aggravating factor.

My colleague the right reverend Prelate the Bishop of Bristol told me that last year, in his own city of Bristol, 13 men were convicted of a string of sexual offences involving sexual abuse, trafficking, rape and prostitution of teenage girls as young as 13 years old. Their tactics were clear: in return for drugs and alcohol, young girls were forced to perform sexual acts with older men. Much more could be said but I want to support these amendments because, as I say, they would help this vulnerable group to receive additional protection.

[Lord Blencathra]

I must say to my noble friend the Minister that I have considerable sympathy with the amendments in the name of the noble Lord, Lord Kirkwood of Kirkhope. This seems to be entirely the same sort of situation as providing drugs outside schools—perhaps even more so. I accept the argument that, per head of population, the people in what I would call a children’s home—I do not know the modern, politically correct term for a children’s home, but those in residential care or whatever—are more vulnerable than the generality of kids in schools. As the right reverend Prelate has just said, some of the children in there will already have had problems of potential criminality or being vulnerable.

I discovered at the Home Office that once you put children together in a residential place like that, they are not locked up at night; in the main, they are free to come and go, and then they are liable to be preyed on by every sort of predator in sight, for sexual abuse and drug use as well. If my noble friend the Minister is going to reject the amendments at this stage, I hope he and his officials will give them very careful consideration because they are an absolutely sensible, logical extension of the policy towards selling drugs outside schools to children. These children are even more vulnerable.

[Lord Mackay of Clashfern]

My Lords, I support both sets of amendments, on prisons and vulnerable children. It strikes me that these are quite clearly aggravating factors and we should do everything we can to prevent these drugs being introduced to prisons and to vulnerable children.

[Baroness Hamwee]

My Lords, Clause 6, I believe, replicates almost exactly the provision in the Misuse of Drugs Act. Without commenting on either of the areas of concern, although I quite understand the concern, my question to the Minister is: have the Government had any advice about extending the list of aggravating factors generally? Right at the start of Committee we raised the issue of a review of the Misuse of Drugs Act. This is the sort of thing that could well come within the scope of a review.

The Minister will explain to the Committee in a moment the one word which would be different from Section 4A of the Misuse of Drugs Act and that is in his Amendment 43 to Clause 6(6). The MDA talks about delivering a controlled drug to a third person. Like the original drafter of this provision, I would have thought that referring to a psychoactive substance is logical and if we take out the word “psychoactive”—unless we are going to be told that that is what we have to read into it—it would seem to mean that if someone under 18 delivering anything to another person in connection with an offence falls within this. But I had better not further anticipate what we will be told about this.

[Lord Bates]

My Lords, these are two very important areas—prisons and children—and I am grateful to the noble Lords, Lord Rosser and Lord Kirkwood, for introducing these amendments.

I will put some remarks on the record but, given the views that have been expressed around the Chamber regarding children, I will undertake between Committee and Report, if the Children’s Society and noble Lords were interested and the right reverend Prelate was minded to join us, to arrange for us to meet the Children’s Society, with officials, and really examine this part of the Bill to see whether this is something that we need to look at in more detail. I will put some general remarks on the record but that is a commitment that I am happy to give in this important area.

I begin by acknowledging the problem that new psychoactive substances are causing in prisons, and take this opportunity to reassure noble Lords that a wide range of work is currently under way within the National Offender Management Service, including clear and unequivocal guidance to prison governors and staff about the dangers posed by these substances. There is a widespread prison media campaign, including the use of prison radio, to ensure that all prisoners are aware of the very serious risks associated with using new psychoactive substances. A National Offender Management Service steering group has recently been established to deliver actions on supply reduction; demand reduction; data and research; and messaging and communications.

18:45

There has also been a strong legislative response, with the Serious Crime Act creating a new offence of throwing or projecting an item over a prison perimeter. This new offence was designed in particular to tackle the supply into prisons of new psychoactive substances and will go some way to tackling the availability of these substances on the prison estate. Furthermore, the National Offender Management Service has worked and will continue to work closely with the Home Office on this Bill, which we expect to have a marked effect on tackling the supply and use of new psychoactive substances in prisons.

Amendments 40 and 44 seek to make the supply of a psychoactive substance on prison premises an additional aggravating factor when a court sentences an offender for an offence under Clause 5. Similarly, Amendments 41 and 42, tabled by the noble Lord, Lord Kirkwood, seek to extend the circumstances where Clause 6 is to apply. In this instance, the supply of a psychoactive substance on or in the vicinity of accommodation where a looked-after child resides or to a person under the age of 18 would constitute an aggravating factor.

Clause 6 replicates an equivalent provision in Section 4A of the Misuse of Drugs Act, which seeks to provide additional protections to children from the dangers of controlled drugs. In its current form, this clause provides similar protections with regard to new psychoactive substances by creating an aggravated offence which would apply in two circumstances. The first is when someone supplies, or offers to supply, a psychoactive substance,

“in the vicinity of a school premises”,

one hour before or after they are used by a person under the age of 18. The second is when a person causes or permits a child or young person under 18,

“to deliver a psychoactive substance to a third person, or … to deliver a drug-related consideration”—

that is, some form of payment—to himself or herself, or to a third person.

It is right that the courts should look particularly seriously upon an offence under Clause 5 committed in these circumstances and take this into account when sentencing the offender. This is not to say that the court would not also take a dim view of other circumstances where a Clause 5 offence is being committed. The noble Lords, Lord Rosser and Lord Kirkwood, are right to highlight other scenarios where a person convicted of the supply offence ought to be treated more severely compared with other cases.

That said, one challenge presented by the amendment in the name of the noble Lord, Lord Kirkwood, is that while an offender supplying drugs would be in no doubt that he or she was operating near a school, the same could not necessarily be said of a residential children’s home or other premises to which Amendment 42 would apply. Such premises may not be clearly identified as a children’s home and could look like any other house in a residential street. Where that is the case, it would arguably be unjust to impose a higher sentence in circumstances where the offender could have no knowledge that the aggravating factor was engaged.

[Lord Blencathra]

The bad guys know where the children’s homes are, even though they may not be marked on the map or have a sign up. The people we are dealing with are clever drug dealers and if they wish to make drugs available to children in a children’s home, they will be able to do so. I suggest to my noble friend that the lack of knowledge of where the home is is not relevant.

[Lord Bates]

Of course, and I remind my noble and learned friend Lord Mackay of Clashfern that, within the sentencing guidelines, there would be the ability for some of these factors to be spelled out. The awareness would be there and I am very sensitive to that. Having used the case of Canterbury, where one of these head shops was within 100 yards of the King’s School—just across the road from it—that is precisely the type of circumstance we are trying to get to. But in the normal way it would be open to the sentencing court, having regard to the relevant sentencing guidelines, to take any other aggravating factors into consideration. In updating its guidelines, the Sentencing Council in England and Wales may wish to reflect on the points raised in this debate. I might add that any prisoner who commits any offence under the Bill could be subject to additional punishments and restrictions through existing prison disciplinary procedures. For the purpose of the Bill we should be guided by the equivalent provision in the Misuse of Drugs Act, notwithstanding Amendment 108, which seeks to bring the 1971 Act into line with Amendment 42.

There is also one government amendment in this group. Amendment 43 is a technical amendment that seeks to correctly reference the second aggravating offence in Clause 6 with the corresponding offence in Clause 5. Clause 6 creates two aggravating conditions which a court must consider when passing sentence. It states:

“Condition A is that the offence was committed on or in the vicinity of school premises at a relevant time … Condition B is that … the offender used a courier who, at the time the offence was committed, was under the age of 18”.

Amendment 43 relates to condition B.

Clause 6(6)(a) provides that a person uses a courier if the person,

“causes or permits another person … to deliver a psychoactive substance”.

However, and rightly, a person can commit an offence of offering to supply a psychoactive substance in Clause 5(2) without there being any psychoactive substance in existence. The offence would be committed if an offer was made to supply a psychoactive substance but a non-psychoactive substance was in fact supplied. As we discussed in the previous group, it could be a packet of some benign white powder being passed off as a psychoactive substance. In such a case the requirement in Clause 6(6)(a) would not be met. Amendment 43 simply ensures that condition B operates as intended.

I hope that I have been able to reassure the noble Lord, Lord Tunnicliffe, that the Government are actively tackling the issue of new psychoactive substances in prisons and that, on that basis, he will be content to withdraw his amendment. Within that, I extend to the noble Lords, Lord Rosser and Lord Tunnicliffe, the same offer which has been extended to other Members: to have that meeting with the Children’s Society to explore this area and, having heard its experiences, to consider whether further action is needed.

[Lord Kirkwood of Kirkhope]

I hope I can say on behalf of the Bishops’ Bench that the offer of a meeting is welcome. If we can do that in association with the Children’s Society, that meets our immediate request and I would be happy to operate on that basis.

[Baroness Hamwee]

My Lords, if the correct way of dealing with subsection (6) is just to refer to the delivery of a substance, are the Government considering changing Section 4 of the Misuse of Drugs Act—I do not have the Act with me—to take out the reference to a controlled drug? I do not expect an answer at this point but I am not immediately persuaded that they should be different.

[Lord Rosser]

Before I respond on what I am doing with the amendment—I shall be withdrawing it; I do not want to appear to suggest that I am going to do something else—can the Minister say whether the Ministry of Justice is interested in seeing this become an aggravating feature in prisons?

[Lord Bates]

As one would expect, the justice department will have been consulted and was part of the discussions in preparing the Bill. I note the reference that the noble Lord made to the remarks of the Justice Secretary in another place. I will certainly reflect on those and make contact with the Ministry of Justice again to ensure that its views are fully taken into account in the approach which I have outlined. Given that it has lead responsibility for prisons policy, I would expect those to be exactly as I have said.

[Lord Mackay of Clashfern]

Before the noble Lord says what he wants to do about his amendment, does not the fact that certain matters have been selected for aggravation make it somewhat more difficult for a judge to take a factor which is not made specific and give it the same weight? It slightly worries me that if you do not mention prisons and vulnerable children, while a section in the Bill does mention specific aggravations, that will tend to reduce the possibility of the two factors that we are interested in being regarded as aggravations. I assume that the judges’ reaction would be, “Parliament has not thought to mention these, and therefore it is not really quite so serious”. Whereas if Parliament has mentioned it—and prisons strikes me as an issue of particular importance—that is something we should emphasise for the judge who has to deal with this matter.

[The Lord Bishop of Peterborough]

My Lords, I support the aggravated category for prisons and the particularly vulnerable children who are, in one way or another, in care. I am very grateful for what the Minister said about having a meeting on children in care. That is good and I am happy to accept it, but from my fairly regular visiting of prisons in my diocese—I have visited the four that were there but two of them are now closed—I know that the great majority of prisoners are themselves highly vulnerable and need to be treated as such. It seems that so many young men and young women find themselves in prison having started off with drugs in one way or another. They have been used and abused, often as vulnerable young people, and end up in prison still as relatively young people. They are extremely vulnerable to exploitation through drugs, so this really should be another aggravated category.

[Lord Bates]

In response to those two points, I think I am right in saying that where we came from on this was to try to get consistency with the Misuse of Drugs Act 1971, where “children” is stated as an aggravating factor. We are therefore continuing that into the present. There will come a point where if you then add in certain types of locations and places, where do you stop? Will the courts then be unsure as to what the Government were trying to tackle in introducing the legislation? There is a duty on sentencing judges to follow sentencing guidelines, so the point can be dealt with through that route. We have certainly tightened up the laws with regard to drug use in prison through the Criminal Justice and Courts Act 2015 and the Serious Crime Act 2015. As I say, I certainly understand the comments that have been made and I will reflect particularly on the point about children between now and Report, with the assistance of that meeting.

[Lord Rosser]

The Minister said that he would reflect particularly on the point about children. Is he saying that he will reflect on the prisons point? He worded it in such a way that it cast doubt as to whether he would.

[Lord Bates]

I am always learning that the problem with legislation is when you mention one factor and have not necessarily mentioned another. I did not particularly mention it. The specific suggestion I made to the noble Lord, Lord Rosser, was that I would discuss the points which he raised with colleagues in the Ministry of Justice. I will share the remarks he has made in Committee on this amendment with them. That was the offer I made in respect to his amendment. It was in respect to the others that I agreed to the meeting.

18:59

[Lord Rosser]

We would like to know where we stand before Report, because if we are drawing a blank, it is something we would certainly wish to consider pursuing on Report. We would not wish to do so if there was some movement on it. I noted the comments about bringing this into line with the Misuse of Drugs Act 1971. One might say that the Bill is not fully in line with the Misuse of Drugs Act, particularly over the offence of possession, for example. I am not sure that arguing that, on the one hand, you have to bring this in line with the Act but that on the other there is a clear distinction is the most consistent or best argument to use, quite frankly, on this issue.

I will of course read the Minister’s reply in full, since I appreciate he said quite a few things and I am not satisfied that I necessarily took them all on board. I will read Hansard carefully. I also thank all noble Lords who have participated in the debate. One thing I noticed was that, in his reply, the Minister made reference to action that can be taken against the prisoners involved with these drugs, but of course the issue is about the drugs getting into prisons, which can involve them coming in with parcels or visitors. I appreciate that once the drugs are in the prison they are being distributed by prisoners, which is where the bullying and harassment can come in, but there is also the issue of who is helping to get them into prisons in the first place and whether that should be an aggravating feature. I note that the Minister has said he will raise this with the Ministry of Justice. If he could indicate where we stood ahead of Report, that would be extremely helpful indeed. In the light of that, I beg leave to withdraw my amendment.

Amendment 40 withdrawn.

Amendments 41 and 42 not moved.

Amendment 43

Moved by

[Lord Bates]

43: Clause 6, page 3, line 32, leave out “psychoactive”

Amendment 43 agreed.

Amendment 44 not moved.

Clause 6, as amended, agreed.

Clause 7 agreed.

Clause 8: Importing or exporting a psychoactive substance

Amendments 45 and 46 not moved.

Clause 8 agreed.

Clause 9 agreed.

Clause 10: Power to provide for exceptions to offences

Amendments 47 to 49 not moved.

Clause 10 agreed.

Amendment 50 not moved.

Amendment 51

Moved by

[Lord Paddick]

51: Before Clause 11, insert the following new Clause—
“Licences for sale of psychoactive substances
(1) The Secretary of State shall within one year after the passing of this Act make regulations for the licensing of—
(a) specified persons;(b) specified premises;to sell psychoactive substances determined to pose low overall risk and exempted under Schedule 1 by regulations made under section 3.(2) Before making any regulations under this section, the Secretary of State must consult—
(a) representatives of chief officers of police, local authorities and small businesses, and(b) such other persons as the Secretary of State considers appropriate.(3) Regulations under this section may—
(a) make different provision for different purposes, and(b) contain incidental, supplemental, consequential or transitional provision or savings.(4) The power to make regulations under this section is exercisable by statutory instrument.
(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(6) In this section “specified” means specified in regulations.”

[Lord Paddick]

My Lords, Amendment 51 stands in my name and the names of my noble friend Lady Hamwee and the noble Baroness, Lady Meacher. It would allow the Secretary of State to make regulations to license people and premises to sell low-risk psychoactive substances after consultation with representatives of the police, local authorities and small businesses.

The Government, in their background briefing to the Bill, acknowledge that some so-called head shops are well run and that the owners or managers of these premises make every effort to remain with the law and to conduct their business responsibly. We maintain that were all head shops to disappear, as happened when similar legislation was enacted in Ireland, users would resort to far more dangerous suppliers, such as street drug dealers and overseas websites. There is a real danger that the complete disappearance of head shops would result in more deaths from new psychoactive substances. Together with other amendments already debated, this amendment would allow low-risk psychoactive substances that have been exempted from the Bill to be sold to adults only, in closely regulated premises, by fit and proper licence holders.

We had a discussion this afternoon about how alcohol is very closely regulated. We are saying that, through this amendment, other low-risk psychoactive substances could be regulated and controlled. The overall effect of these changes would be to keep users from being driven into the hands of criminal suppliers and unregulated websites. I beg to move.

[Lord Howarth of Newport]

My Lords, I support this amendment. I think it is going to be very difficult in practice to implement the kind of regime that the noble Lord and his cosignatories call for, but I share his view that it may well be of much more questionable benefit than the Government suppose to close down the existing head shops en masse. I suspect that they vary very much in terms of the responsibility with which they deal with their clients but am pretty sure that, as the noble Lord, Lord Paddick, said, there are head-shop proprietors and staff who take a responsible view of the risks that their clients may run and the desirability of ensuring that they do not come to harm. It is very difficult to know how to prevent anyone coming to harm, not least because it is very difficult to identify the exact nature of the substances sold, even for the head-shop importers and proprietors, and there is not the evidence to tell us about the long-term effects of the use of new psychoactive substances.

However, I agree with the noble Lord, Lord Paddick, that there is a lesser danger in this than there is in consigning the users of new psychoactive substances to street dealers and to online sources based outside this country operated by people who have no scruples at all. The consultation process that the noble Lord has proposed would be problematic, because people in the neighbourhood of head shops tend not to like them and it would be very difficult to get local public assent to the licensing of head shops, but a responsible local authority ought to undertake that kind of exercise.

I was very interested to note that, in the briefing from the Local Government Association on this amendment that I think we have all received, it makes some very practical points:

“We would oppose councils being made responsible for licensing because of the difficulties in assessing if a product is of low overall risk. Unless there was a full scale testing and risk assessment regime in place covering health and other risks the safety of a product could not be guaranteed”.

It is absolutely right about that, which is one of the reasons why, on another amendment, I have argued for the provision of a network of testing facilities. We ought to aim at that. We should encourage responsible conduct by people who would seek to supply psychoactive substances to the market in this country. There is evidence that many people operating cannabis cafes in the Netherlands for example, particularly because they are under pretty close police and other supervision, take good care to ensure that the products that they offer are relatively safe and that they guide purchasers to buy the products that may be least dangerous and least unsuitable for them. One might even say, for those who favour the taking of cannabis, it is positively suitable for them—but I am neutral on that point. We have all the time to think practically and realistically and, in tabling this amendment, noble Lords are doing just that.

[Lord Blencathra]

I rise briefly in response to a point made by the noble Lord, Lord Paddick, when he mentioned that the closure of the head shops in Ireland had resulted in the whole trade going underground. I am not sure whether my noble friend has had a chance to see it or research it, but my Google alert this morning said that some new report had been published by some doctors or professors in Ireland—maybe it was Dublin university, or something—that suggested that, quite the contrary, use of psychoactive substances overall had declined dramatically with the head shops ban and it had not gone underground, as people had feared. I have not had a chance to Google it and study it all but, if my noble friend is not aware of it, perhaps he and his assistants in his office can swot up on it. I am sure that it is a measure that will be addressed again at Report. We had a big debate last week on the situation in Ireland, so it would be worth while studying this academic research to see whether it is kosher.

[Lord Rosser]

As the noble Lord, Lord Paddick, said, the amendment would introduce a system of licensing to sell psychoactive substances determined to pose low overall risk, which is contrary to the objectives of the Bill as it currently stands, which is to provide for a ban on new psychoactive substances. My noble friend Lord Howarth of Newport has already referred to the views of the Local Government Association and its lack of enthusiasm for this amendment, saying that it would oppose councils being made responsible for licensing because of the difficulties of assessing whether a product is a low overall risk. My noble friend Lord Howarth went on to refer to the further comments that the LGA made about the need for a very thorough regime to be in place if we were to go down the road that was being suggested in this amendment. The Government’s expert panel also said that it would be difficult to define low risk from a legislative and harms perspective and, even if it could be done, a mechanism for controlling new psychoactive substances would still be needed, which could lead to confusing messages about new psychoactive substances overall.

How does one decide whether a drug is safe? There are immediate risks that occur and also long-term risks that occur, including long-term psychological issues and dependency, so what does low harm mean in that context? The amendment refers to everything being set out in regulations, but I am not sure whether, under the terms of the amendment, a drug would be presumed safe until evidence came to the contrary or whether the producers of a drug would be expected to prove that the drug was safe. If so, how would you do that, how would you determine all the possible different types of harm, and would it have to involve human trials—because, without trials, how do you determine harm or otherwise?

The amendment refers in a sense to Clause 3, which provides that the,

“Secretary of State may by regulations amend Schedule 1 in order to … add or vary any description of substance”.

We had a discussion earlier today about the significance of the word “vary” but, in the light of the Minister’s response at Second Reading, I am still not clear why that provision in subsection (2)(a) is there, and why the Secretary of State may add a substance to the list. Listening to the Minister’s response at Second Reading, I got the impression that he was making it very clear on behalf of the Government that the Secretary of State would not be adding substances under the terms of Clause 3. Bearing in mind that the Government have put it here in the Bill, I would simply ask: in what circumstances do they envisage the Secretary of State adding to items in Schedule 1?

[Lord Bates]

I shall take that last point first. From time to time, new and very dangerous chemical compounds come into the market in the UK, as we know from the whole experience of tackling new psychoactive substances. The provision is there to allow the possibility, in extreme circumstances, the likes of which we cannot envisage at this stage, on scientific advice and on advice from the police on a new substance coming into the UK and putting lives at risk, that we can act in a prompt way.

19:15

The regulation-making power in the Bill is inserted for a number of reasons—to ensure that any unintended consequences can be remedied, for example, having excluded substances mistakenly or because substances have been undesirably caught, such as flowers. It is also for substances that have a legitimate purpose, such as for industrial uses or for healthcare, and it would enable a description of a substance to be updated to reflect underlying changes to the regulatory regime in respect of that substance—for example, to reflect future revocation or replacement of the Human Medicines Regulations 2012. I know that the noble Lord will probably not find that entirely satisfactory, but it is something that we feel is important to allow us—

[Lord Rosser]

The Minister will tell me if I am wrong, but I am very much getting the impression that the Government do not actually have any idea at the moment of the circumstance in which they might add an exempted substance to Schedule 1, but have put in the provision just in case something turns up that they cannot think of at the moment and that might lead them to want to do it.

[Lord Bates]

Well, I have given a couple of examples of things that may have been included by mistake. We know from the European monitoring centre that there are hundreds of new substances and chemical compounds that have been identified in the course of each year. Over 500 substances have already been banned in the past five years alone. Therefore, because of that fast-moving change, we have an enabling power in the Bill to allow us to respond quickly and effectively should a threat or an oversight with an unintended consequence come to light. I would have thought that, in good legislative practice, the fact that the Government would seek to respond in that way would carry a great deal of support.

I am conscious of time, but also of the fact that we dealt with a number of these issues under Amendment 19, when we discussed risk. We had a very good and thoughtful debate on that issue, and it was clear from that why, when the expert panel looked at the New Zealand licensing example, it felt that there were weaknesses in it because of how low risk or low harm would be defined. Therefore, the panel chose not to recommend going down that line but instead chose to follow the example of the Republic of Ireland and a blanket ban.

I come to the point raised by my noble friend Lord Blencathra, who asked whether I had seen the new report produced by Trinity College Dublin, an eminent academic source, on the ban on head shops and how it was actually impacting. One of the authors of the study, Dr Bobby Smyth, claims that,

“the results of the survey show that the kind of drugs being sold in headshops are not being used to the same extent any more”.

That would seem to challenge one of the arguments that has frequently been put forward—that somehow the incidence of usage has increased. That is not what has been found. Dr Smyth also claims that those drugs have not been driven underground, as has been feared, stating that,

“the findings have shown that the implementation of legislation, targeted primarily at the vendors of NPS, did indeed coincide with a fall in NPS use among this high risk group of teenagers who attend a drug and alcohol treatment service … The study found that, among the two groups surveyed, not only did the problematic abuse of headshop drugs fall but that the use of cocaine and amphetamines also fell”.

Consumption of so-called legal highs fell sharply after the Government cracked down on head shops that sold them, according to new research. Researchers studied two groups of young people attending a drug and alcohol treatment centre in Dublin. The first group attended the service immediately before the legal changes designed to drive head shops out of business were introduced, and the second attended a year later, after the ban came into effect. The percentage of problematic users of head shop drugs fell from 34% in the first group to zero in the second. The percentage who had taken any such drugs in the previous three months fell dramatically from 82% pre-ban to 28% after the ban was introduced. The study was published in the International Journal of Drug Policy. That clearly produces some evidence, which I know was sought by Members of the Committee earlier when they asked whether the ban was having any effect.

Was the expert panel’s recommendation to take a different approach from New Zealand a sensible way forward? I think it probably is. Just last week, the state of Western Australia passed a blanket ban as well. There is a gathering view that this is having some effect in tackling a very difficult problem, and that licensing, however well-meaning and thoughtfully presented the arguments for it may be, is not as effective in achieving the outcomes that we all want.

[Lord Howarth of Newport]

Whatever policies are introduced on head shops—whether a wholesale ban, a crackdown, some degree of tolerance, supervision or licensing—we will not end up with the state of affairs that might well be desired by all of us: that there should be no more importation and consumption of new psychoactive substances. The Minister spoke earlier about the difficulties of defining “low harm”. I agree with him that these definitions are very hard to pin down. However, I also put it to him that in this field we are looking for the least bad solution. There is no ideal solution. We are looking for a practical set of measures that will, as far as possible, protect young people and society from the perils of dangerous psychoactive substances. There is a strong case for doing more work to achieve a workable, practical definition of “a low degree of harm”, and the approach advocated by the noble Lord, Lord Paddick, in this amendment should not be discarded.

[Lord Bates]

I respect the noble Lord in taking that position but it is a different position from that which the Government have arrived at after taking advice on this. The Local Government Association, which has to wrestle with these problems, has seen numerous examples over recent months of local authorities using a range of powers to shut down head shops in, for example, Lincoln, Portsmouth, Newcastle, Kent and Medway as a result of anti-social behaviour in and around these premises. I am not aware of any local authority or police force that welcomes head shops in its community.

Before I have letters flooding my way from the Australian high commissioner, I should point out that the government of Western Australia introduced legislation last month but it has not yet been passed. I hope that clarifies the position, and I hope that the noble Lord is reassured and feels able to withdraw his amendment.

[Lord Paddick]

I thank the Minister and other noble Lords for their contributions. The noble Lord, Lord Howarth of Newport, talked about having received the LGA briefing on this amendment. Regrettably, we have not received it, which puts us in a slightly difficult position in commenting on it. However, from what I have heard in the Chamber this afternoon, there seems to be some confusion over what the amendment is proposing. It proposes that local authorities license people and premises but the decision on which substances can be sold—that is, whether something is a low-risk substance—would be agreed by the Secretary of State, who would then put that substance on the exempt list. We have debated what “low-risk substance” means or could mean on a previous amendment. Our Amendment 22 offered a definition of “low overall risk” taken precisely from the Misuse of Drugs Act. What a low-risk substance is and how you define it is a separate debate.

I am grateful to the noble Lord, Lord Blencathra, for raising this new research. Again, it is difficult to comment without having read it, unlike the Minister. However, it sounds as though the surveys were conducted in a treatment centre for young people. The difficulty, as I have mentioned, is that when substances are made illegal people are very reluctant to come forward to seek treatment because those substances are now illegal, whereas previously they were legal and people had no qualms about coming forward.

Last week we offered the House the chance to have an independent, objective review, not only of the operation of the Misuse of Drugs Act but of what is happening in Ireland. It is very difficult for us in Committee to decide which side of the argument we come down on when there appears to be completely conflicting evidence of what the effects of the Irish ban are.

As to one thing I am more certain about, the Minister talked about the rejection of the New Zealand model. I understand that the problem with that model is that the suppliers of new psychoactive substances have not been prepared to put up the money to have their substances tested to the extent that they need to be to be approved. That is why the New Zealand model has run into the ground.

[Lord Howarth of Newport]

There have also been difficulties because of objections to testing on animals.

[Lord Paddick]

I accept that testing anything on animals is another very contentious issue. However, it is not right to say that the New Zealand model, whereby the door has been left open to allow people to have substances tested to see whether they are low risk, has been rejected, other than on commercial grounds by the people who are producing them.

Having said all that, I am very grateful to the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

House resumed. Committee to begin again not before 8.30 pm.

Mental Health: Young People

Tuesday 30th June 2015 Lords Chamber

Question for Short Debate

19:30

Asked by

[Baroness Tyler of Enfield]

To ask Her Majesty’s Government what plans they have to respond to the recommendations of the Children and Young People’s Mental Health Task Force Report Future in Mind.

[Baroness Tyler of Enfield (LD)]

My Lords, following hot on the heels of our excellent debate last week on young people’s experience of mental health crisis care, I am delighted that today we are able to debate the Government’s response to the children and young people’s mental health task force’s report Future in Mind. Perhaps the focus we now have in your Lordships’ House on mental health—and, recently, on children and young people’s mental health in particular—shows that the tag “The Cinderella of Cinderella services”, which is often used in debates in this House, is starting to become a thing of the past. Let us hope that is indeed the case, but let us also remain vigilant so we can feel confident that the good intentions of the task force’s report will turn into a reality for the alarmingly high number of children and young people in this country experiencing mental health problems.

I start by thanking all the members of the children and young people’s mental health task force for producing an excellent report. Since its publication in March this year, it has clearly had a major impact on mental health policy. In his March Budget, the Chancellor announced that mental health services for children and young people would receive an additional £1.25 billion in funding over the next five years. This amounts to £250 million annually, £l5 million of which is for perinatal services, the rest being for children and young people’s mental health services. This is in addition to the announcement in the Autumn Statement of £150 million over five years for eating disorder and self-harm services. This new investment is much to be welcomed, and I do so wholeheartedly.

However we need to remember the broader context. It is no secret that historically CAMHS have been neglected and starved of cash, perennially losing out to other health services deemed to be of higher priority. So we should keep in mind that, even with the additional money, funding for CAMHS makes up only 8% of the total mental health budget, even though children and young people make up 23% of the population. Given this, it is more important than ever that we examine how these funds will be used.

The additional £1.25 billion of funding will be directed to local areas once they have completed and published local transformation plans. In order to develop these plans, the lead commissioning agency, which is most likely to be the clinical commissioning group, needs to work with health and well-being boards, schools, children, young people and families in the locality to decide precisely where the investment should be targeted. To have real teeth, it is vital that transformation plans contain local access and waiting time targets in line with the ambitions contained in the NHS five-year plan, and address the issue of choice of provider for children and young people, including in the rollout of access to psychological therapy.

Considering that most families do not currently feel that CAMHS is anything like meeting their needs, it will be particularly important that CCGs communicate directly with children and their families to help determine the areas where additional investment is most needed. Yet the proposed timeline for formulating these transformation plans, which are to be completed by the end of September, is very short and, given the time of year that they are expected to formulate these plans—between July and September—one has to ask whether is it realistic to expect CCGs to be able to engage with schools, young people and their families in a meaningful way.

I was pleased to see a specific commitment of £15 million per year to improve perinatal mental health services. The task force reports that maternal perinatal mental health problems carry a long-term cost to society of about £10,000 per birth, and nearly three-quarters of this cost has to do with adverse impacts on the child. For example, the odds of a child developing depression are nearly five times greater if their mother experienced perinatal depression. Such outcomes are avoidable. Specialist mother and baby units across the country are delivering excellent results helping new mothers with psychiatric problems bond with their babies. The NSPCC suggests that one in 10 children would benefit if all new mothers with mental illness had access to programmes such as these mother and baby units. Given this, it is simply unacceptable that currently only 15% of localities provide perinatal mental health services at the level recommended in national guidance and that 40% provide no service at all. Worse still, only 3% of CCGs have a strategy for commissioning perinatal mental health services.

Turning to preventive work, I am also pleased to see that the Government have responded to calls from the task force for schools to take a greater role in promoting good mental health and fostering resilience—something we on these Benches have long called for. Some local areas are already doing very good work in this field. For example, Kingston Council decided to appoint health link workers, part of whose role is to help schools and young people identify mental health issues at an early stage. Working in this way, they are able to address issues such as depression, self-harm and eating disorders early on, so that they do not become a bigger problem later. The health link workers are also able to educate staff to recognise the signs, talk directly to the pupils and try to get them help.

I understand that the Department for Education will contribute £1.5 million in 2015-16 to run a joint pilot programme with NHS England to place named CAMHS contacts in schools to act as liaison between staff, students, and community CAMHS. If implemented effectively, this programme has the potential to provide more direct entry points into specialist mental health services and to allow school staff to gain insight into how to cultivate a healthy learning environment.

Schools can provide a very valuable referral route towards specialist services but, as the task force report highlights, this will not reach all the children who need mental health care, particularly the most vulnerable children. The charity YoungMinds reports that one in three young people say that they do not know where to turn to seek help. Indeed, the process of accessing specialist services can be lengthy and confusing. Programmes such as the Well Centre in London offer an alternative. It holds open drop-in hours for young people aged 13 to 20 three afternoons a week, when they can access specialist mental health support easily and confidentially.

For others, accessing care is difficult because of disability or other difficulties in their lives. For example, learning disabled children are likely to have particular difficulty accessing care. Barnardo’s reports that children in care are five times more likely to develop childhood mental health problems, and 10 times more likely than their peers to have significant learning disabilities, meaning that although they need support the most, they are also less likely to be able to access it. I particularly commend the work of the task force’s sub-group, which looked in depth at the issue of vulnerable groups and inequalities. As a result of its work, the task force report makes it clear that in order to engage the most vulnerable children, commissioners and providers across education, health, social services and youth offending teams will need to take an active role in engaging the children and young people who are the least likely to engage with existing services.

The task force found good examples of workers trained to deliver support in a flexible, approachable and joined-up way to help reach some of the most needy young people. What really brought this to life for me was the case study of Jay, a 17 year-old cannabis dealer involved in gang activity, who was mistrustful of professionals, fearing that talking to him would lead to him being put in prison. His mental health had deteriorated since witnessing several stabbings in his area. He failed to show up for various appointments, so his case was closed. But Jay’s youth offending team worker identified a youth worker in the community who already knew Jay and his family, and they began to meet Jay in places where he felt comfortable, such as at his favourite fish and chip shop. Eventually, the YOT worker was able to gain Jay’s trust sufficiently to convince him to begin treatment for substance abuse. Where most services would have given up on Jay, these workers were able to reach him and put him on a path to recovery from both substance abuse and mental ill health. How do the Government intend to respond to the task force’s recommendations about reaching out to the most vulnerable children and young people?

In my view, the task force report Future in Mind is a landmark document in the much-needed improvement of mental health services in England. My hope is that it fuels transformational change not just for CAMHS but for all the sectors involved in helping young people access appropriate and effective mental health care. The Government’s commitment of additional funding is very welcome and the development of transformation plans in this area is promising, but there is still much to do to ensure that the additional funding is spent to best effect. Will the Department of Health and NHS England therefore commit to publishing an annual progress report on the implementation of Future in Mind?

19:40

[Lord Patten (Con)]

My Lords, parity of esteem between physical and mental illness within the NHS is easier to parrot than to achieve, yet its achievement is morally, personally and practically vital, with an urgency no clearer seen than within young people with mental health problems, as the noble Baroness, Lady Tyler of Enfield, pointed out. It is morally vital because it is always a wrong to sideline or neglect one health problem versus another; personally vital because a young person helped through will be a happier young person, just like someone cured of a physical disease or a crippling condition; and practically vital because better care for the mentally ill young should diminish the need later for physical healthcare because of harmful drinking, drugs, obesity, self-harming, risky personal behaviour and all the rest. Therefore it makes pretty good pragmatic common sense, and if handled in this way will enable young people to improve their contribution to the way we live now. Of course, at its most utilitarian—I am sometimes utilitarian—it will also save money in the medium and longer term, which makes much economic sense for the nation.

Those, therefore, are the three reasons why I am an enthusiast for the direction of travel outlined by this Children and Young People’s Mental Health Task Force report, which has not received the public attention that it might have done had it not been published during the long-run pandemonium of the never-ending general election campaign. However, happily, from my point of view at least, we have a Government with a clear-cut mandate to deal with the long-running problems of young people with mental health. “No health problem sidelined” should be in NHS terms as resonant a phrase as is “No child left behind” in US educational circles. No sidelining—no one left behind.

Since 1945, mental health generally and young people’s mental health in particular has never been in the clearest focus. That is a failure on the part of all of us, at both ends of the Palace of Westminster, over decades. Thus, only perhaps a third at best of young people with a diagnosed mental health problem get full-on treatment, which is too low. Imagine if that was the case for young people diagnosed with cancer, and think of the outcry there would be because help was not available. It is good that so much of the treatment that occurs is of course now outside of longer-stay institutional settings, which I am thoroughly in favour of. However, it is also interesting to reflect that that began only just over half a century ago, back in 1961, when the then Health Minister, Enoch Powell, focused on the asylums of the day, brooded over by those towering chimneys and huge water towers, and started to shut them. However, it took pretty well 20 years after the National Health Service had been founded in 1945 for that process to begin.

We are still in a period of sidelining and stigma for some of the mentally ill young. I find that all the more disturbing, as some 50% of lifetime mental illness starts before the age of 14, and 75% of mental illness overall sets in by the age of 18. Therefore it is no slick judgment on my part to say that our mental health problems as compared to our physical health problems are “young people’s problems” in essence, from when they first set in, unlike most physical problems—although that is sometimes the case for the young, too. If untreated, they roll on into the mental health problems of adulthood, becoming the biggest single cause of disability and, I am also told, the leading single cause of sickness absence in the United Kingdom. Therefore it is a major economic problem. Failure to treat leads to the further compounding of later misery, illness and economic cost. There are lots of moving parts, which are very hard to simplify.

All that must be set against the neo-exponential explosion of additional pressures on young women and men that have grown over the last two or three decades due to the parallel explosion of social media writ large, from innocent selfie to internet troll and back again, leading all too often to mental pressures and, at worst, teenage suicides, that we see among those who started off as mentally ill.

The compounding effects of social media and internet pressures have not yet been fully recognised by wider policy thinkers as they should have been, or by some policymakers. When more results come, they may well point to a growth rather than a diminution of young people’s untreated mental health problems. Perhaps the Minister—if not now, because I have not given him notice, then later by letter—can let us know the Government’s judgment on the effects on mental health caused by the growth of social media, and the relevant studies that should be being done if they are not. It is easy to say, “More research should be done”—it keeps researchers very happy—but we need to know the facts.

These issues have to be dealt with—the noble Baroness, Lady Tyler, has been very generous in her praise for what is happening about funding—within a ring-fenced if huge NHS budget. I do not intend tonight to press for yet more; we must live within our taxpayers’ means—I hope the Minister is pleased with that—and pay our debts. However, I hope that the Minister can give a clearer indication of the next steps that the Government propose within the tight constraints on public expenditure, which I support in full.

19:47

[The Earl of Listowel (CB)]

My Lords, it is a pleasure to follow the well-considered words of the noble Lord, Lord Patten, who of course quite rightly emphasises that there is a moral and an economic case here. The moral case is that unhappy children grow up into very unhappy, miserable adults, and the economic case is that unhappy children grow up into very unhealthy, unhappy and often troubling adults. Of course, the prison system is full of such adults, and that costs the state many tens of thousands of pounds each year per person. I am also very grateful to the noble Baroness, Lady Tyler, for again bringing us back to the issue of mental health, in particular the mental health of children and adolescents. She is indefatigable and I am so grateful to her for her work. I welcome the Minister to his portfolio. I know that it is some time since he took it, but I welcome him, and I look forward to having these discussions with him in future—I hope I can say that.

This is a very timely debate, an observation which I make particularly from my position as vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers. Two important reports have come out this month on looked-after children’s mental health. The first report, A New Vision, came out on 10 June. Enver Solomon, the director of the National Children’s Bureau and co-director of the Alliance for Children in Care and Care Leavers, said:

“The care system is not just about removing children from harmful situations and putting a roof over their heads. Many children in care have been seriously abused or neglected, and rely on local authorities as corporate parents to help them get back on their feet. Ultimately, the care system should help children overcome their past experience and forge the lasting and positive relationships that we know are vital to their future wellbeing”.

The NSPCC also briefed me this afternoon on a report coming out this Monday on achieving the emotional well-being of young people in care. This is the result of work it has done consulting people involved in the NSPCC childline and looking at case studies and at the costs of failing to meet the mental health needs of 13 to 16 year-olds. Therefore, this is a timely debate.

I have three requests to put to the Minister. First, I hope that he might consider arranging a meeting with the leads at the Department of Health and the Department for Education on looked-after children, including himself, if he has the time, together with me and the noble Baroness, Lady Tyler, given her role as chair of CAFCASS, so that we can discuss what practical steps might be taken to improve the mental health of looked-after children.

Secondly, will he look at conducting another survey of the mental health of looked-after children similar to that carried out in 2004? It was a thorough and deep survey published mainly by the Office for National Statistics, and it was very helpful in judging the scale of the mental health needs of looked-after children.

Thirdly, can the Minister say—perhaps he would like to write to me—how our specialist looked-after children’s mental health service provision is performing? There has been a lot of concern that these specialist groups may be suffering under the austerity measures. They are quite expensive to run but they are invaluable. The support that they provide, in particular to children’s homes, can make a big difference. I would be grateful if the noble Lord could write to me on how these groups are doing.

I am very grateful to the authors of this extremely helpful report. As has been said, this Government and, previously, the coalition Government have shown great leadership in looking at mental health and, more specifically and more recently, at child and adolescent mental health. Today, I attended a conference on early intervention and I thought about the importance of the leadership of the right honourable Iain Duncan Smith and Graham Allen MP, as well as others such as Andrea Leadsom MP. Their consistent championing of early intervention over a number of years has raised the matter much higher up the political agenda and has brought in more funding for it. I hope that we will see the same thing in this area through the championing of mental health by various Members of Parliament.

I turn to the report and shall focus on Chapter 6 on care for the most vulnerable. I begin by challenging one particular notion. I am concerned that we sometimes overvalue an evidence-based approach. It is important, but it is also important to value professional judgment—not in some way to fetter our humanity because we are busy waiting for the next piece of evidence-based research to be produced. Perhaps I may pray in aid the experience of Louise Casey. Many years ago when she was the tsar for homelessness, she complained, “I shall be really annoyed if I am presented with one more bit of evidence-based research from civil servants”. Looking at her working in practice, she has vision, experience and understanding, as well as a drive to take things forward. Balancing that sort of approach with an evidence-based approach is most important.

Those on the continent are not very interested in evidence-based approaches or in gathering data. In terms of looked-after children, they have very developed social pedagogues and highly trained and highly qualified reflective practitioners. Fundamental to their training is the ability to make and keep relationships with vulnerable children. Therefore, they learn skills such as cookery, art and music to engage these young people. Theoretically, as we all understand, the key to good mental health and recovery from trauma is the ability to keep and maintain an enduring relationship—to learn to endure in intimacy. Research on the continent into the educational outcomes for looked-after children is very positive, and it appears that the children perform better. Therefore, there is more than one way to approach these things.

I see that my time is about to run out but I want to pray in aid briefly the consultation and liaison mental health model, which is referred to in the report. It is important to provide staff in children’s homes and foster carers with good clinical support. They are the ones who see the children day to day and build relationships with them, so they should be supported on a regular basis by excellent mental health professionals, as the report suggests.

When consulted, children in care say, “I want one person to follow me all the way through care. I don’t want multiple placements. I don’t want multiple social workers. I don’t want multiple schools. I want continuity of relationships”. If this recommendation is adopted, we will see many more healthy young people leaving care. I look forward to the Minister’s response.

19:55

[The Lord Bishop of St Albans]

My Lords, I, too, am grateful to the noble Baroness, Lady Tyler, for introducing this debate, for the excellent work of the task group and for the commitment that Her Majesty’s Government have already made to this area.

I also pay tribute to the many excellent charities that are working in this area. Just round the corner from where I live in St Albans is a small charity. I do not suppose that any of your Lordships will have heard of it. It is called Youth Talk and it was set up some years ago, in 1997, by a local GP after she realised that there was a need for a safe place where young people could come for counselling and support. In the intervening years, more than 2,000 young people have used the service. Every year around 190 young people are seen and up to 50 sessions are offered each week. The service is free at the point of access to all 14 to 25 year-olds. It is one of the many unsung charities in our nation that are offering support in this extremely important area. Alongside the crucial statutory work, we need to think about encouraging the voluntary sector.

However, there is still a great deal to be done. As the former Minister Norman Lamb admitted about a year ago, for children and mental health services the prevalence data were out of date and the commissioning services were fragmented. It is good that some of these deficiencies are now being addressed. Therefore, I am supportive of the proposal in the Future in Mind report that good research in the form of a prevalence survey should be conducted by the Department of Health every five years. That would give us a wide range of data, including factors such as ethnicity and socioeconomic background, with a special emphasis on vulnerable groups.

I want to comment on two other areas. First, I strongly support the recommendation that,

“designated professionals”,

should,

“liaise with agencies and ensure that services are targeted and delivered in an integrated way for children and young people from vulnerable backgrounds”.

We are all aware of the problem of statutory and voluntary agencies working in silos, resulting in young people falling through the net. The troubled families programme has shown us the value of having a champion —a co-ordinator whose role is to focus on getting change and who can draw together all the different parties to ensure that the help can be delivered effectively and consistently. Without such “designated professionals” who are given the appropriate power and resources, it is unlikely that we are going to solve the problems that have dogged this area for such a long time.

I also want to commend to your Lordships’ House a campaign launched last Friday by the Children’s Society called Seriously Awkward. The campaign is based on empirical research of more than 1,000 teenagers of 16 and 17 years of age, and it relates directly to many of the points made in the Future in Mind report. However, it argues cogently that there are a number of areas that need urgent attention. In particular, the campaign points out that the legislation relating to 16 and 17 year-olds is highly inconsistent and is causing problems regarding where they fit and who is responsible for them. We need some clarity in this area. The campaign argues that the Government should establish a right for 16 and 17 year-olds to be entitled to support from CAMHS when they need it. This support must be available as early as possible, and long before mental health needs become acute. It argues that the Department of Health should, as it is in the process of recommissioning a new prevalence study, include 16 and 17 year-olds in that study, and there seems to be some lack of clarity about that.

Tailored information should be produced by CAMHS providers about mental health symptoms and conditions for adolescents to support them in understanding their experiences. Information also needs to be available to their families, to help them both in parenting adolescents appropriately and meeting their emotional needs. In addition, services working with vulnerable adolescents should consider their mental health needs within the family context and offer appropriate support to the young person and their family, working together.

Local authorities and health and well-being boards should evaluate the levels of mental health support available to vulnerable groups of young people. The commissioning of effective mental health services needs to be underpinned by robust and reliable data on the use of mental health services, particularly by vulnerable groups.

Finally, at present, support for victims of child sexual abuse is often dependent upon children displaying symptoms of diagnosable conditions. Child victims should, as a matter of course, receive support to help them overcome the trauma of abuse. Therefore, what are the Government doing to ensure that older adolescents have access to mental health support? Will the Government ensure that 16 and 17 year-olds are included in the upcoming mental health prevalence study of children and young people’s mental health? Will the Government ensure that some of the additional funding is ring-fenced to ensure that victims of child sex abuse have access to mental health support?

20:01

[Baroness Walmsley (LD)]

My Lords, I congratulate my noble friend Lady Tyler of Enfield on introducing this important debate. We have heard some very thoughtful speeches, ranging widely across the subject. My noble friend called for wise spending of very scarce resources and emphasised the need to consult children themselves and their families when putting together the transformation plans that are so important. She called for better access to services for young people, particularly the most vulnerable groups, and for some monitoring as to how well we are doing through an annual report.

The noble Lord, Lord Patten, emphasised the importance of parity of esteem for physical and mental health and called for early intervention. He was particularly concerned about the effects of social media on young people—something that of course did not affect your Lordships when we were growing up.

The noble Earl, Lord Listowel, in his usual way championed, as he has done so wonderfully over the years, looked-after children. He called for services to take account of their particular vulnerability to mental health problems and their need for emotional well-being, which they may well not have grown up with given their difficult backgrounds.

The right reverend Prelate the Bishop of St Albans talked about the good work of charities. He called for more data about prevalence and emphasised the difficult position of 16 and 17 year-olds being very inconsistent in legislation.

For my own part, like the noble Lord, Lord Patten, I am particularly interested in the prevention of mental health problems. Like him, I believe that that is the cost-effective approach. There is so much evidence that perinatal mental health, proper parental attachment and early intervention are not only more effective for the human beings involved but more cost effective for the taxpayer. So I welcome those elements of the report that focus on early intervention.

My noble friend emphasised perinatal mental health services, and I would like to start by asking the Minister what progress has been made on the recommendation that there should be a specialised mental health clinician available to all perinatal units by 2017? How much emphasis is given in antenatal classes, for example, to making mothers aware that they need to focus on their own well-being, minimise stress and ensure that they bond well with their baby when it arrives? One cannot start too early when fostering good mental as well as physical health.

There are some excellent charities working in this field, such as OXPIP, which focus on good attachment. They have learned many lessons about what works well in relation to identifying poor attachment and addressing the situation. What is being done to ensure that these lessons are being used all over the country?

The report focused on the need for early support initiatives, and it is clear that health visitors are key to this ambition. However, some health visitors have been in the profession for many years. Although their long experience is enormously valuable, since it allows them to develop deep knowledge and good judgment, it may also mean that they have not had time in their busy schedule to keep up with the latest on early intervention. Can the Minister assure us that they will be allowed enough time for this sort of continuous professional development?

Learning the lessons of what works is a key element of the new HeadStart initiative funded by the Big Lottery Fund and this is to be very welcomed. The project is focused on a key group, those aged between 10 and 14, to better equip them to deal with difficult life experiences and develop their resilience as protection against future events that might damage their mental health. Since half of all adult mental health patients first had problems before they were 14, this is exactly the right target group. Although £75 million sounds like a lot of money, there is a big task ahead. I understand that 12 pilot projects are under way, providing early support to children who need it, both in and out of school. Lessons learned will be shared with schools, youth groups and decision-makers. Partners include, as they should, GPs, local authorities, schools, youth groups et cetera. Some of these are used to working in partnerships, but others are not—I hope that the worst come up to the standard of the best.

Schools, of course, play an enormous role. With others in your Lordships’ House, I have long called for compulsory PSHE in schools, starting early in an age-appropriate way. Some people think that we are just talking about sexual health and relationships, but we are not. We are talking about developing self-esteem, self-confidence and resilience, as well as the life skills and knowledge to help the child cope with the modern world when he or she leaves school. Will the Minister go back to his colleague the Secretary of State for Education—who I think has more of an open mind about the matter than her predecessor—and encourage her to change the Government’s mind about this, because it is a vital weapon in our armoury against the epidemic of mental health issues among young people?

The task force also recommended that there should be a CAMHS contact in all schools. Earlier this year, the Department for Education proposed to implement pilot schemes in 15 areas. Can the Minister say whether this has begun and how the schemes’ success will be assessed, since we have heard nothing about it since March?

Many schools, of course, are not waiting for government to catch up. They have counsellors, anti-bullying programmes and partnerships with excellent organisations, such as Place2Be, which does wonderful work in schools at a very moderate cost. However, it is not easy for hard-pressed head teachers to find a room for them to work in and the small amount of money to fund their programmes.

The noble Earl, Lord Listowel, talked about the importance of training those professionals who work with looked-after children. But I have become very concerned just recently to realise how few doctors are trained in psychiatry in their initial training. Given that one quarter to 50% of patients presenting to GPs have mental health problems at the root of their illness, it really is important that we have some consistency across the training of doctors in this country, and in particular those Jacks of all medical trades, the very important GPs working in primary care.

I await the Minister’s response with interest, particularly on those questions about prevention.

20:08

[Lord Bradley (Lab)]

My Lords, declaring my health interest, I also congratulate the noble Baroness, Lady Tyler of Enfield, on obtaining this short debate and her excellent contribution to it, and thank noble Lords for all the excellent contributions to this debate this evening.

Child mental health is rightly now very high on the health agenda and there is a huge interest in mental health among the public, for both children and adults, as an ambition for parity of esteem between physical and mental health is progressed.

I shall give just a few facts and figures. According to the 2004 data—the most recent available—one child in 10 has a mental health problem. About half of those children, 5% of all children, meet the criteria for a diagnosis of conduct disorder: severe and persistent behavioural problems. A further 15% of children have a mild or moderate behavioural problem that has an impact on their future health and life chances.

Mental health problems during childhood tend to continue into adult life, especially if untreated. Children with behavioural problems also experience poor outcomes in school and in employment and have a high risk of getting involved in crime as young adults.

However, it is estimated that only 25% of children with a mental health problem get treatment of any kind. As we have heard, the previous Government’s response was the creation of the mental health task force, which reported in March 2015. Its excellent report, Future in Mind, was a template for change in services for children and young people. It made 49 recommendations for better support for children’s mental health. They included far-reaching changes to CAMHS provision, greater emphasis on the role of schools and earlier intervention when children become unwell. Crucially, it called for every local area to be required to produce a transformation plan for improved children’s mental health care.

It is very welcome that in the March Budget investment of £1.25 billion was announced, to be provided over five years. That is £250 million a year for CAMHS, perinatal mental health care and employment support for adults. It equates to only about £1 million per clinical commissioning group per year. I would be grateful if the Minister would comment on whether he is confident that this is a sufficient injection of funds for each CCG to meet Future in Mind’s 49 recommendations at a local level.

As we have heard, plans have also been announced for a new prevalence survey for children’s mental health, replacing the 2004 data which are still in use. Again, this is very welcome and will allow for much more effective and efficient planning of the range of services required for children and those in transition to adulthood.

Another welcome move is the banning of the use of police cells for children detained under Section 136 of the Mental Health Act. I am very pleased that the Minister assured the House that the use of police cells would be at zero by 23 June 2016, but will he also ensure that open adult psychiatric wards are not used as places of safety for children instead of police cells?

While the Future in Mind report is welcome, how will the Government ensure that it is implemented in full across the country? Will it be given a prominent place in the next NHS mandate, and how will local areas be held to account for producing and implementing robust transformational plans? Such plans will be crucial if we are going to make a step change for child and adolescent mental health services at a local level.

Most importantly, will the Government set out clear expectations of schools to promote mental health—for example, through social and emotional learning—and empower Ofsted to include it in its inspections? Should we perhaps follow the example of Wales and make access to counselling mandatory in secondary schools? My own report on mental health and the criminal justice system made clear the importance of mental health awareness training for all staff in schools, but, obviously, principally teachers—not to become experts in mental health but to be effective passporters of children to appropriate CAMHS or other services before their health problems may lead them into trouble.

I also commend the Big Lottery Fund’s HeadStart scheme that the noble Baroness, Lady Walmsley, rightly pointed to and its investment of £75 million in 12 trial sites. This is an important new intervention which will be monitored and, I hope, rolled out more broadly as a consequence.

Finally, perhaps I may ask the Minister about parenting programmes, as recommended by NICE. These have been found to be extremely effective in addressing conduct disorder, as I identified earlier. The cost of such programmes is estimated to be just £1,750 per child, against a lifetime cost of not taking action of £175,000 per child. Can the Minister therefore explain the logic behind the Government’s decision to cut the public health budget by £200 million, a budget which helps fund such programmes?

This debate on the task force’s key recommendations is important and timely. I know that all interested Members in this House will ensure that we monitor the implementation of its key recommendations to ensure that children and adolescents benefit in future from a much more effective mental health service.

20:16

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, I congratulate the noble Baroness, Lady Tyler, on securing this important debate. Mental health is a key plank of this Government’s health policy and will certainly be highlighted in the mandate given to NHS England. Whether or not there will be an annual report, I can assure the noble Baroness that there will be clear progress reports on implementation.

A number of noble Lords said in relation to parity of esteem that words are cheap. The noble Lord, Lord Patten, said that we have parroted those words for far too long without putting resources behind them. Even after this new investment, if one today compares the kind of treatment that young children receive if they have cancer with the kind of treatment they get for severe psychosis or eating disorders, even though it may no longer be a Cinderella service I am afraid that the tag “Cinderella” would still be there until we have proven otherwise.

I am happy to confirm this Government’s commitment to transforming children and young people’s mental health and well-being. The Future in Mind report, published on 17 March, sets out a clear consensus and vision for improving services. In the foreword to that report, the NHS England chief executive, Simon Stevens, said:

“However in taking action there are twin dangers to avoid. One will be to focus too narrowly on targeted clinical care, ignoring the wider influences and causes of rising demand, overmedicalising our children along the way. The opposite risk would be to defuse effort by aiming so broadly, lacking focus and ducking the hard task of setting clear priorities”.

There is a real danger that one could fall between those two stools if one were not careful.

I can confirm that there will be an additional £1.25 billion allocated for improving children’s and young people’s mental health over the lifetime of this Parliament. This is in addition to the £150 million announced in the autumn Budget. The noble Lord, Lord Patten, and others made the important point that we are talking with mental health not only about a human tragedy but about a huge economic waste as well. On both counts this should be a major priority for this Government.

The first step in delivering the vision set out in Future in Mind will be the development of local transformation plans which will be produced collaboratively by local areas. The right reverend Prelate the Bishop of St Albans and the noble Baroness, Lady Walmsley, both mentioned the importance of local charities and voluntary groups in this area. We will not in any way ignore the vital role that they play. I am not familiar with the work of HeadStart, to which the noble Baroness and the noble Lord opposite referred, but I would like to find out about it after this debate. These plans will have an emphasis on local partnering and joint commissioning. I take on board the noble Lord’s comments about the number of different CCGs. When one spreads the money around CCGs it does not look all that much. I am not sure whether the noble Lord is suggesting that we should reduce the number of CCGs or increase the money.

NHS England and the De[apartment of Health are working with partners to jointly produce national guidance to support local areas to develop these plans. NHS England aims to publish its guidance in July.

I was struck by two comments in Future in Mind by two young people. One was:

“You have to fit into their paths and none of their paths fit you”.

The other was:

“Mental health isn’t a one size fits all treatment, it really depends on the person”.

The right reverend Prelate the Bishop of St Albans laid particular stress on the importance of co-ordinated care.

The Care Quality Commission report, From the Pond into the Sea, highlights the complexity and cliff edge that many children experience as they transition from children’s to adult services. We should be particularly focused on this area.

As well as the development of the local transformation plans, I am pleased to say that progress is also being made against many more of the Future in Mind proposals. We are expanding the highly regarded Children and Young People’s Improving Access to Psychological Therapies programme. This is due to increase access and coverage across England from 68% to 100% by 2018.

We are introducing waiting times. In particular, this will include a target of treatment within two weeks for more than 50% of people of all ages experiencing a first episode of psychosis. It was here that I thought that if you substituted “psychosis” for the word “cancer”, we would not be standing here feeling all that good about ourselves. It is not enough, but it is a start. It will go some way to help reduce the number of young people having to wait an unacceptable length of time to access services.

The noble Earl, Lord Listowel, and a number of noble Lords mentioned the prevalence study produced in 2004. We are doing a new prevalence study, as the noble Earl will know. One of the differences with the new study is that it will pick up the impact of social media on young people, which was not there in 2004—a point made by my noble friend Lord Patten. It will include 16 to 17 year-olds and older children as well.

We know that schools have a hugely important role to play in supporting and promoting good mental health. The noble Baroness, Lady Walmsley, raised the question of whether Ofsted in its inspections could look at the liaison with mental health services. The noble Baroness, Lady Tyler, pointed out the good work that is being done by Kingston Council. I will raise the issue of Ofsted with the Department for Education.

The noble Lord opposite raised the issue of the use of prison cells and Section 136. We covered that in a previous debate, so I will leave it today if I can.

We are working with the Department for Culture, Media and Sport to explore how we can better support and protect young people online to prevent damaging experiences and better support distressed users. We are also looking at how we can better use the internet and digital devices to provide clear information and advice to young people in an accessible and familiar environment.

A number of noble Lords raised the issue of vulnerable groups. We must ensure that the benefits of this transformation are felt by all children and young people. I was interested in the particular example mentioned by the noble Baroness, Lady Tyler, of a young man called Jay and the beneficial impact that a youth worker can have on a young person with complex and difficult issues. That gelled with a comment made by another noble Lord who said that we must not always be looking for evidence—rather, we must allow professional judgment to have full sway. Vulnerable groups include people from black and minority ethnic backgrounds who, as outlined in the 2014 report of the Institute for Health and Human Development, face additional barriers to mental well-being.

Perhaps I may briefly address the other two points made by the noble Earl, Lord Listowel. Of course I will be very happy to meet the noble Earl outside the Chamber to talk about looked-after children, particularly in the light of the NSPCC report to which he referred in his remarks. I have not seen it yet—I think that it comes out in a few days’ time. I will write to him about the other issue that he raised.

I turn back to prevention. The social and economic case for prevention and well-being promotion is set out clearly in Future in Mind and will form an important part of the Government’s work. There is no doubt that early intervention is crucial. I was struck by the remark made by the noble Baroness, Lady Tyler, that it is five times more likely that a child will suffer from depression later on if their mother suffered from perinatal depression. That is a new statistic for me and more evidence that you cannot do enough for people when they are very young. I shall quote from Future in Mind:

“We can all look out for those children and young people who might be struggling right now. We can confront bullying and we can make it OK to admit that you are struggling with your mental health. We can end stigma. And we can support our friends in their treatment and recovery”.

My noble friend Lord Patten raised the issue of stigma. It is a lot better than it used to be, but, again, there is much more that we can do.

The Department of Health is currently working with other delivery partners to develop the collaborative partnering required to co-ordinate delivery of this important work. We will continue to drive forward transformation across children and young people’s mental health and well-being, delivering system-wide and sustainable transformation for all children and young people across England. I can assure all noble Lords that the issue of young people’s mental health is very important—it is hard to think of a more important issue facing the Department of Health, or indeed a more difficult challenge because these are not easy issues. The right offer, available in the right place and at the right time, delivered by a workforce with the right skills and knowledge, are all essential if we are to deliver this important report into reality.

Again, I thank the noble Baroness, Lady Tyler, for securing this important debate. If I have not done justice to all the questions that have been raised, I am happy to meet noble Lords outside this Chamber or to write to them.

20:27

Sitting suspended.

Psychoactive Substances Bill [HL]

Tuesday 30th June 2015 Lords Chamber

Committee (2nd Day) (Continued)

20:30

Clause 11: Meaning of “prohibited activity”

Amendment 52 not moved.

Amendment 53

Moved by

[Baroness Hamwee]

53: Clause 11, page 6, line 10, leave out paragraph (f)

[Baroness Hamwee (LD)]

My Lords, I shall also speak to Amendment 54. This takes us back to Clause 11, particularly subsection (1)(f), which makes,

“assisting or encouraging the carrying on of an activity listed in”,

the previous paragraphs a prohibited activity. Our first concern, which we dealt with in Amendment 54, was that this should not prevent information or education, in the very widest sense, about psychoactive substances. The approach of informing and supporting people who are taking or considering taking psychoactive substances might include support for reducing their consumption rather than cutting it out, or gentle direction towards the use of what might be thought less-harmful substances. I was reminded of what I might call the dark days of Section 28 regarding the promotion of homosexuality; there was a sort of resonance there that I wanted to pick up on. Amendment 54 would provide that advice and information was not to be a prohibited activity, even though I accept that some noble Lords might think of advice and information in a slightly different way from what we envisage.

Then I wondered why this was necessary at all. What happened to aiding and abetting, and what about Sections 44 and 45 of the Serious Crime Act 2007, which deal with intentionally,

“encouraging or assisting … an offence”?

Are they not adequate? Do we have to provide something specific? Section 44(2) says that the person,

“is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.

I am sorry, I have not introduced this very well, but my question is not only why Section 44 does not apply but whether there is a deliberate exclusion of Section 44(2) regarding the not foreseeing of the consequence of the act. I would be concerned if that was not to apply. I beg to move.

[Lord Howarth of Newport (Lab)]

My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,

“the provision of advice or information … shall not be a prohibited activity”.

We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.

[Lord Tunnicliffe (Lab)]

My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.

I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.

Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.

If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.

The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.

Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.

The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, I certainly will. I am grateful for that explanation. I can understand the structure of the clause and its thrust rather better than I did, which was pretty stupid of me. When I looked up “aid and abet” on the internet to see what that told me, I was pointed straight to the CPS guidance, which seemed to deal with pretty much everything other than aiding and abetting. It starts with “assisting and encouraging”, so it is hardly surprising that some of us are confused. I did not know that there was such a major debate going on in the legal community; they must speak of little else. I am grateful for the clear explanation; I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Amendment 54 not moved.

Clause 11 agreed.

Clause 12: Prohibition notices

Amendment 55

Moved by

[Baroness Hamwee]

55: Clause 12, page 6, line 23, at end insert—
“( ) In the case of reasonable belief under subsection (3) that the person is likely to carry on the activity, the prohibition notice must set out the reasons for that belief.”

[Baroness Hamwee]

My Lords, in moving Amendment 55 I will speak to Amendments 58 and 60B in my name and that of my noble friend. The first amendment would add to one of the two conditions required for a prohibition notice not only that there must be a reasonable belief that a person is carrying on or likely to carry on a prohibited activity but that the notice must set out the reason for that belief. Clearly, that person should know the basis of it. I realise that this might be covered by Clause 14(2)(a), but I would be glad to have confirmation of that.

Amendment 58 is similar but in the context of a premises notice. Amendment 60B to Clause 14(2)(b)—where we are told that the notice,

“must … explain the possible consequences of not complying”,

with it—would add,

“based on the grounds in paragraph (a)”.

This is probing the extent of Clause 14(2)(b): what it is expected to cover, in what detail, and so on. I beg to move.

20:44

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, as the noble Baroness explained, these amendments relate to the issuing of a prohibition notice and a premises notice under Clauses 12 and 13.

I begin by saying that the Government fully support the principle of these amendments, so much so that the Bill already contains similar provisions which seek the same thing. A prohibition notice can be issued under Clause 12 where a,

“senior officer or local authority reasonably believes that the person is carrying on, or is likely to carry on, a prohibited activity”,

and,

“that it is necessary and proportionate to give the prohibition notice for the purpose of preventing the person from carrying on any prohibited activity”.

A premises notice in Clause 13 can be issued where a senior police officer or local authority reasonably believes that a prohibited activity, as defined in Clause 11,

“is being, or is likely to be, carried on at particular premises, and … the person owns, leases, occupies, controls or operates the premises”.

Amendments 55 and 58 seek to amend Clauses 12 and 13 respectively to require the relevant senior police officer or local authority to set out the reasons in support of their reasonable belief that the respondent is carrying on, or is likely to carry on, a prohibited activity.

Clause 14 contains supplementary provisions in respect of prohibition notices and premises notices. In particular, subsection (2)(a) of Clause 14 requires that a notice must,

“set out the grounds for giving the notice”,

as well as the consequences of failure to comply. The Government envisage that the grounds specified in the notice will be those supporting the reasonable belief.

Amendments 57 and 60 seek to ensure that the respondent is fully informed of the consequences of a failure to comply with a notice. Again, this is already addressed in Clause 14—the relevant provision being in subsection (2)(b).

In relation to Amendment 60B, the possible consequences of a failure to comply with a notice are unlikely to vary according to the grounds on which a notice was issued. Essentially, the possible consequences are twofold: either a prosecution is pursued for the relevant offence in Clauses 4 to 8 of the Bill, or the relevant law enforcement agency makes an application for a prohibition order or premises order, as appropriate. On the basis that the Bill already delivers the outcome sought by these amendments, I trust that the noble Baroness, Lady Hamwee, will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful for that response. The Minister’s comment that the explanation in the notice would vary according to the circumstances is an interesting one which I welcome because standard-form official explanations which are not designed for particular circumstances are often pretty much unreadable. One cannot necessarily work out quite how they apply. I hope that by highlighting that, I am not causing the hearts of people outside the immediate part of this Chamber to sink with the extra work that might be required in that regard. I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

Amendment 55A

Moved by

[Baroness Hamwee]

55A: Clause 12, page 6, line 31, leave out from “notice” to end

[Baroness Hamwee]

My Lords, in moving Amendment 55A, I will speak also to Amendments 60A and 71A, which stand also in my name and that of my noble friend. Again, the amendment deals with notices.

Amendment 55A would apply Clause 12(6) to people over 18 as well as to those under 18, and would mean that a prohibition notice must specify the period for which it is to have effect—certainty, although in a slightly different context, is something which we have touched on a good deal during the passage of this Bill—and that it must not have effect for more than three years.

I cannot envisage circumstances in which it would be appropriate to apply a prohibition notice to anybody for more than three years. I have my doubts about prohibition and premises notices anyway, but if there is a need to apply a prohibition notice for a longer period, surely the circumstances must be such as to suggest that there should be a prosecution—something rather tougher than a notice. At any age, certainty is important. Amendment 60A would apply both certainty and a statutory maximum to a premises notice.

In neither case has an offence been proved. I cannot see what a notice might do that would not be available under other legislation, particularly anti-social behaviour legislation such as a community protection notice. What is achieved by providing that somebody knows that he should not commit a crime and that the police and the local authority have got their eye on him? In a way, a premises notice is more important. I am assuming that if we are talking about head shops the intention is permanent closure. But the straightforward, honest course would be to address that directly with a proper hearing, giving the recipient of the notice more of a chance to deal with his business interests and have his representations heard in a proper way. I am concerned about the extent there.

Amendment 71A would add that what the court should do in an order should be proportionate as well as appropriate. I assume that that is implied because what courts do almost by definition has to be proportionate—but I am seeking confirmation of that at this point. I beg to move.

[Lord Tunnicliffe]

My Lords, I have some limited sympathy with these amendments. Any notice that has indefinite extent, which seems to be where the Bill is, has a certain discomfort about it. Clearly the Government share this discomfort because they are limiting the period of extent to three years for under 18 year-olds. I cannot see, having accepted that indefinite extent is inappropriate for under 18 year-olds, why it should not be inappropriate for those over 18. “Proportionate” is a word we all like to move around in legislation. I found that the Government have used it quite freely throughout the document. I will be interested in their response to Amendment 71A as well.

[Baroness Chisholm of Owlpen]

My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.

Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.

Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.

On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.

Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.

[Lord Howarth of Newport]

Did the Minister mean the Human Rights Act 1968 or that of 1998?

[Baroness Chisholm of Owlpen]

I meant to say 1998.

[Baroness Hamwee]

My Lords, I cannot say that I am comfortable about notices applying for an indefinite or unlimited period. There may be concerns about the detail of the notice. I obviously need to read the noble Baroness’s explanation. I should also wait to see what response we get to my later amendment, which is on appeals against notices. These issues all go together, and I would like then to consider where we have got to in the round. I beg leave to withdraw the amendment.

Amendment 55A withdrawn.

21:00

Amendment 56

Moved by

[Baroness Chisholm of Owlpen]

56: Clause 12, page 6, line 35, leave out “police officer (or, in Scotland, a constable)” and insert “constable”

[Baroness Chisholm of Owlpen]

My Lords, the amendments in this group make a number of changes to the provisions in the Bill relating to notices and orders. The most significant amendments—Amendments 75, 76 and 77—insert three new clauses which make further provision in respect of access prohibitions.

Clause 21 enables a prohibition order or premises order to include an access prohibition, barring or restricting access to specified premises. Such a provision would, for example, enable the closure of a head shop selling psychoactive substances, initially for up to three months. This approach is based upon the provisions in the Anti-social Behaviour, Crime and Policing Act 2014 relating to anti-social behaviour closure powers. Although a number of elements of that regime are already in the Bill, the Government feel that a number of additional elements of the 2014 Act should also be replicated.

For the civil sanctions in the Bill to be effective, they must be adhered to. Therefore, sanctions must be included to deter those who would otherwise choose to breach the terms of an access prohibition.

The other amendments are largely of a technical or drafting nature, and I would be happy to provide further details if necessary. I trust noble Lords will agree that these are all sensible refinements to the existing provisions in the Bill and on that basis I beg to move.

[Baroness Hamwee]

My Lords, I have one or two questions on the amendments in this group. Amendment 75 deals with reimbursement of costs. Would the person being asked to make the payment have the opportunity to make representations with regard to what is being claimed—both about the principle and the amount that has been calculated and ordered?

Amendment 76 inserts a new clause on exemption from liability and refers to,

“an act or omission shown to have been in bad faith”.

I note that that does not extend to negligence. I looked at the Anti-social Behaviour, Crime and Policing Act, and we do not have negligence in there either, but it does not seem to me that not having it in that Act makes this right.

It is not quite a read-across, but Amendment 77 again applies similar provisions to those in the Anti-social Behaviour, Crime and Policing Act. Something struck me about this while reflecting on what happened during the last Government and the focus on the rehabilitation revolution and so on. I thought we were trying to avoid short-term prison sentences, and it felt uncomfortable to be providing for short-term prison sentences when we know that so often what happens is that the offender learns more about how to commit crime than he does about how not to commit crime.

[Baroness Chisholm of Owlpen]

My Lords, I reassure the noble Baroness that Amendment 75 makes provision to enable the relevant law enforcement agency to apply to the appropriate court for reimbursement of costs incurred in relation to the “clearing, securing or maintaining” of premises.

Amendment 76 makes provision to exempt the relevant law enforcement agency from civil liability for anything done or admitted to be done in the exercise of a power in relation to an access prohibition. The exemption does not apply when the act or omission was committed in bad faith or when the conduct was unlawful by virtue of Section 6(1) of the Human Rights Act 1998, acting incompatibly with the convention rights.

Amendment 77 creates an offence for a person, without reasonable excuse, to remain on or enter premises in contravention of an access prohibition or to obstruct an authorised person exercising powers under Clause 22(1). I understand the noble Baroness’s worries about the maximum penalty in England and Wales of six months’ imprisonment. I might need a little inspiration from my officials on that one, but perhaps we could write to the noble Baroness and make that a bit clearer.

[Baroness Hamwee]

This is really a broad matter of policy, and I appreciate that the provision on length of sentences replicates part of the Anti-social Behaviour, Crime and Policing Act 2014, although there are also provisions in there for different periods. I should have given the Government an indication of these questions, but I am afraid that I did not think of them until very shortly before we came into the Chamber. This may not be consoling to the noble Baroness, but I was listening in on a rather high-powered legal discussion the other day, where someone referred to what the Minister thought at four in the morning when questioned—

[Baroness Chisholm of Owlpen]

I am sorry to interrupt the noble Baroness, but I have a bit of clarification about Amendment 77. Six months is the standard maximum in a magistrates’ court.

[Baroness Hamwee]

I shall not continue with the anecdote, because I was only giving the noble Baroness an opportunity for inspiration to fly to her. I might tell her later.

Amendment 56 agreed.

Debate on whether Clause 12, as amended, should stand part of the Bill.

[Lord Howarth of Newport]

My Lords, I take this opportunity very briefly to raise an issue with the Minister which applies in Clause 12 and in a range of clauses going through to Clause 22. These clauses would create powers of enforcement action to deal with prohibited activity, in prohibition notices, premises notices and orders. Among the authorities so empowered will be local authorities, and I imagine that among their staff on the front line of enforcement will be trading standards officers. Will the Minister clarify what the Government expect of trading standards officers? Presumably they will have a role in closing down head shops and online sites if they are in their locality.

When the All-Party Parliamentary Group for Drug Policy Reform held its inquiry, we received rather impressive evidence from representatives of the trading standards officers profession. They explained to us—this was a couple of years ago—that they lacked the powers to tackle the problem of psychoactive substances in their localities. This Bill would endow them with a considerable range of powers and duties. I do not know whether other noble Lords have received a copy of the trading standards journal, TS Review, which landed on my desk quite recently. It is a very impressive publication, which emanates from the trading standards officers profession—beautifully produced, and full of good sense. I learned quite a lot from perusing it, such as the fact that the number of trading standards officers has fallen by 45% since 2009, and that training budgets for them have been cut.

Professor John Raine is quoted from a publication entitled The Impact of Local Authority Trading Standards in Challenging Times. He said that trading standards services,

“have lost much of their resilience”,

and specialist knowledge. Sylvia Rook is quoted as saying, rather sadly:

“If you’ve only got 4 staff in your Trading Standards service, there is no option—staff have to be generalist”.

Noble Lords will recall the debates we had on the problems of definition and identification of psychoactive substances—about whether a substance is psychoactive and, if so, what exactly it is. These powders look pretty much alike. Karin Layton is quoted as saying:

“Generic officers won’t be able to stand up in court and give evidence effectively”.

If that is so, the anxiety is that cases will collapse in court.

As it is, trading standards officers have a colossal workload. They are enjoined to enforce some 250 pieces of legislation before they get to this new legislation or, indeed, to the Bill whose First Reading was moved by my noble friend Lord Rooker earlier today to provide for a proportion of folic acid to be included in bread. The sort of things that trading standards officers must deal with include nuisance callers on the telephone, purveyors of horsemeat and underage purchases of alcohol. There is an excellent section within this publication entitled “Saving Lives: The Health Benefits of Disrupting Alcohol and Tobacco Sales to Underage People”, a subject we debated this afternoon. They must deal with fraudulent energy efficiency salesmen, animal welfare, weights and measures —which has always been their classic role—the defence of intellectual property rights, e-crime and the enforcement of consumer contracts regulations.

The trading standards officers’ profession is determined to cope; these are good, public service, professional people. They are debating among themselves whether, in the circumstances of austerity, there will be a need to design new regional structures so that the work of generalist TSOs can be supported by specialist TSOs. That all represents a very constructive approach on their part but there is clearly a long way to go. It will be very difficult for them to fulfil the tasks that are provided for in Clause 12 and subsequent clauses. Therefore, I would be grateful if the Minister would comment on how realistic the Home Office and the Government are being in asking trading standards officers to do yet more. It is a common weakness of Governments to will the ends but not the means, so I would be grateful for the Minister’s comments.

[Lord Bates]

I am grateful to the noble Lord for giving us an opportunity to look at this important area of trading standards. We expect businesses currently openly selling psychoactive substances to comply with the new law. We will be working with the police and local authorities in the lead-up to the provisions coming into force—which we aim to have happen on 1 April 2016 —to ensure that head shops and online traders operating in the UK are in no doubt that they must clear their shelves of these substances and clean up their websites by 31 March. If they do not, they can expect an early visit from the police or a local authority officer. For those who fail to comply with the law, prohibition orders will offer one possible tool with which law enforcement agencies can respond.

I am very much aware of the excellent work that trading standards officers do around the country. I have noticed their work many times, particularly in my former constituency, where they did tremendous work. Local authorities have overall responsibility for public health and spend around 25%—£760 million—of their health budget on dealing with drug and alcohol misuse. The introduction of the ban should reduce this expenditure, allowing councils to use funds to tackle other public health priorities. If it were the Government saying that, I would expect the noble Lord to say, “I’m not too sure about that”. In fact, the LGA is saying just that. It sees this as assisting councils in focusing on the other real problems in their areas which need to be tackled. Far from incurring cost, it sees the blanket ban as easing pressure.

The shop in Canterbury which I keep referring to, which is just across the road from the King’s School, was closed down by trading standards and reopened under a different name. As we have said all the way through, this kind of whack-a-mole game of cat and mouse that is going on between law enforcement agencies and the purveyors of new psychoactive substances goes to the very heart of what the Bill is about.

22:09

[Lord Howarth of Newport]

I am grateful to the Minister. The story he has just told about Canterbury illustrates the difficulty and expense that local authorities are going to incur in seeking to implement the ban that the Bill would create. We know that the Local Government Association is very keen to see head shops closed down, and we understand why that is so. I am perplexed about how it can argue that it will save local authorities money. A lot of activity is enjoined upon them in this measure. I do not know whether the Minister has interrogated it about the basis on which it gives this assurance that it will save local authorities money during the enforcement period. I can see that if they were successful in closing down the head shops then they might have less to do in this regard; but in the transition, while they are actually engaged in these enforcement activities, surely it will cost more money. I would be grateful for the Minister’s further thoughts, perhaps not this evening but in due course, on how local authority trading standards departments are to perform the duties that the Government are laying upon them at a time when there has been such a decrease in the number of trading standards officers and in the budgets of local authorities, in particular, in the budgets for training TSOs.

[Lord Bates]

I reassure the noble Lord that evidence is coming from those in the front line, such as the police, who spend a great deal of time dealing with the side effects of these establishments, such as anti-social behaviour in the vicinity of these shops. We hear from the Local Government Association that it believes that a disproportionate amount of time is spent trying to tackle and regulate what they are doing. That could be spent elsewhere doing worthwhile things in the area of health. We may not disagree, but I will certainly reflect on the noble Lord’s important point about trading standards. We certainly want to make sure that we are working very closely to ensure that this is effectively implemented.

Clause 12, as amended, agreed.

Clause 13: Premises notices

Amendments 57 and 58 not moved.

Amendment 59

Moved by

[Lord Bates]

59: Clause 13, page 7, line 12, leave out “prohibition” and insert “premises”

Amendment 59 agreed.

Amendments 60 and 60A not moved.

Clause 13, as amended, agreed.

Clause 14: Prohibition notices and premises notices: supplementary

Amendment 60B not moved.

Amendment 61

Moved by

[Lord Bates]

61: Clause 14, page 7, line 31, at end insert “acting on behalf of the same person as that officer”

Amendment 61 agreed.

Clause 14, as amended, agreed.

Clause 15: Means of giving notices under sections 12 to 14

Amendments 62 to 64

Moved by

[Lord Bates]

62: Clause 15, page 7, line 41, at end insert “, or
( ) subject to subsection (8), sending it to the person by electronic means.”

63: Clause 15, page 8, line 9, after second “the” insert “address of the”

64: Clause 15, page 8, line 20, at end insert—
“(8) A notice may be sent to a person by electronic means only if—
(a) the person has indicated that notices of the same description as a notice under section 12, 13 or 14 (as the case may be) may be given to the person by being sent to an electronic address and in an electronic form specified for that purpose, and(b) the notice is sent to that address in that form.(9) In subsection (8) “electronic address” means any number or address used for the purposes of sending or receiving documents or information by electronic means.”

Amendments 62 to 64 agreed.

Clause 15, as amended, agreed.

Amendment 64A

Moved by

[Baroness Hamwee]

64A: After Clause 15, insert the following new Clause—
“Appeals against notices
(1) A person issued with a prohibition notice or a premises notice may appeal to a magistrates’ court against the notice on any of the following grounds—
(a) that a prohibited activity or the prohibited activity specified in the notice—(i) has not been carried on,(ii) is not likely to be carried on, or(iii) in the case of a premises notice, is conduct that the person cannot reasonably be expected to control or effect;(b) that there is a material defect or error in, or in connection with, the notice;(c) that the notice was given to the wrong person.(2) An appeal must be made within the period of 21 days beginning with the day on which the person is given the notice.
(3) While an appeal against a notice is in progress—
(a) a requirement imposed by a premises notice to take any steps remains in effect, unless the court orders otherwise, but (b) any other requirement imposed by a notice is of no effect.(4) For the purpose of subsection (3) an appeal is “in progress” until it is finally determined or is withdrawn.
(5) A magistrates’ court hearing an appeal against a community protection notice must—
(a) quash the notice,(b) modify the notice (for example by extending a period specified in it), or(c) dismiss the appeal.”

[Baroness Hamwee]

My Lords, in moving my amendment I will speak also to my and my noble friend’s Amendments 65, 65A, 68, 68A, 85A, 85B and 85C. The first of these amendments would provide for a right of appeal against prohibition and premises notices, with judicial oversight. The amendment is based very closely on Section 46 of the Anti-social Behaviour, Crime and Policing Act, which provides for an appeal against community protection notices. I am not suggesting that a subject of the notice should have free rein to produce or supply a psychoactive substance, and so on, but it could be argued that the steps required by, let us say, a premises notice, are not reasonable.

We are talking, perhaps, about someone’s livelihood here. Whatever we might think about head shops, if what they are doing is legal, we need to be very careful about precluding someone from carrying on a business, and certainly we must be careful that we give him the opportunity to appeal when he considers that the notice is inappropriate and undeserved. I appreciate that a breach of a notice would take us through procedures to an application to the court for an order, with surrounding protections. However, an appeal against a notice seems to us to be right—and, properly, a right—and it should be available so that someone can avoid having what I could loosely call “a record”. It is not for us to argue for it; it is for the Government to explain why the right of appeal is not included.

The other amendments are all about the standard of proof for prohibition and premises orders and changing them from the civil to the criminal standard. The orders would be made by the criminal courts, and so the criminal rules of evidence, and so on, should apply. This is also the thrust of my Amendments 85A, 85B and 85C to Clause 28, which is about the nature of the proceedings—essentially turning them from civil to criminal proceedings. Again, given the subject matter of this, it is for the Government to explain why what they are proposing should not be required to meet the criminal standard of proof and be dealt with in the way that we are accustomed to through the criminal courts. I beg to move.

[Baroness Meacher (CB)]

My Lords, I will not take up the House’s time, but I wish to express my strong support for these amendments. It is eminently reasonable to have right of appeal, as the noble Baroness said, bearing in mind the considerable penalty that somebody will suffer if their livelihood is suddenly withdrawn from them. It also seems eminently sensible to set the standard of proof at the criminal level. I support these amendments and hope very much that the Minister can comply with those two proposals.

[Lord Howarth of Newport]

I, too, endorse what the noble Baroness, Lady Hamwee, proposed. There will need to be very convincing arguments from the Government as to why there should not be a right of appeal, and I have much sympathy also with what has been said on the standard of proof.

[Lord Tunnicliffe]

My Lords, just to revert to my original path, I do not agree with the noble Lord, Lord Howarth, on the burden of proof. We think that for the orders a balance of probabilities is appropriate. The only question I seek assurance on is that if any individual were to be either imprisoned or fined, it would be under the provisions in Clause 23—and my understanding is that under that clause the criminal standard of proof would be necessary. Providing that one has that assurance, we do not object to the burden of proof in the relevant parts of the Bill with respect to the order.

[Lord Bates]

I shall respond, first, to the point made by the noble Lord, Lord Tunnicliffe. Clause 23 would require the higher criminal standard of “beyond reasonable doubt”, so that is how the matter would be dealt with.

Turning to the point about appeals, I believe that, as proposed, Amendment 64A would be disproportionate, given the nature of prohibition and premises notices. These notices are the first stage of our graded response to tackling the supply of new psychoactive substances. They are intended as a final warning and can be issued by a senior police officer or local authority requiring that the subject of the notice desist from any prohibited activities.

A prohibition notice can be issued only if the relevant officer reasonably believes that the respondent is carrying out, or is likely to carry out, prohibited activity. Therefore, it cannot be issued without good reason, and the issuing officer must also reasonably believe that it is a necessary and proportionate response, given the circumstances. As I have indicated, a notice acts as a final warning. Breach of a notice is not a criminal offence and there are no other direct sanctions flowing from a failure to comply.

The noble Baroness drew a parallel with community protection notices and pointed to the fact that the Anti-social Behaviour, Crime and Policing Act 2014 provides for a right of appeal against such notices. Indeed, this amendment largely mirrors Section 46 of the 2014 Act, but there is an important difference between a community protection notice and the notices provided for in the Bill, in that breach of the former is a criminal offence—hence the right of appeal.

I am not persuaded that, in the absence of a direct sanction for breach, a right of appeal is called for. If the respondent takes issue with a prohibition or premises notice, they can make representations to the issuing agency, which could then, if appropriate, withdraw the notice in accordance with the provisions in Clause 14.

Where the relevant enforcement agency concludes that a prohibition or premises notice had been breached, it could decide to pursue a prosecution for one of the main offences or make an application for a prohibition order or premises order, as the case may be. If the respondent is charged with an offence, they will be able to defend themselves in court in the normal way. If an application is made for a prohibition or premises order, again, the respondent will have his or her day in court and will also be able to appeal against the making of the order. We therefore have judicial oversight where it is appropriate.

I have tried to set out the nature of our graded response to the trade in new psychoactive substances and to state why I believe that an appeal process is unnecessary in the case of a prohibition or premises notice.

The other amendments in this group seek to provide for the criminal standard of proof, rather than the civil standard, to apply when a court is considering making either a prohibition or a premises order—a point on which the noble Lord, Lord Tunnicliffe, sought clarification.

Clauses 17 and 19, which Amendments 65, 65A, 68 and 68A seek to modify, make provisions for the application process for prohibition orders and premises orders, outlining a number of conditions that need to be met for an order to be made. Proceedings under Clauses 17 and 19 are civil proceedings. Accordingly, it follows that the civil standard of proof should apply. The noble Lord suggested that, as the proceedings are part of the criminal process, the criminal standard should apply, but this is based on a false premise. The whole point of the civil sanctions in the Bill is to enable law enforcement agencies to adopt a proportionate response to any offending behaviour and, in appropriate cases, to seek to tackle the behaviour by action short of a prosecution.

The application of the civil standard to such proceedings is not without precedent. Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, the civil standard applies to proceedings in respect of anti-social behaviour injunctions. The civil standard also applies to proceedings under Section 34 of the Policing and Crime Act 2009 in respect of gang injunctions. Of course, if a prohibition order or premises order is breached, the criminal standard of proof would apply to any proceedings for an offence under Clause 23, as I stated.

One of the key purposes of these civil orders is to enable the police, local authorities and other law enforcement agencies to act promptly to nip problems in the bud before they escalate. If the criminal standard of proof were to apply, it would necessarily dictate that more time was required for evidence gathering and there might be little to be gained by applying for a prohibition order as opposed to pursuing criminal prosecution for an offence under Clauses 4 to 8. These amendments would circumscribe the current flexibility built into the enforcement powers in the Bill, to the detriment of communities and defendants alike.

Much the same arguments apply to Amendments 85A to 85C to Clause 28. The clause provides that proceedings before the court under Clause 18 or Clause 25 are civil proceedings—those clauses relate to the making or variation of orders on conviction. It is the case that such proceedings take place in a criminal court, but it is important to remember that a prohibition order or premises order, as with similar civil orders, is not a punishment. As such, they do not form part of the sentence of the court. These orders are preventive in nature and in these circumstances it is again appropriate that the civil standard of proof and the civil standard of evidence should apply. Given that these are quite properly civil proceedings, I hope that the noble Baroness and other noble Lords with amendments tabled in this group will, on reflection, consider that the civil standard should operate and, in the light of this explanation, that the noble Baroness will withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister said that it is not intended as a punishment—I think it was during the debate on a previous group that I wrote down that we heard from the Dispatch Box the term “sanction”. I will need to go back and have a look at that.

As to whether or not we are operating on the basis of a false premise, I do not think that it is quite that, but rather that we have different views as to whether there should be civil or criminal proceedings—it is not so much the premise as the approach.

A premises notice could be given when the activity is being carried on, thought to be carried on or likely to be carried on by somebody other than the premises owner. I am actually quite concerned about how these things interplay.

As regards an appeal, I am glad to hear that representations can be made to the police or the local authority about the notice being withdrawn. However, it does raise the question, certainly to me, of whether there should not be explicit provisions about the right to make representations and how representations should be considered, possibly by providing for a more senior officer to look at the matter. That is not necessarily a very satisfactory way of dealing with it, but there is something in there that we would like to think about—my noble friend is nodding encouragingly; I hope it is encouragingly—as to how to cover the right to make representations and how they can properly be dealt with. Between now and the next stage we will have a think about that—but of course I beg leave to withdraw the amendment.

Amendment 64A withdrawn.

Clause 16 agreed

21:30

Clause 17: Prohibition orders on application

Amendments 65 and 65A not moved.

Amendments 66 and 67

Moved by

[Lord Bates]

66: Clause 17, page 9, line 19, at end insert “an individual who is”

67: Clause 17, page 9, line 24, at end insert “an individual who is”

Amendments 66 and 67 agreed.

Clause 17, as amended, agreed.

Clause 18 agreed.

Clause 19: Premises orders

Amendments 68 and 68A not moved.

Clause 19 agreed.

Clause 20: Applications for prohibition orders and premises orders

Amendments 69 and 70

Moved by

[Lord Bates]

69: Clause 20, page 11, line 18, leave out “police officer” and insert “constable”

70: Clause 20, page 11, line 20, leave out “police officer” and insert “constable”

Amendments 69 and 70 agreed.

Clause 20, as amended, agreed.

Clause 21: Provision that may be made by prohibition orders and premises orders

Amendment 71

Moved by

[Lord Bates]

71: Clause 21, page 11, line 32, leave out from beginning to “the” in line 33 and insert “A court making a prohibition order or a premises order, or a court varying such an order under or by virtue of any of sections 24 to 27, may by the order impose any prohibitions, restrictions or requirements that”

Amendment 71 agreed.

Amendment 71A not moved.

Amendments 72 and 73

Moved by

[Lord Bates]

72: Clause 21, page 12, line 2, at end insert—
“( ) An item that is handed over in compliance with a requirement imposed by virtue of subsection (4) may not be disposed of—
(a) before the end of the period within which an appeal may be made against the imposition of the requirement (ignoring any power to appeal out of time), or(b) if such an appeal is made, before it is determined or otherwise dealt with.”

73: Clause 21, page 12, line 19, at end insert—
“( ) Subsection (6) of section 13 (when a person “owns” premises) applies for the purposes of subsection (5) of this section as it applies for the purposes of that section.”

Amendments 72 and 73 agreed.

Amendment 74 had been withdrawn from the Marshalled List.

Clause 21, as amended, agreed.

Clause 22: Enforcement of access prohibitions

Amendments 74A and 74B

Moved by

[Lord Bates]

74A: Clause 22, page 12, line 35, leave out “a designated NCA officer or”

74B: Clause 22, page 12, line 46, at end insert “, a general customs official or a person authorised by a person listed in subsection (2A).
(2A) Those persons are—
(a) the chief officer of police for a police area, in the case of an order made in England and Wales;(b) the chief constable of the Police Service of Scotland, in the case of an order made in Scotland;(c) the chief constable of the Police Service of Northern Ireland, in the case of an order made in Northern Ireland;(d) the chief constable of the British Transport Police Force, in the case of an order made in England and Wales or Scotland;(e) the Director General of the National Crime Agency;(f) the Secretary of State by whom general customs functions are exercisable.”

Amendments 74A and 74B agreed.

Clause 22, as amended, agreed.

Amendments 75 and 76

Moved by

[Lord Bates]

75: After Clause 22, insert the following new Clause—
“Access prohibitions: reimbursement of costs
(1) A person listed in subsection (2) that incurs expenditure for the purpose of clearing, securing or maintaining premises in respect of which an access prohibition is in effect (see section 21(5)) may apply to the court for an order under this section.
(2) Those persons are—
(a) a local policing body;(b) the Scottish Police Authority; (c) the chief constable of the Police Service of Northern Ireland;(d) the British Transport Police Authority; (e) the Director General of the National Crime Agency;(f) the Secretary of State by whom general customs functions are exercisable;(g) a local authority.(3) On an application under this section the court may make whatever order it considers appropriate for the reimbursement (in full or in part) by the person against whom the order imposing the access prohibition was made of the expenditure mentioned in subsection (1).
(4) An application for an order under this section may not be heard unless it is made before the end of the period of 3 months starting with the day on which the access prohibition ceases to have effect.
(5) An application under this section must be served on the person against whom the order imposing the access prohibition was made.
(6) In this section “the court” means—
(a) the court that made the prohibition order or the premises order imposing the access prohibition, except where paragraph (b) or (c) applies;(b) where the court that made the order was the Court of Appeal, the Crown Court;(c) where the court that made the order was a youth court but the person against whom the order was made is aged 18 or over at the time of the application, a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction.”

76: After Clause 22, insert the following new Clause—
“Access prohibitions: exemption from liability
(1) Neither an authorised person, nor the person under whose direction or control the authorised person acts, is to be liable in damages for anything done, or omitted to be done, by the authorised person in the exercise or purported exercise of a power under section 22.
(2) Subsection (1) does not apply to an act or omission shown to have been in bad faith.
(3) Subsection (1) does not apply so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998.
(4) This section does not affect any other exemption from liability (whether at common law or otherwise).
(5) In this section “authorised person” has the same meaning as in section 22.”

Amendments 75 and 76 agreed.

Clause 23 agreed.

Amendment 77

Moved by

[Lord Bates]

77: After Clause 23, insert the following new Clause—
“Offence of failing to comply with an access prohibition, etc
(1) This section applies where a prohibition order or a premises order imposes an access prohibition (see section 21(5)).
(2) A person, other than the person against whom the order was made, who without reasonable excuse remains on or enters premises in contravention of the access prohibition commits an offence.
(3) A person who without reasonable excuse obstructs a person acting under section 22(1) commits an offence.
(4) A person guilty of an offence under subsection (2) or (3) is liable—
(a) on summary conviction in England and Wales, to either or both of the following— (i) imprisonment for a term not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003);(ii) a fine;(b) on summary conviction in Scotland, to either or both of the following—(i) imprisonment for a term not exceeding 12 months;(ii) a fine not exceeding level 5 on the standard scale;(c) on summary conviction in Northern Ireland, to either or both of the following—(i) imprisonment for a term not exceeding 6 months;(ii) a fine not exceeding level 5 on the standard scale.”

Amendment 77 agreed.

Clause 24: Variation and discharge on application

Amendment 78

Moved by

[Lord Bates]

78: Clause 24, page 14, line 28, at end insert—
“( ) An order that has been varied under this section remains an order of the court that first made it for the purposes of—
(a) section (Access prohibitions: reimbursement of costs);(b) any further application under this section.”

Amendment 78 agreed.

Clause 24, as amended, agreed.

Clause 25: Variation following conviction

Amendment 79

Moved by

[Lord Bates]

79: Clause 25, page 14, line 40, leave out “section” and insert “sections (Access prohibitions: reimbursement of costs) and”

Amendment 79 agreed.

Clause 25, as amended, agreed.

Clause 26: Appeals against making of prohibition orders and premises orders

Amendments 80 to 82

Moved by

[Lord Bates]

80: Clause 26, page 15, line 15, at end insert—
“( ) An appeal under subsection (1) against the making of an order must be made before the end of the period of 28 days starting with the date of the order.”

81: Clause 26, page 15, line 17, at end insert “, and may also make such incidental or consequential orders as appear to it to be just.”

82: Clause 26, page 15, line 19, leave out “section” and insert “sections (Access prohibitions: reimbursement of costs) and”

Amendments 80 to 82 agreed.

Clause 26, as amended, agreed.

Clause 27: Appeals about variation and discharge

Amendments 83 to 85

Moved by

[Lord Bates]

83: Clause 27, page 16, line 16, at end insert—
“( ) An appeal under subsection (1) against the making of a decision must be made before the end of the period of 28 days starting with the date of the decision.”

84: Clause 27, page 16, line 17, leave out “Crown Court may” and insert “court hearing the appeal may (to the extent it would not otherwise have power to do so)”

85: Clause 27, page 16, line 19, at end insert—
“( ) A prohibition order or a premises order that has been varied by virtue of subsection (4) remains an order of the court that first made it for the purposes of sections (Access prohibitions: reimbursement of costs) and 24.”

Amendments 83 to 85 agreed.

Clause 27, as amended, agreed.

Clause 28: Nature of proceedings under sections 18 and 25, etc

Amendments 85A to 85C not moved.

Amendment 86

Moved by

[Lord Bates]

86: Clause 28, page 17, line 11, after “18” insert “, (Access prohibitions: reimbursement of costs)”

Amendment 86 agreed.

Clause 28, as amended, agreed.

Clauses 29 and 30 agreed.

Clause 31: Transfer of proceedings from youth court

Amendment 87

Moved by

[Lord Bates]

87: Clause 31, page 18, line 31, at end insert—
“( ) an individual against whom a prohibition order imposing an access prohibition has been made reaches the age of 18 whilst proceedings before a youth court under section (Access prohibitions: reimbursement of costs) are ongoing.”

Amendment 87 agreed.

Clause 31, as amended, agreed.

Clause 32: Power to stop and search persons

Amendment 87A

Moved by

[Lord Paddick]

87A: Clause 32, page 18, line 42, leave out “or section 23”

[Lord Paddick (LD)]

My Lords, Amendment 87A concerns the power to stop and search. I shall speak also to Amendment 94A, which concerns the power to seize and destroy substances. They are both probing amendments to try to understand why the Government feel it is necessary to include these powers to stop and search.

Originally we focused on Clause 23, which is about failing to comply with a premises order or a prohibition order, but, on reflection, similar arguments would apply to Clauses 4 and 8 in that the power to stop and search is supposed to be on the basis of suspicion that a person has committed, or is likely to commit, an offence under those clauses. These are criminal and arrestable offences. If a police officer or a customs officer suspects that a person has committed either of these offences, they would have a power under common law to stop and search that individual, having arrested them. My question to the Minister is: why is there a need for a separate power to stop and search when there is already a power under common law to do that?

Amendment 94A concerns the power for the police to dispose of seized psychoactive substances even where an offence has not been committed. Clause 46(1)(c) states that if an officer reasonably believes that an item is a psychoactive substance it can be seized and destroyed. My question to the Minister is, surely it needs to go beyond what an officer reasonably believes, otherwise legal substances could be destroyed by the police, with no comeback for the owner of the substances, simply on the basis of an officer’s reasonable belief about those substances that is not well founded and is not factual. I beg to move.

[Lord Howarth of Newport]

My Lords, my amendment in this group seeks to introduce a new clause after Clause 35. Again, it is on the subject of stop and search and, like the amendments of the noble Lord, Lord Paddick, its purpose is to probe.

The Committee should be told what the Government’s policy on stop and search is. In April last year the Home Secretary announced that she intended to introduce a comprehensive package of reform of police stop-and-search powers. She had been informed by Her Majesty’s Inspectorate of Constabulary that a quarter of a million stop-and-search operations—or some 27% of street searches—in 2013 had been illegal. In the other place she said:

“I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the Government will return with primary legislation to make those things happen”.

She went on to say:

“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[Official Report, Commons, 30/4/2014; col. 833.]

The Home Secretary noted that black people were still seven times more likely to be searched on the street than white people, which had been seen as “sharply divisive” in Britain’s black and minority ethnic communities. She might also have noted that in 2013, white people were twice as likely to have taken drugs in the previous year as black or Asian people.

21:45

There are class differences in the patterns of drugs usage. The 2011 online Global Drug Survey of 15,500 mainly young, white, employed, well-educated middle-class people found that their patterns and habits of drug use were far greater than those of the generality of the population. Two-thirds of them had taken cannabis in the previous year; more than 50% had taken MDMA; 41% had taken cocaine; and 25% had taken ketamine. One in 10 had been stopped and searched in the previous 12 months. Nearly half those from the sample who were found with cannabis and a third of those found with MDMA were released simply with a verbal warning. I fancy that it would have been a very different case with young black males in inner-city areas.

The accusation, false or justified, that the police were routinely targeting black youths as being likely to be in possession of and dealing in controlled drugs was one of the factors that lay behind the Brixton riots in 1981 and was again alleged at the time of the 2011 riots in London, Birmingham and Manchester. It appears that the Home Secretary was only, shall we say, equivocally supported by No. 10 in her ambition to reform police stop-and-search powers, but the police have responded and the statistics show that stop and search is now down. However, knife crime is up, as the noble Lord, Lord Paddick, told us earlier.

Against that background, the legislation introduces a whole new range of circumstances in which stop-and-search powers may be exercised, and it is very confusing. Are the Government trying to reduce the incidence of stop and search or is their policy to make plans such that there will be an increased incidence of it? Sir Bernard Hogan-Howe, the Metropolitan Police Commissioner, said recently that the use of stop and search is a “reasonable tactic” in the right circumstances, and indeed its use may need to increase. But I note also that Tim Newburn, professor of criminology at the London School of Economics, was quoted in the Times on 23 June as saying that the police gave suspicion of carrying weapons as a reason for stop and search in 12% of cases, but suspicion of being in possession of drugs as their reason for stop and search in 58% of cases. It is a power that is heavily used where there are suspicions that people are in breach of the law on drugs, and it will be the more so as a consequence of this legislation.

I come back again to the practicalities. I would like the Minister to tell us how a police officer or customs officer can have reasonable grounds to suspect that a person has committed or is likely to commit an offence within the terms of this Bill. The officer must reasonably suspect someone of having a psychoactive substance—we know how difficult it is to identify them—either on their person or in their vehicle or premises, and moreover the officer must have reasonable grounds to suspect that the substance is not for their own use, but with an intent to supply, import or export it. If the officer does find an unidentified substance, how is he or she to know whether it is a controlled substance or a psychoactive substance, because different legislation applies according to which it is?

I think it will be helpful to the Committee if the Minister can tell us why the Home Office has apparently done an about-turn on stop and search. Because I am concerned about the possible further proliferation of the use of this power, my Amendment 89 would require that:

“The Secretary of State shall make a report to Parliament each year on the use of”,

these powers, and to provide,

“statistical and other information which it appears appropriate to the Secretary of State to include as to the numbers of individuals stopped and searched under these powers, their ethnicity and other socio-economic characteristics, the grounds upon which these powers have been used, and the numbers of people subsequently made subject to the various enforcement measures provided for in this Act”.

Does stop and search actually prove to be productive and useful?

[Lord Bates]

My Lords, let me deal first with Amendments 87A and 89, which relate to the stop-and-search powers in the Bill. The noble Lord, Lord Paddick, has explained that Amendment 87A would remove the liability to stop and search persons suspected of committing the offence of failing to comply with a prohibition order or premises order. As I understand it, the case for the amendment is that any breach of a prohibition order or premises order would in itself constitute an offence under Clauses 4 to 8, and accordingly it is not necessary to apply the stop-and-search powers to the Clause 23 offence. Such reasoning seems to misunderstand the nature of the prohibition orders and the premises orders. As we have already debated, these orders may contain any prohibitions, restrictions or requirements that the court considers appropriate. Failure to comply with these would be a breach of the order and therefore constitute an offence under Clause 23, so a person could commit the Clause 23 offence without also committing one of the main offences under Clauses 4 to 8. It is therefore entirely appropriate that the stop-and-search powers extend to circumstances where a person is suspected of failing to comply with a prohibition or premises order. To remove the reference to the Clause 23 offence would weaken the enforcement powers in the Bill.

Amendment 89, in the name of the noble Lord, Lord Howarth, would require an annual report to Parliament on the exercise of the stop-and-search powers. We recognise the sensitivity surrounding the exercise of such powers, which is why my right honourable friend the Home Secretary is determined to reform the way that they are used. Indeed, our party manifesto included a commitment to legislate to mandate changes in police practices if stop and search does not become more targeted and stop-to-arrest ratios do not improve.

As to the specifics of the amendment, I advise the noble Lord that forces must already collect data on stop and search that are published annually for public scrutiny. Those data include the ethnicity of the individuals concerned. Forces are also required under the Best Use of Stop and Search Scheme to record additional data, such as the reason for the stop and search, the outcome and whether there is a connection between the two. This greater transparency enables greater scrutiny and accountability. I expect such data collections to include the stop-and-search powers provided for under the Bill. The noble Lord has raised some serious points. He is right that the stop-and-search powers in the Bill need to be properly monitored, but I hope I have been able to reassure him that there are already mechanisms in place to do just that.

Amendment 94A relates to Clause 46, which provides for a fast-track procedure for the disposal of seized psychoactive substances. The clause was included in the Bill at the direct request of the national policing lead on new psychoactive substances. Clause 46(1) outlines four conditions that, when met, allow a substance to be disposed of under the fast-track process.

Amendment 94A relates to the third condition—namely, that the officer reasonably believes that the seized item is a psychoactive substance but is not evidence of any offence under the Bill. Amendment 94A seeks to amend the condition so that a substance can be seized only where it is proved to be psychoactive. The procedure provided by the clause broadly mirrors the well-established process already in operation for temporary class drugs under Section 23A(4) and (5) of the Misuse of Drugs Act 1971. Section 23A(4) uses the same language as here—namely, a test of “reasonably believes”. For small quantities of seized substances, where there is no evidence of an offence under the Bill, this is an appropriate test. We must be mindful both of the need to protect the public—we do not want to be returning potentially harmful substances once seized—and to avoid tying up the police in unnecessary bureaucracy and the need for expensive forensic testing.

The amendment has the potential to severely restrict the utility of this power and questions the professional judgment of police and customs officers. An officer’s reasonable belief in this context could be based on the substance’s packaging, its markings or even whether the individual from whom it was seized appears intoxicated and the officer can infer that the substance found may be responsible. As demonstrated in the context of temporary class drug orders, requiring officers to make decisions based upon their reasonable belief is not new. The Home Office will continue to work with the national policing lead and the College of Policing to ensure that guidance is developed on this issue to assist officers.

The police rely on statutory stop-and-search powers. I refer noble Lords to annexe A of the Police and Criminal Evidence Act codes of practice for the full list. We need to add those statutory powers for the purposes of enforcing the provisions of this Bill. The Government are clear that the powers of stop and search, when used correctly, are vital in the fight against crime. However, when it is misused, stop and search is counterproductive and a waste of police time. That is why the proposal to introduce the best use of stop-and-search schemes and the publication of data, which the noble Lord requested, is such an important part of us monitoring how this legislation is implemented on the ground. That evidence will be collected and, therefore, able to be reviewed as this goes forward. I hope that, with that additional explanation, the noble Lord will feel able to withdraw his amendment.

I am conscious that a letter is on its way to noble Lords, which I promised after the interventions of the noble Lords, Lord Rosser and Lord Harris of Haringey, on the whole process of how one begins testing and determining whether what is there is a psychoactive substance. That is in train and will certainly be available to noble Lords ahead of Report stage. I hope that that will give further clarity on this matter.

[Lord Paddick]

I thank the Minister for his response. By changing horses half way through, I might have thrown the Minister in specifying Clause 23 and not specifying Clauses 4 to 8. Therefore, what the Minister read out was an assumption of what my thinking was, as opposed to what my thinking became when I presented it; namely, that if these are arrestable offences there is a power for the police, once the person is arrested, to detain and search them. Therefore, it would seem unnecessary to have the powers provided by Clause 32. I would not expect the noble Lord to respond now to that because it was my fault for misleading him in the way in which I presented the amendments.

On seizure and destruction of substances that an officer reasonably believes to be a psychoactive substance, my point was not about coming across a small amount in someone’s pocket that the officer could then seize and destroy. We were thinking more of where the substances were found in a head shop, for example, and turned out to be a large quantity which could or could not be a psychoactive substance. Those large quantities could be destroyed simply on the basis of the officer reasonably believing that they are something covered by this Bill, but which then turn out not to be.

Having further explained what I was getting at but did not make clear the first time around, perhaps the Minister will respond to me between now and Report stage. On that basis, I beg leave to withdraw the amendment.

Amendment 87A withdrawn.

Amendment 87B

Moved by

[Baroness Chisholm of Owlpen]

87B: Clause 32, page 19, leave out line 10

[Baroness Chisholm of Owlpen]

My Lords, given the lateness of the hour, I do not propose to speak at length about this group of technical and drafting amendments. My noble friend Lord Bates has provided details of the amendments in two letters to the noble Lord, Lord Rosser, copies of which have been sent to all noble Lords who spoke at Second Reading. Copies of these letters have been placed in the Library. I would be happy to explain particular amendments if any noble Lord would like further details, but for now I beg to move.

Amendment 87B agreed.

Amendment 87C

Moved by

[Lord Bates]

87C: Clause 32, page 19, line 11, at end insert “, or
(0) a designated NCA officer authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a police or customs officer under this Act;”

Amendment 87C agreed.

Clause 32, as amended, agreed.

Clauses 33 and 34 agreed.

22:00

Clause 35: Power to enter and search premises

Amendment 88

Moved by

[Lord Bates]

88: Clause 35, page 20, line 33, after “a” insert “relevant enforcement officer or a”

Amendment 88 agreed.

Clause 35, as amended, agreed.

Amendment 89 not moved.

Clause 36 agreed.

Schedule 2: Search warrants

Amendments 90 to 94

Moved by

[Lord Bates]

90: Schedule 2, page 35, line 36, at end insert—
“( ) In the case of an application made by a procurator fiscal, any requirement imposed on a person applying for a search warrant by this paragraph or paragraph 2 may be met by a relevant enforcement officer.”

91: Schedule 2, page 36, leave out lines 20 and 21

92: Schedule 2, page 36, line 27, at end insert—
“( ) In this paragraph “specific-premises warrant” and “all-premises warrant” have the meaning given by section 35(3).”

93: Schedule 2, page 38, line 23, after “warrant” insert “issued in England and Wales or Northern Ireland”

94: Schedule 2, page 38, line 35, leave out paragraph (b)

Amendments 90 to 94 agreed.

Schedule 2, as amended, agreed.

Clauses 37 to 45 agreed.

Clause 46: Power of police, etc to dispose of seized psychoactive substances

Amendment 94A not moved.

Clause 46 agreed.

Clause 47: Forfeiture of seized items by court on application

Amendments 95 to 99

Moved by

[Lord Bates]

95: Clause 47, page 26, line 35, leave out from beginning to first “the” in line 44 and insert—
“(3) If the court is satisfied that—
(a) the item is a psychoactive substance, and(b) at the time of its seizure, the item was not being used for the purposes of, or in connection with, an exempted activity (see subsection (12)) carried on by a person entitled to the item,the court must order the forfeiture of the item.(4) If the item is not a psychoactive substance,”

96: Clause 47, page 27, line 3, leave out “body” and insert “person”

97: Clause 47, page 27, line 34, at end insert “an individual who is”

98: Clause 47, page 27, line 39, at end insert “an individual who is”

99: Clause 47, page 27, line 42, leave out subsection (12) and insert—
“(12) For the purposes of this section—
(a) an activity is an “exempted activity” in relation to a person if the carrying on of the activity by that person would not be an offence under this Act by virtue of regulations under section 10; (b) the persons “entitled” to an item are—(i) the person from whom it was seized;(ii) (if different) any person to whom it belongs.”

Amendments 95 to 99 agreed.

Clause 47, as amended, agreed.

Clause 48 agreed.

Clause 49: Return of item to person entitled to it, or disposal if return impracticable

Amendments 100 and 101

Moved by

[Lord Bates]

100: Clause 49, page 29, line 16, after “is” insert “an individual who is”

101: Clause 49, page 29, line 21, after “is” insert “an individual who is”

Amendments 100 and 101 agreed.

Clause 49, as amended, agreed.

Clause 50: Forfeiture by court following conviction

Amendments 102 and 103

Moved by

[Lord Bates]

102: Clause 50, page 29, line 30, at end insert—
“( ) In this section “the court” means—
(a) the court by or before which the person is convicted of the offence, or(b) if the person is committed to the Crown Court to be dealt with for that offence, the Crown Court.”

103: Clause 50, page 29, line 31, leave out “by which the person is convicted”

Amendments 102 and 103 agreed.

Clause 50, as amended, agreed.

Amendments 104 and 105 not moved.

Clauses 51 and 52 agreed.

Schedule 3: Providers of information society services

Amendments 105A to 105J

Moved by

[Lord Bates]

105A: Schedule 3, page 41, line 15, leave out from “applies” to end of line 16 and insert “where—
(a) a person proposes to give a prohibition notice,(b) a person makes an application for a prohibition order under section 17, or(c) a person mentioned in subsection (1)(a) or (2) of section 24 makes an application under that section for the variation of a prohibition order.”

105B: Schedule 3, page 41, line 17, leave out “A” and insert “The”

105C: Schedule 3, page 41, line 17, leave out “a”

105D: Schedule 3, page 41, line 18, leave out second “the” and insert “a non-UK”

105E: Schedule 3, page 41, line 29, after “making” insert “or varying”

105F: Schedule 3, page 41, line 32, leave out “a law enforcement officer” and insert “the relevant enforcement authority”

105G: Schedule 3, page 41, line 33, leave out “officer” and insert “authority”

105H: Schedule 3, page 41, line 36, leave out “a law enforcement officer” and insert “the relevant enforcement authority”

105J: Schedule 3, page 41, line 37, leave out from “of” to end of line 43 and insert “the relevant matters (see sub-paragraph (5A)).
(5A) The “relevant matters” are—
(a) in the case of a prohibition notice, the intention to give a prohibition notice containing the terms;(b) in the case of a prohibition order, the intention to apply for—(i) a prohibition order containing the terms, or(ii) the variation of a prohibition order so that it contains the terms;(c) in either of those cases, the terms. (6) In the case of a prohibition order, it does not matter for the purposes of sub-paragraph (5) whether the request or notification is made before or after the making of the application referred to in sub-paragraph (5A)(b).
(7) In this paragraph—
“non-UK service provider” means a service provider established in an EEA state other than the United Kingdom;“the relevant enforcement authority” means—(a) in the case of a prohibition notice to be given by a constable, the chief officer of police or chief constable (as the case may be) of the police force of which the constable is a member;(b) in the case of a prohibition notice to be given by a designated NCA officer, the Director General of the National Crime Agency;(c) in the case of a prohibition notice to be given by a general customs official, the Secretary of State by whom general customs functions are exercisable;(d) in the case of a prohibition notice to be given by a local authority, that local authority;(e) in the case of a prohibition order, the person applying for the order or for the variation of the order (as the case may be).”

Amendments 105A to 105J agreed.

Schedule 3, as amended, agreed.

Clause 53: Interpretation

Amendments 105K and 105L

Moved by

[Lord Bates]

105K: Clause 53, page 31, line 4, leave out “9 or”

105L: Clause 53, page 31, line 17, after “sheriff” insert “or a justice of the peace”

Amendments 105K and 105L agreed.

Clause 53, as amended, agreed.

Clause 54 agreed.

Schedule 4: Consequential amendments

Amendments 106 and 107

Moved by

[Lord Bates]

106: Schedule 4, page 45, line 36, at end insert—
“Police (Northern Ireland) Act 20032A In Schedule 2A to the Police (Northern Ireland) Act 2003 (powers and duties of community support officer), after paragraph 9 insert—
“Powers to seize and retain: psychoactive substances9A (1) If a CSO—
(a) finds a psychoactive substance in a person’s possession (whether or not the CSO finds it in the course of searching the person by virtue of any other paragraph of this Schedule), and(b) reasonably believes that it is unlawful for the person to be in possession of it,the CSO may seize it and retain it.(2) If a CSO—
(a) finds a psychoactive substance in a person’s possession (as mentioned in sub-paragraph (1)), or(b) reasonably believes that a person is in possession of a psychoactive substance,and reasonably believes that it is unlawful for the person to be in possession of it, the CSO may require the person to give the CSO his name and address.(3) If in exercise of the power conferred by sub-paragraph (1) the CSO seizes and retains a psychoactive substance, the CSO must—
(a) if the person from whom it was seized maintains that he was lawfully in possession of it—(i) tell the person where inquiries about its recovery may be made, and(ii) explain the effect of sections 45 to 47 and 49 of the Psychoactive Substances Act 2015 (retention and disposal of items), and(b) comply with a constable’s instructions about what to do with it.(4) Any substance seized in exercise of the power conferred by sub-paragraph (1) is to be treated for the purposes of sections 45 to 49 of the Psychoactive Substances Act 2015 as if it had been seized by a police or customs officer under section 32 of that Act. Section 46 of that Act applies in relation to any such substance as if the reference in subsection (1)(b) to the police or customs officer who seized it were a reference to the CSO who seized it.
(5) A person who fails to comply with a requirement under sub-paragraph (2) is guilty of an offence and is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
(6) Paragraph 4 applies in the case of a requirement imposed by virtue of sub-paragraph (2) as it applies in the case of a requirement under paragraph 2(1).
(7) In this paragraph “police or customs officer” and “psychoactive substance” have the same meaning as in the Psychoactive Substances Act 2015.”

107: Schedule 4, page 47, line 11, leave out from beginning to “or” in line 12

Amendments 106 and 107 agreed.

Amendment 108 not moved.

Schedule 4, as amended, agreed.

Clauses 55 and 56 agreed.

Clause 57: Commencement and short title

Amendments 109 to 112 not moved.

Amendment 113

Moved by

[Lord Howarth of Newport]

113: Clause 57, page 33, line 12, at end insert “but not before both Houses of Parliament have debated the conclusions of the United Nations General Assembly Special Session on Drugs in 2016”

[Lord Howarth of Newport]

My Lords, I am conscious that I am prevailing upon the patience and tolerance of the House in moving an amendment at this time of the evening and at the very tail end of the Bill. However, it is on an important topic which warrants our consideration.

I emphasise that this is, of course, a probing amendment, which, if it were pressed seriously, would be a wrecking amendment. It is no part of our role to wreck the legislation; rather, we seek to improve it and offer advice to our elected colleagues in the other place on how to make it better.

My amendment proposes that the provisions of this Bill should not be brought into force,

“before both Houses of Parliament have debated the conclusions of the United Nations General Assembly Special Session on Drugs in 2016”.

I think that special session is due to be held in March of 2016. When, some time ago, the Secretary-General of the UN, Ban Ki-moon, announced that there would be a special session of the UN General Assembly on drugs, he urged all member states to,

“conduct a wide-ranging and open debate that considers all options”.

Indeed, some Governments across the world have developed rational policy in relation to drugs and have led public opinion. I have in mind the Czech Republic, Portugal, Switzerland, Germany, the Netherlands, Uruguay and, of course, a number of states of the United States of America.

In 2009, three former Latin American presidents wrote in an article in the Wall Street Journal that,

“it’s high time to replace an ineffective strategy with more humane and efficient drug policies. … we must shatter the taboos that inhibit public debate about drugs in our societies. … the long-term solution is to reduce demand for drugs in the main consumer countries. To move in this direction, it is essential to differentiate among illicit substances according to the harm they inflict”.

That differentiation is conspicuously lacking in this legislation.

The Global Commission on Drug Policy, whose membership is a roll call of eminent and respected international figures—such as Kofi Annan, Paul Volcker, Javier Solana, former UN Commissioners for Human Rights and for Refugees, former presidents of Poland, Portugal, Switzerland, Brazil, Chile, Colombia and Mexico—said in a report published in 2011:

“The global war on drugs has failed, with devastating consequences for individuals and societies around the world. … fundamental reforms in national and global drug control policies are urgently needed”.

These were formidable indictments of the prohibitionist orthodoxy.

In a debate in your Lordships’ House on 17 October 2013, a former Lord Justice of Appeal told us that it is perfectly clear,

“that there has to be a rethink on drugs in this country. It clearly is not working”.—[Official Report, 17/10/13; col. 677.]

Public opinion in Britain has been shifting. It is a generational change, and a change that is registered right across the political spectrum regardless of how people vote. Younger people feel that prohibition has failed and that a different set of policies is needed. YouGov research for the Sun newspaper in 2012 found that 67% of people thought the policy was working badly. Ipsos MORI research in 2013 for the Transform Drug Policy Foundation found that 53% of people thought that it was right to regulate the production and supply of cannabis and to decriminalise possession.

The United Kingdom, as one of the world’s major consumers of drugs, especially cocaine, has a major responsibility for the devastation that has been wrought in the producer countries and transit countries of Latin America, the Caribbean and west Africa. It behoves us to consider the implications of our own habits of self-indulgence and patterns of consumption for unfortunate people the world over. Policy should be based on evidence and experience, not on taboo, fear of what the tabloids may say, a fixed mindset, moralism, and certainly not on panic.

There is a crisis in relation to new psychoactive substances. We all agree about that but the policy response needs to be based on evidence and needs to be rational. As I have said before, it seems futile to attempt to overlay on the digital global economy a system of prohibition that failed to work effectively in the pre-digital era; nor do I think that idiosyncratic legislation in one country or one small group of countries, such as the United Kingdom, Ireland, Poland and Romania, is going to provide the right solution—there is no solution—or, rather, an appropriate range of policies.

Earlier today when we were referring to Ireland and the difficulties that the Border Force might face in enforcing the bans on importation, the Minister observed how difficult it is when a country—in that case, Ireland—seeks to legislate in isolation, and seemed to be arguing for a more cohesive international approach. In that respect, I very much agree with him.

The European Monitoring Centre on Drugs and Drug Addiction, in its very recently published annual report, observes that the complexity of the drugs problem is far greater now than it was 20 years ago. It notes that manufacture, supply, retail, relevant websites and payment processing may all occur in different countries. Crudely simplistic unilateral legislation cannot even begin to work.

I believe it is time for all the political parties to admit the failures of policy over the past half-century. I believe that the United Kingdom should join the countries that are willing to think afresh about these problems and that we should adopt a thoroughly constructive approach in the lead-up to the United Nations General Assembly Special Session. I would be most grateful if the Minister told us what part the Home Office is playing in the developing discussions.

My noble friend Lady Meacher, who chairs the All-Party Parliamentary Group for Drug Policy Reform, has been intensively engaged in international diplomacy on behalf of the group to try to ensure that there is a productive outcome of the process leading up to the UNGASS. In the mean time, we should refrain from implementing what I am sorry to repeat that I believe is ill-conceived prohibitionist legislation, at any rate until we see the outcome of these global discussions and Parliament has had the opportunity to deliberate upon the discussions and findings of the UN General Assembly. I beg to move.

[Baroness Meacher]

My Lords, I support this amendment because of the enormity of the importance of the UNGASS to global drug policy. I will take less than two minutes of the House’s time but I plead with your Lordships to bear with me.

The All-Party Parliamentary Group for Drug Policy Reform has provided a document which we hope will be of interest to the Government. We worked for about 18 months on the document, called Guidance on Interpreting the UN Drug Conventions. We have worked closely with senior Mexican officials and experts from around the world on the document and we have had discussions with I cannot even say how many country representatives. I spoke at the Vienna CND on it.

As we speak, the President of a very significant Latin American country has his office and Ministers discussing the proposal that he would like to adopt to present the essentials from this guidance document to the UNGASS next year. This week a Latin American ambassador said he very much hoped that the UK Government would support the President’s initiative. The former president of the Organization of American States supports our work. The European Commission wants to work with us on an EU document to go to UNGASS because it is so impressed with our document.

Very briefly, the guidance urges UN member states across the globe to begin a process to develop evidence-based policy. The UN conventions upon which we all base our policies were not developed on the basis of evidence of which policies would achieve the overarching objective of the UN conventions to advance,

“the health and welfare of mankind”.

Rather, global drug policy has been based upon a wrong-headed psychological theory of motivation. Punish everyone involved with drugs and we will achieve a drug-free world: so said President Nixon all those years ago in 1971. The opposite has of course occurred in the last 50 years.

22:15

We argue that the aim of the UNGASS must be to open up the possibility of trying new drug policies and evaluating them to develop an evidence base about those policies which can and will effectively achieve the objective of the conventions. The amendment suggests that the Bill should be held on ice, awaiting the outcome of the UNGASS and an opportunity for both Houses to debate it. That would of course be a highly rational approach for the Government to take but we are realists. We have never had rational drug policy in this country and we do not expect it today. This is not a party-political point at all. In some sense, I understand why senior politicians do not have rational policy. However, I would be grateful to have an opportunity for the noble Lord, Lord Howarth, and I—and maybe one or two others—to meet the Minister, and perhaps other Ministers too, before or possibly after Report, specifically to discuss the UNGASS and the UK Government’s position with respect to it.

[Lord Bates]

My Lords, I thank the noble Lord, Lord Howarth, for moving his amendment, which gives us an opportunity to return to the big picture on the issues we face, namely the global work which is happening on tackling drugs. Let me start by outlining the importance that the Government attach to the special session and our approach to influencing its form and outputs. The 2016 session will be the highest-level UN meeting on international drug policy since 1998. It represents a unique opportunity to engage with all UN member states, international organisations and civil society, to see how they can improve the global response to the harms caused from drugs. We very much appreciate the work undertaken by the All-Party Group on Drug Policy Reform.

The Government are committed to taking a leadership role at that special session. We are working with our international partners to share our national expertise and to advocate a modern, balanced and evidence-based approach to drugs within the UN conventions—an approach which delivers prevention and recovery, alongside proportionate action to restrict the supply of drugs.

Part of our objectives for the special session will be to enhance international action on new psychoactive substances. This is an area where the UK is recognised as a global leader and our long-term plan is delivering significant successes. In April, the Government secured international controls on mephedrone, the first new psychoactive substance to be banned at an international level. We will continue to work with the World Health Organization and the United Nations Office on Drugs and Crime to strengthen the UN’s scheduling system and ensure that the most prevalent, persistent and harmful new psychoactive substances are banned at an international level. We will also use the special session to enhance information-sharing about the latest forensic and public health evidence. I am sure that the Committee will welcome the UK’s ongoing work to fund and support the UN’s global Early Warning Advisory and the European Monitoring Centre for Drugs and Drug Addiction.

We will also encourage international law enforcement co-operation to tackle the production and supply of new psychoactive substances. This includes supporting China and India to enhance their interception of psychoactive substances for export. We will use the special session to share the lessons we have learned on the need for a balanced and evidence-based approach. We will build on our work through the UN, G7 and EU to share our experience of delivering targeted prevention campaigns.

The Committee will understand the important contribution that civil society and international organisations, such as the World Health Organization, could make to the special session. I reassure noble Lords that the Government are focused on ensuring an open and inclusive preparatory process. We are working closely with our international partners and civil society. We must not, however, allow international discussions to delay for one moment UK action to tackle the pernicious psychoactive substances harming our communities right now. That is why we do not accept this amendment. But in saying that, I would also say to the noble Baroness, Lady Meacher, and to the noble Lord, Lord Howarth, that I am of course very happy to arrange a meeting. It would perhaps be beneficial to have one with my right honourable friend Mike Penning, who leads in the Home Office on this particular area, to offer some reflections about what the Government’s position should be going into that important set of negotiations.

This might be the last time I am on my feet in Committee, so my final point is to thank noble Lords for their contributions. It has been an excellent process and has given us a lot of food for thought, which we will reflect on between now and Report. This might be the only contentious part of my closing comments, but I do think that we have a rational approach to drugs policy. It may not be the one that some Members would choose, but it certainly has a rationale to it. In addition, it is not without success: we can all take a modicum of encouragement from the fact that overall drug use, particularly among young people, is falling. That is to be welcomed. Given the context of the earlier debates, I would point out that the use of alcohol and tobacco is also falling among young people. That offers some hope that we are on the right track, although of course we have a very long way to go.

[Lord Howarth of Newport]

My Lords, perhaps on behalf of the Committee, I can say again how much I believe all of us have appreciated the way the Minister and his colleague, the noble Baroness, Lady Chisholm, have dealt with the proceedings in the Committee. There are profound differences of view as to what the right policy should be, but we have managed to debate these difference of view in, I think, an amicable and constructive fashion. I certainly value that very much and am most grateful to him. I am not so enthusiastic about the Minister’s response to this specific amendment and, when he said that the Government do not intend to delay implementation of the Bill for one minute, I thought he showed himself to be uncharacteristically hard-line.

The Minister then went on to be a little modest about the success of the Government’s policies, saying that they had been “not without success”. That did not seem to me to be a very large or confident claim. He then did make a rather large claim, and I am not convinced that it is a justifiable one. He said that drug use, especially among young people, has been falling. I just wonder whether he or any of us really knows—it is peculiarly difficult to find out what is really going on. The drug scene constantly mutates: you can monitor usage of some particular drugs but you can be pretty sure that if you find that there is a dip in the use of cannabis, it is because there is an increase in the use of ecstasy or whatever. It is very hard to keep track of it. I notice that in the report on new psychoactive substances that Mr Penning’s predecessor, the coalition Minister Norman Baker, produced, it was evident that the experts consulted were really finding it very hard to get a handle on what was actually going on in the field of new psychoactive substances.

The Minister, in his response, uttered a great many decent sentiments and used some encouraging words. He spoke of the Government taking a “leadership role” with international partners and of working towards “balanced”, “evidence-based” and “proportionate” policy—who could do anything other than cheer that? He said that there would be a wide-ranging “sharing” of information and talked of partnership with the World Health Organization and with civil society. That I find genuinely encouraging. If the Government really are intent on developing an open and inclusive preparation process, as he told us, that will be helpful, because a lot of people have a contribution to make.

I was a bit more nervous when he spoke of partnership with China. I have myself advocated that the Foreign Office develops its relationship with China in relation to drugs, but none of us should forget that China uses the death penalty and that one of the problems about prohibition is that it leads to constant infringement, of the direst kind, of human rights.

This is complex territory, but I am very grateful to the Minister for agreeing to meet us. He has proposed that we should have a meeting with Mr Penning. If he can persuade the Home Secretary herself to meet the noble Baroness, Lady Meacher, myself and some others, that would be even more desirable, but I shall leave that with him. In the mean time, I beg leave to withdraw the amendment.

Amendment 113 withdrawn.

Amendments 114 and 115 not moved.

Clause 57 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 10.25 pm.