Grand Committee
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, welcome to the first session of the Grand Committee in this new Parliament. Before the Minister moves that the first order be considered, I remind noble Lords that, in the case of each order, the Motion before the Committee will be that the Committee consider the order in question. Motions to approve the orders will be moved in the Chamber in the usual way. Of course, if there is a Division in the House, the Committee will adjourn for 10 minutes.
Legislative Reform (Licensing) (Interim Authority Notices etc) Order 2010
Baroness Rawlings
That the Grand Committee do report to the House that is has considered the Legislative Reform (Licensing) (Interim Authority Notices etc) Order 2010.
Relevant document: 8th Report, Session 2009-10, from the Regulatory Reform Committee.
Baroness Rawlings
My Lords, the order before us today was laid before Parliament on 10 March by the previous Government. It will extend five time periods under the Licensing Act 2003. First, it will extend the period during which specified persons may issue an interim authority notice, known as an IAN, following a lapse caused by the death, incapacity or insolvency of the licence holder from seven to 28 days. Secondly, it will extend the period during which a person may apply for reinstatement on transfer of the licence to that person following its lapse from seven to 28 days. Thirdly, it will extend the period during which an IAN has effect from two to three months. Fourthly, it will extend the period during which the police may object to a temporary event notice, known as a TEN, from 48 hours to two working days. Fifthly, it will extend the period during which the police may object to an IAN from 48 hours to two working days.
These relatively minor changes have been requested for some time by those affected by the legislation. In particular, the British Beer & Pub Association and various licensing lawyers have requested the extension of the seven-day deadlines. Also, the Association of Chief Police Officers has requested the change to the police objection period. It has told us that the current timescales are too short and that this amounts to an administrative burden. By allowing more time to conduct these procedures, we will help businesses going through difficult times and assist the police in the conduct of their duties. Therefore, we are seeking to complete the process of parliamentary scrutiny and to bring these changes into force as soon as possible.
The previous Government conducted a consultation on these measures alongside unrelated proposals to allow the police discretion to accept TENs received without the required notice of 10 working days and to remove the requirement that local licensing authorities consult on the publication of a new licensing policy statement every three years. The consultation ended on 9 February this year. There were 74 responses, covering a wide cross-section of those affected by the changes, including local authorities, the licensed trade and the police. Several of the responses were from national representative bodies responding on behalf of their memberships. These included the British Beer & Pub Association, Local Authorities Co-ordinators of Regulatory Services and the Association of Chief Police Officers. There was near unanimous support for the proposals, which were subsequently brought forward in this order. The other proposals, although generally supported in principle, received a more mixed response. The previous Government therefore decided not to proceed with them.
The House of Lords Select Committee on Delegated Powers and Regulatory Reform and the Commons Regulatory Reform Committee both unanimously approved the LRO. Their reports were published on 25 March. I am grateful to the committees for their work in scrutinising this order.
I shall deal first with the elements that are designed to make it easier to administer the affairs of licence holders after death, incapacity or insolvency. In brief, the order will allow them a longer period to transfer the licence. Under the Licensing Act 2003, anyone who wishes to sell alcohol or to supply it to a members’ club, to put on regulated entertainment or to provide late-night refreshment must obtain authorisation. This can be a temporary event notice, a club premises certificate or a premises licence.
Ordinarily, businesses that include licensable activities, such as pubs, supermarkets, off-licences and late-night takeaways, will do so under a premises licence. This licence is held in the name of an individual and lapses automatically if the holder of the licence dies, becomes mentally incapable or becomes insolvent—alternatively, in the case of a company, if the company becomes insolvent or is dissolved. This could, of course, have a damaging effect on the business and on those with an interest, such as the landlord or employees. Therefore, the Act makes provision for the revival of the licence after such a lapse. There are two mechanisms: reinstatement on transfer and an interim authority notice.
A reinstatement on transfer is, in practice, the most common method of reviving a lapsed licence. The licence is reinstated by transferring it permanently to another holder. The process is similar to the ordinary transfer of a licence that has not lapsed. In particular, if the chief officer of police is satisfied that the exceptional circumstances of the case are such that the transfer would undermine the prevention of crime, he has 14 days to issue a notice stating so.
Alternatively, someone with a prescribed interest in the premises, such as a freehold interest, or a person connected to the former holder of the licence, such as their personal representative or a person with power of attorney, can apply for an interim authority notice, or IAN. This is a less frequently used procedure in practice, because the authority that it provides is, as the name implies, only temporary. Currently, the maximum length of the interim authority is two months. The licence will lapse again unless it is transferred during this period. The order will extend the maximum duration of interim authority to three months. Respondents to the consultation said that this would be invaluable in some circumstances and did not identify any risks in this modest extension. When an IAN is issued, the chief officer of police has 48 hours to issue a notice relating to crime prevention. The order will extend this period for police objection to two working days. I shall return to this point later in the context of the TENs, for which a similar procedure exists.
On the extension of the deadline for the issue of an IAN or reinstatement on transfer, for both processes there is currently a deadline of seven days after the licence lapses in which steps can be taken to revive it. The most important element of the order before the Committee is the extension of that period to 28 days. The impact assessment published with the consultation set out estimates for the savings that this will make for businesses. It estimates that the extension to 28 days will have significant benefits for those managing the affairs of a business after bereavement or insolvency. In particular, to use estimates provided by local licensing authorities on the number of applications received after the deadline, it could mean annual savings of around £5.2 million to £9.7 million in lost turnover. Additionally, there would be a modest £0.4 million saving annually in the fees and administrative costs currently caused by the need to reapply for lapsed licences.
More important than these financial calculations, perhaps, are the compassionate grounds for extending the deadline. The British Beer & Pub Association said in its response to the consultation:
“There have been well documented cases of the distress caused where licensees have died and relatives have struggled to cope with the seven day period as currently exists. There is no justification or reason that we can see for such a short timescale regarding this process. The current requirements place an unnecessary burden on licensees at a sensitive time”.
Medway Council also supported the proposal and said:
“We have had situations where the licensee died and the family were unable to put in an interim within the 7 days due to bereavement and making funeral arrangements. The licence lapsed and this caused the family considerable distress as they had to close and reapply for a licence”.
The main motivation for this order is to make certain that such situations do not recur.
In comparison with other processes under the Act, such as a new application for a premises licence, the processes for interim authority and reinstatement on transfer are relatively light touch. In particular, it is only the police who can object on crime and disorder grounds and not, for example, environmental health departments on public nuisance grounds.
Baroness Rawlings
Nevertheless, the extension of the timescales described will leave sufficient safeguards in place to ensure that the public are protected. For example, all the conditions of the licence will continue to apply and the consequence of breach is the same as usual, including a potential six-month sentence on conviction. Any sales of alcohol still have to be supervised by a designated premises supervisor. This individual is required to possess a personal licence and to have undergone a criminal record check. The powers of search and entry, as well as the police and magistrates’ power of closure, continue to apply in respect of any licensed premises. Any interested parties, including residents and responsible authorities, such as the police, can apply to the licensing authority for a review of the licence.
The extension of the police objection period for temporary event notices and IANs enables the user to carry out licensable activities, including sales of alcohol and the provision of regulated entertainment on an occasional basis, without any other authorisation.
The TENs regime is light touch; in particular, only the police may object to a TEN on crime and disorder grounds. On the other hand, various limits apply to TENs to minimise the potential impacts; for example, no more than 499 people can attend the event at the same time and there can be no more than 12 events per year at the same place. Currently, the TEN must be copied to the police at least 10 working days before the event. The police have to have a maximum of 48 hours to issue an objection on crime and disorder grounds. An analogous 48-hour period applies to interim authority notices.
There is evidence to suggest that in some circumstances the current 48-hour objection period does not give the police the time intended and that that may sometimes limit or prevent the police from making a proper assessment of the risk of crime and disorder. An example is where a TEN is delivered to a police station that may be unmanned on a Friday night, so that the TEN is not received by the chief officer of police until the following week, by which time the objection period will have expired. Therefore, the order seeks to extend the 48-hour period to two working days for both TENs and IANs. That small change should make certain that the police always have sufficient time to consider notices properly.
There was almost unanimous approval from those who responded to this part of the consultation for the extension of the police objection period to at least two working days. The consultation document also asked for views on an extension to three working days in the case of TENs. The majority who expressed a preference opposed the further extension to three working days. Therefore, the order before the Committee proposes two working days. Although the police consider this change to be important, we do not consider that the extension would mean a significant net increase in police objections. That is because some police objections that may currently be made on a precautionary basis may not be made if the police have sufficient time to satisfy themselves about concerns. A very small number of respondents were opposed to any extension of the deadline for police objection for either TENs or IANs or both. The main argument was that the current 48-hour period causes no problems. That was contradicted by the overwhelming majority of responses, including all those from police representatives.
The order before the Grand Committee will assist business during difficult periods. It will also assist the police in making assessments of risks of crime and disorder. I commend the order to the Committee.
Lord Evans of Temple Guiting
My Lords, I am sure that everyone in the Grand Committee is grateful to the Minister for her full and clear exposition of the order. As she said, this was originally published when Labour was in government and, although not only for that reason, we welcome the order. I have three fairly minor questions for the Minister and I would be grateful if she could let me know what she feels about them. First, we are looking for an assurance on the substantial cuts to police budgets and the coalition’s desire to see freezes to local authority budgets. Will that impact on the police’s ability to object to local authorities to administer interim authority notices? Secondly, in the case of temporary event notices we understand that the change from 48 hours to two working days is proposed because some police stations are not staffed at the weekends. The coalition is proposing substantial cuts to front-line policing. Can the coalition assure us that the police’s ability to object to TENs will not be compromised by cuts to front-line policing? Finally, do the Government have any plans to change the fees for temporary event notices? Those are the only three comments that I wish to make. Again, I thank the Minister for such a clear presentation of the order.
Lord Addington
My Lords, having looked through the order and the rather daunting Explanatory Notes, I realised that basically this series of changes is designed to make it easier for everyone involved to operate. Extending the period from seven days to 28, as proposed, is a positive suggestion. The idea of going to working days rather than an arbitrary number of hours for police objections is another totally sensible suggestion, as are the other extensions of periods that are brought in. When the previous Government and the current Government have proven something, it would be foolhardy to go beyond that.
Lord Dholakia
My Lords, the Minister mentioned that she does not envisage any substantial police objections. Was there any consultation with the Association of Chief Police Officers on this matter? Sometimes there may be individual points of view from different constabularies, but seldom do we get a total view. It would be helpful to know whether such consultation took place and, if so, the response.
Baroness Rawlings
My Lords, I am most grateful to noble Lords for their questions, which I hope to be able to clarify. I can assure the noble Lord, Lord Addington, that there will not be any further cuts in that respect. As to the comments made by the noble Lord, Lord Dholakia, we have had several consultations. The list is in the dossier. The objections were included in what I said earlier. I can send the noble Lord the details of the consultations. I thank him for that rather important point.
I thank the noble Lord, Lord Evans, for his three questions. First, I should clarify that the Delegated Powers Committee said that the order needed to be an affirmative instrument so that it would have to be approved and so that a positive case would have to be made for it. As an affirmative instrument, it must be approved, which is why we are doing this today. The committee stated:
“The Committee considers that the Order meets the tests in the 2006 Act, is not otherwise inappropriate for the LRO procedure, and recommends that it be upgraded to the affirmative procedure”.
The noble Lord also asked whether the Government intend to charge a fee for a temporary event notice. At the moment, the fee for a TEN is £21. The Government have no plans to change that. Regarding cuts, we estimate that the change to the TENs objection period would have an extremely small notional burden on the TEN users of £8,000 to £61,000 annually in England and Wales. We have no plans to cut the licensing fees. The fees are set to cover the cost of administering and enforcing the licensing programme. Those costs should not fall on the taxpayer. However, we will look to deregulate where possible and, where regulation is needed, to reduce the burden.
The third question concerned the revival of licences. I imagine that by “applications”, the noble Lord means reinstatement of transfers. The estimate is 494 to 658 additional revivals of licences per year.
I thank the Committee on behalf of the House for having scrutinised the order. I can give assurances that we treat this matter with all seriousness. I am sure that any future licensing legislation will be the subject of lively debate and that there will be further discussions on this subject. I am sure that noble Lords recognise the positive benefits of this measure and its importance. As Walter Bagehot said in 1867:
“The natural impulse of the English people is to resist authority”.
I trust that, in these circumstances, that will not be the case. I commend the order to the Committee and welcome the furthering of the recommendations.
National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010
(13 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has now considered the National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010.
Relevant document: 12th Report, Session 2009-10, from the Joint Committee on Statutory Instruments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that the Grand Committee does report to the House that it has considered the draft National Assembly for Wales (Legislative Competence) (Housing and Local Government) Order 2010. For ease, I shall henceforth refer to this order as the housing LCO. This is the first LCO that I have spoken to in this House. It is a particular pleasure to deal with devolution issues that relate to Wales after many years of being more familiar with devolution issues that relate to Scotland.
This draft housing LCO was approved by the National Assembly on 24 February. The previous Government laid the draft LCO before Parliament in March. For whatever reason, no time was found to debate the LCO in either House before the general election. I am pleased that the coalition Government committed to take forward the housing LCO in our programme for government, which is what we are doing. The draft LCO was approved by the other place on 7 July, having been debated in Committee on 5 July, and it comes before this Grand Committee today for debate only two months after the coalition Government took office.
Noble Lords may be aware of the discussions that have taken place between the coalition Government and the Welsh Assembly Government in relation to the scope of this LCO. I shall address that issue immediately. The coalition Government have been concerned that this LCO devolves legislative competence that the Assembly would not necessarily need. The Assembly Government are committed to seeking legislative competence to suspend the right to buy in areas of housing pressure. However, competence in the LCO covers disposals of social housing generally, including abolition of the right to buy. Indeed, as I understand the situation, when an LCO on this issue was first proposed in 2008, the Welsh Affairs Committee in the other place recommended that it should not proceed while it included the ability to abolish the right to buy. We are grateful indeed for the reassurances given by the Welsh Assembly Government that they are fully committed to the right to buy scheme and have no intention whatsoever to abolish it.
The coalition Government are similarly grateful for a further reassurance from the Assembly Government not to seek powers to usurp the views of local people and dictate the location of Gypsy and Traveller sites. Given these assurances, and our commitment to progress this order through Parliament before the Summer Recess, I am pleased to support this LCO today.
Lord Rowlands
I apologise for interrupting the Minister, but as this is a vital point perhaps we might clear it up straightaway. He says that an assurance has been given, and I am sure that that is true, but paragraph 7.23 of the Explanatory Memorandum states that,
“legislative competence would enable the Assembly, if it so wished, to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.
That suggests that the Assembly might abolish the scheme but replace it with something else. Does the present competence order still allow the Assembly to do such a thing?
Lord Wallace of Tankerness
My understanding is that it does, although equally I understand that it is the intention—if only that of the present Welsh Assembly Government, which would not bind their successors—to use this to suspend the right to buy in areas of housing pressure. I understand, on the point made by the noble Lord, Lord Rowlands, that they could do what the Explanatory Memorandum suggests.
The agreement to take forward this LCO, following three years of some frustration and procedural hurdles, demonstrates the success of a relationship of mutual respect and collaboration between Westminster and Cardiff. I am sure that noble Lords will agree that, in the new politics of this new era, mature attitudes of co-operation and compromise are signs of strength, not of weakness.
I turn to the detailed content of the draft order. The order will devolve legislative competence in relation to many aspects of housing policy, enabling the Welsh Assembly Government to propose legislation to implement their new housing strategy Improving Lives and Communities: Homes in Wales. The strategy is to be implemented through an action plan and it is my understanding that in some areas this will require primary legislation. I hope that this LCO will facilitate the implementation of the strategy. Indeed, I understand that earlier today the First Minister announced the Welsh Assembly Government’s legislative programme for 2010-11. He announced plans to introduce a housing Measure, making use of the legislative competence devolved to the National Assembly via this LCO, subject to its being passed and subsequently approved by the Privy Council. As I think the First Minister indicated, it would allow for local authorities to apply to Welsh Assembly Government Ministers for the temporary suspension of the right to buy in areas of housing pressure, as well as increasing those Ministers’ intervention powers in relation to social housing.
The draft order is structured around two key themes: social housing and meeting the housing needs of vulnerable people. The LCO would also devolve competence in relation to the amount of council tax charged on second homes. Specifically, it will insert seven new matters, Matters 11.2 to 11.8, into Field 11, the housing field, of Part 1 of Schedule 5 to the Government of Wales Act 2006. It will also insert one matter, Matter 12.18, into Field 12, the local government field.
Taken together, Matters 11.2 and 11.3 would allow the Assembly to legislate to strengthen powers of early intervention in failing housing associations and modify the approach taken to allocations. Matter 11.4 would allow the Assembly to legislate to standardise local authority and housing association tenancy agreements, thereby removing an impediment to stock transfer. Matter 11.5 covers the disposal of land held or used for social housing. The One Wales agreement includes the commitment to,
“draw down legislative power … in order to suspend the Right to Buy in areas of housing pressure”.
The Assembly Government want temporarily to suspend the scheme in specific local circumstances to address local difficulties. As I have said, Assembly Government Ministers have made it clear that they have no intention of abolishing the right to buy in Wales.
Matter 11.6 covers housing-related support to those who need help to occupy their homes. Matter 11.7 is about provisions by local authorities of caravan sites for Gypsies and Travellers. The Assembly Government intend to propose legislation compelling local authorities to provide sites for the accommodation of Gypsies and Travellers when a need is clearly identified. The coalition Government are grateful to the Assembly Government for their assurance that they will not seek routinely to dictate to local authorities the location of these Gypsy and Traveller sites.
Baroness Gale
My Lords, I thank the Minister for his statement today, which I very much welcome. I congratulate him on his appointment as Minister responsible for Welsh affairs. As he said, this is the first time that he has spoken on such Welsh matters, but I am also aware of the Minister’s great service in Scotland, both as an MP and as an MSP, where he served as Deputy First Minister in the Lib-Lab coalition from 1999 to 2005. I am sure that in time the Minister will realise that Welsh politics are very different from Scottish politics. No doubt, the number of distinguished Welsh Peers on both sides of the coalition Government will be able to advise him on the nature of politics in Wales. I wish him well.
The housing LCO has taken considerable time to get to its final stages. The original housing LCO was considered by the Welsh Affairs Committee in 2008, having been submitted by the Welsh Assembly Government in 2007. At that time, reservations were expressed by the Welsh Affairs Committee regarding the draft and the contradiction between the Explanatory Notes and the LCO, specifically on to the right to buy. The Welsh Assembly Government undertook a consultation and elaborated considerably on the approach to social housing. There were several reports, the most important of which was, we believe, the Essex report. Many of its recommendations were incorporated in the new housing LCO.
That revised LCO was considered by a scrutiny committee of the Welsh Assembly and by the Welsh Affairs Committee in another place during the previous Parliament. Conservative members of the Welsh Affairs Committee voted against the housing LCO, objecting to the reference to the Welsh Assembly Government having reserved power to ensure that the local authorities in Wales provided sites for Gypsies and Travellers. They also believed that the LCO should not make any reference to the lifting of the right to buy.
As the general election approached, it seemed that the LCO would have to go into the wash-up, but unfortunately for the Welsh Assembly no agreement could be reached because of the Conservative Party’s objections, which were set out in a letter dated 1 April from the then shadow Minister for Wales, David Jones, to the then Under-Secretary of State for Wales, Wayne David. It outlined the two objections to the proposed order. It stated:
“We … are concerned that … it would give the Welsh Assembly competence to abolish the right to buy. You will recall that during the select committee evidence session I questioned both you and Jocelyn Davies closely on this issue. Both you and she confirmed that it was no part of the Assembly government’s policy to abolish the right to buy. In those circumstances therefore the competence … is otiose. Secondly, the order would empower the Assembly to pass Measures that would give Welsh Ministers the right to impose a location of Gypsy and traveller sites upon local communities. The Conservative Party believes very strongly that the local authorities are best placed to decide the location of traveller’s sites, being closer both democratically and actually to the affected communities”.
The Conservatives went on to make it clear that they would not agree to the housing LCO as it stood, so it was not included in the wash-up, much to the disappointment of those in the Welsh Assembly who had been waiting for a conclusion to this matter.
The Deputy Chairman of Committees
My Lords, there is a Division. Is the noble Baroness about to wind up her remarks?
The Deputy Chairman of Committees
We will come back to the noble Baroness, Lady Gale, after the Division. The Committee will adjourn for 10 minutes.
Baroness Gale
As I said, the housing LCO could not be included in the wash-up, much to the disappointment of those in the Assembly who were waiting for a conclusion to this matter. A report in the Western Mail on 24 June stated:
“Conservative Wales Office Minister David Jones said he was not prepared to allow Ms Davies’ Sustainable Housing Legislative Competence Order (LCO) through unless it was amended to make clear that the right to buy council houses would not be abolished in Wales … Politicians at Cardiff Bay have been trying for three years to get legislative powers relating to housing transferred to them. An earlier version of the LCO was knocked back while Labour was in power, and the new coalition at Westminster has rejected the latest draft … Meanwhile Welsh Liberal Democrat housing spokesman Peter Black claimed that the veto of the LCO breached the Westminster coalition agreement. The relevant clause in the agreement states: ‘We will take forward the Sustainable Homes Legislative Competence Order’”.
On 29 June, the Wales Office issued a press statement:
“In the spirit of mutual respect between Westminster and Cardiff Bay, the Welsh Office will take forward the Assembly’s Sustainable Housing LCO unamended, Welsh Office minister David Jones announced today (28 June) … Mr Jones said: ‘Last week Deputy Minister for Housing Jocelyn Davies and I reached an amicable agreement on an amended Order to be taken forward. But having made further enquiries, the Welsh Office established that it would in practice be virtually impossible for the amended Order to complete its passage through Parliament to enable it to be put to the Privy Council for approval in July. We therefore decided, in pursuance of the spirit of mutual respect and in reliance to the assurances given by the Welsh Assembly Government to proceed to put the original draft LCO in its unamended form before both Houses of Parliament for confirmation as quickly as possible, so that the Order may be made by the Privy Council next month’”.
Why was there this change of heart? After all this time, in the matter of a few days—between 24 June and 28 June—why did the Wales Office Minister decide that the original LCO was now able to proceed?
Whatever the reason, we are pleased that there has been this complete U-turn from what the Conservatives were saying before and after the general election. This is welcome news. At long last the Welsh Assembly will get the LCO that it wanted, which will bring about a much improved method of social housing in Wales, meeting the needs of the Welsh people in a more positive and constructive manner.
Lord Roberts of Conwy
My Lords, I, too, welcome my noble and learned friend to his new position in the coalition Government and I wish him well, particularly in relation to Wales.
As we have heard, this LCO has been a long time coming, but not under this Government. In fact, we have made up for whatever delay there was under the previous Government. However, it is now here and I do not intend to delay its passage, although I am not entirely uncritical of it. We are, after all, transferring extensive legislative powers in the housing field in this order and those of us who have previous governmental experience in this area are anxious to assist the National Assembly and its Government to exercise those powers in the best interests of the people of Wales. I had ministerial responsibility for housing in Wales in the early 1980s when the right of council tenants to buy their rented properties was first introduced to Wales, much against the wishes of local housing authorities. Of course, the right to buy quickly became a popular policy with sitting secure tenants and has remained so over the years.
According to the Explanatory Memorandum—page 8, paragraph 7.20—there have been some 140,000 sales in Wales, which is almost half the original social housing stock. The right to buy was not abolished during the 13 years of Labour rule, so one may conclude that it was accepted by the major parties. The Assembly has, however, reduced the maximum discount available from £24,000 to £16,000 and has extended the rural areas where there are restrictions on resale of right-to-buy properties. So perhaps the right to buy is not sweet music to everyone’s ears.
The benefits and advantages of owner occupation to the owner and to society are obvious and I shall not rehearse them. The key fact to remember is that the secure council tenant who becomes a buyer takes an immediate interest in the maintenance and improvement of his or her property and no longer waits for the council landlord to cut the privet hedge, subsidise the rent and perform all the functions of a responsible landlord. There is a tendency on our part now to forget just how heavy a burden housing subsidy and repair and maintenance costs can become on housing authorities and taxpayers. Those who are intent on increasing social housing should consider these factors and realise what they are letting themselves in for in terms of cost when the stock is enlarged.
A local authority’s housing stock may be reduced as a result of right-to-buy purchases, but the locality’s total available housing stock is undiminished. That point, too, is often overlooked or ignored. When the house is sold to its tenant, some people take the view that that house seems to have disappeared, but that is not the case.
As my noble and learned friend said, assurances have been given by the Assembly Government Minister, Jocelyn Davies, that the intention of the Assembly is not to abolish the right to buy but to limit sales in areas of housing pressure. There is nothing new in that. Limitations were imposed on council house sales in sensitive areas such as the national parks from the earliest days and such restrictions continue. They are not confined to Wales; they also apply in the Lake District, for example.
What is important in this right-to-buy context, in this order more generally and in the legislation that may flow from it, is that the best interests of the individual and his or her rights should be preserved and not overridden to enhance the control and power of authorities over citizens’ lives, as has happened in the past. There is a great deal of talk these days about more powers for the National Assembly; indeed, we are about to have a referendum on the issue next year. I for one would like to hear more talk in our representative institutions about the devolution of powers to a more local and community level. This is why there has been such concern about an Assembly power to direct local authorities to provide specific locations for Gypsy and Traveller sites, irrespective of the views of local communities. The individual’s rights and well-being must also be carefully considered in the context of the provision in this order to allow increased council tax on second homes. Such decisions, taken too abruptly and in a sweeping fashion at the wrong time, could cause a severe decline in property values across whole swathes of Wales and could cause chronic rural depopulation, such as we experienced in mid-Wales in the previous century, to rear its ugly head again; it could at least worsen the depopulation problem.
Finally, we must recognise that we are facing an era of severe austerity as a result of the legacy of unparalleled debt that this Government have inherited from their prodigal predecessor. Many things that looked achievable at one stage no longer appear so. Adapting to our new and straitened circumstances will take time—longer for some than others—but adapt we must. One of the keys to such adjustment is to realise that the state and its ancillary authorities cannot do everything; they are restricted by limited resources and must, like the rest of us, live within their means. Where people and communities can do things for themselves, they must be encouraged to do so. There seems to me no credible alternative approach in the present circumstances.
Lord Rowlands
My Lords, I, too, offer my best wishes to the noble and learned Lord, Lord Wallace. He has a remarkable record. He has served in not one but two coalition Governments, which is pretty good going. He and I go back a long way. In the 1980s, as young Back-Benchers—not so young in my case, but he was young—we spent some time trying to make Ministers’ lives more uncomfortable on various energy Bills. I welcome him. It is not our job to make his life more uncomfortable than necessary during his service to this House and to Welsh affairs.
Like other noble Lords, I believe that the role of this House in scrutinising LCOs is to consider the drafting and the process and to ensure, above all, clarity of competence, but not necessarily to pick at the policies, as the noble Lord, Lord Roberts of Conwy, has done. That is not our fundamental function, because those are the functions of elected Members; it is they who make the decisions and come to the conclusions that they do about whether we should adopt this or that policy. I have never adopted the view that we should take a strong political view, whether one feels strongly for or against an order politically. It is the duty of this House to respond on the process and clarity of competence. As the noble and learned Lord, Lord Wallace, reminded us, he and I served on the Constitution Committee, which began the task of scrutinising these LCOs when they first came into being.
There was an issue of clarity of competence on the right to buy. I was interested in the Minister’s reply to my brief intervention that the competence still stands. Paragraph 7.23 states that the order will give the Assembly the competence,
“to replace the current Right to Buy scheme with improved and updated schemes to assist home ownership”.
That is incorporated in this order; it has not been removed. I happen to support the policy, but I wonder whether the noble and learned Lord and I in our early Back-Bench days would have been as generous about this proposal as we plan to be today. We are saying to the Government that we can give the Assembly the power because it has told us that it is not going to use it. If I was a Minister proposing such a proposition, I would imagine a fair degree of criticism of such a position. However, that is the position that we have arrived at, with the Minister saying that the Government have had assurances that the power is not going to be used—although he admitted that that cannot bind future Governments in the Welsh Assembly. Nevertheless, we are going to let the power go through because it is not going to be used. I confess that that is normally an appealing case to Back-Benchers, wherever they stand on an issue. I look forward to a further defence of that position when the Minister comes to reply.
Before I come to the rest of what I want to say, let me make an aside. As the noble Lord, Lord Roberts of Conwy, said, there have been some 140,000 sales of council property. My constituency days are now more than 10 years ago, but I cannot remember towards the end of my period in the mid-1990s many right to buys being exercised in Merthyr and Rhymney. The first great swathe of purchases took place in the mid-1980s. I am interested to find out how much of a pressure there is. Can the Minister give us figures on how many sales took place last year under the right to buy? I fear and suspect that by far the largest portion of that 140,000 was purchased in the first decade. I wonder how much of an issue it is. Because I no longer have a constituency to serve, I accept that I may not have a feel for whether the pressures are still there and in what form and degree. Perhaps we could have some figures on recent purchases that have taken place—for the last 12 months, for example.
I do not want to quibble with the policy because I have full sympathy with the burden of the case made for this LCO, but I want to put this into an LCO context. I suppose that I belong to a small band of people—there are not many of us—who are fans of LCOs. I happen to be a fan because they arose out of the deliberations of the Richard commission, on which I had the privilege to serve. Wherever one stood on the issue of the full transfer of powers, LCOs were seen as an interim measure that would enable the Assembly to expand legislative competence. Therefore, I have been a great defender of the process and I continue to be one.
Before I sit down, I shall suggest to the Minister that, between now and the referendum, we should assess what has happened and the extent to which legislative competence has been transferred. For example, seven new matters are to be put into Schedule 5 as a result of this one order. When one looks at the informative Explanatory Memorandum and the appendix to it, which shows the other amendments that have been made to Schedule 5 to the Government of Wales Act, one can tot up more than 60 matters that have been included in the schedule since the passing of the Act, as a result of these orders and of framework powers in legislation. I contend that that is a significant and meaningful transfer of legislative competence from Westminster to the Assembly.
Despite the tendency to malign these orders, they have served a legislative purpose, which I am willing to defend wholeheartedly, as a means by which the Assembly has been given competence to legislate. Perhaps in reply the Minister could bring us up to date on how many LCOs there have been. I used to keep count, but an election and a couple of other things have interrupted my arithmetic. I thought that there were a dozen or 15 before, but perhaps he could give us an update on the number of LCOs that have passed through this House. I do not believe that either this or the other place has created a logjam for transferring legislative competence to the Assembly. These orders have gone through.
To date, how many measures in the Assembly have flowed from these orders? Have we been holding up the Assembly in its legislative activity? The last time I took stock, only a third of the LCOs had led to measures. Again, that would be useful informative background to the debates that will take place in the months to come on the transfer of power under Part 4 of the 1998 Act through a referendum. I would like an assessment of where we stand. How many measures have flowed from the orders that we passed in this place and the other place as a result of the 1998 Act?
My other question relating to the informed debate that we should have on these issues in the run-up to the referendum is: what, in total, will be left to transfer under Part 4 in the main areas of policy? Let us take housing, health and education. Paragraph 4.2 of the Explanatory Memorandum says:
“The Welsh Ministers already have devolved to them significant executive powers and secondary legislative powers across a wide range of legislation relating to housing”.
That has already happened. It lists 10 Acts that are involved. In the area of housing, health and education, how much legislative competence has already been transferred within the total responsibility of the Welsh Assembly Government? I have the impression that we have now substantially transferred a considerable degree of competence to legislate in these three key areas. This order is very much an addition to that list.
Finally, I seek clarification from the Minister on the exceptions. As he will know, when we have scrutinised other orders, exceptions have been attached to the order to show that the writ will not run in certain respects. In this case, the exceptions are of a general kind. Provisions relating to housing benefit and to council tax benefit are exempt or excluded from the power to legislate within the Assembly. In the wake, possibly, of a successful referendum, so that Part 4 comes into play, what will happen to these exceptions? Will they remain or will they be swept aside by Part 4? In other words, under Part 4, will the whole area of council tax and housing benefits be transferred legislatively to the Assembly, so that the Assembly can change the character of such benefits? Until now, we have maintained a degree of conformity and uniformity across England and Wales in social security benefits, particularly those for council tax and housing. I should like to see how this will unfold during the debates that we will have in the coming months.
I support the order, just as I have supported, with occasional queries and questions, the orders that preceded it. Once or twice, the Constitution Committee has raised serious issues about drafting. I hope that we can be confident that Assembly consideration of this kind of legislation after a successful referendum will be as vigilant as, I believe, that of both Houses and the Welsh Affairs Select Committee has been in helping us to scrutinise LCOs, which have been an important development in Welsh legislative history.
Lord Roberts of Llandudno
I am grateful to the noble Lord, Lord Rowlands, for jumping to the pulpit ahead of me. Perhaps I may suggest a sermon. I look to the Epistle to the Hebrews, in which we hear about a race that is run quite slowly sometimes. This race has been run slowly: it has taken a long time to get the orders. I am told that for education 18 new powers have been transferred to the Assembly but that there has been only one new power for housing. I am told that most of them do not come from legislative competence orders but that 60 per cent of them come from Bills.
Speaking of the sermon, I feel that I am surrounded by a mighty cloud of witnesses, of people from various departments—for example, the Department for Health, the Home Office, the Welsh Office and others—who have worked at this over many years, which I appreciate. I know them and I call them my good friends, on whichever side of the House they may sit. They have battled away on the Welsh scene over many years.
It is a privilege to have two of my own party colleagues on either side of me. My noble and learned friend Lord Wallace has led in the Scottish Parliament and my noble friend Lord German has been the Deputy in the Assembly in Cardiff. I am lost in this place today. Since 1931, my Liberal colleagues have sat on opposition Benches. Suddenly, we are transferred to the government Benches. We are just settling in. It makes such a difference and it gives us the opportunity to stir things up as regards some of these legislative competence orders.
The hope is—I am sure that this is general to all parties—that in the spring the referendum on additional powers for the Assembly in Wales will result in a yes vote throughout Wales. I think that we have to do it. For one thing, it will save a lot of time and money on these orders coming here and we will be able to devote our time to other issues that possibly deserve more time than they get at present.
Two tests should be applied to this order, as to any other order, according to the Government of Wales Act 2006. The issues to be passed to the National Assembly must correspond to the executive functions of the Welsh Assembly Government—we are not able to introduce anything else—and must relate solely to Wales. Scotland led the way in the settlement that was reached. We have been saying, “If only we had the same powers as Scotland”. We are moving on this issue, but, as I say, the rate is slower in Wales. However, it will speed up after the spring. In Scotland, people knew which powers they had and which powers they did not have. In Wales, we have just kept on asking, “Please can you include such a power and such a responsibility?”. I am sure that this is not the correct way to say it, but we have been opting in, whereas Scotland knows which powers it does not have at present.
This housing order is important. It is a part of devolution in Wales. It gives us the authority to deal with housing matters in Wales. It has been mentioned that we could look at the sale of council houses or social houses. Like many other places, Wales has the problem that the situation differs from county to county, even from parish to parish. In some areas, the housing situation is so grave that it might be necessary—possibly not—to look again at the reasonableness of selling council houses. That could well be a necessity, particularly given the present crisis in which some people are losing their homes. If it gets to that desperate state, we in Wales will have the authority to say, “For the time being let us look at this area and this need”.
The order will add substantially to the powers in Wales. The Assembly Government must decide how they will use those powers. That is what government is about and what devolution is about. It is not that we keep on saying, “Don’t do this, don’t do that”. However, we have the authority in health, education, public transport and now housing to decide our own agenda. It must be within the Assembly’s competence. This order marks a significant move in the development of the Assembly’s powers. Therefore, we on these Benches wish it well. We wish the Assembly Members who will exercise this discretion all the wisdom and all the powers that they need to meet the needs of people in different parts of Wales.
Lord Elystan-Morgan
My Lords, I will detain the Grand Committee for only a very few moments. I, too, join everybody else in congratulating the Minister on his first foray into Welsh affairs in this Committee. I wish him every happiness and every success for the future. I agree very much with the precept that was articulated by the noble Lord, Lord Rowlands. We are not here to consider the basic merits of these devolved matters; we are here to say whether the procedures of devolution set out so clearly in Part 3 of the 2006 Act are properly adhered to. I say that because, like more than one Member of this Committee, I have heard it argued here over the past two or three years that there seems to be some onus of proof on whoever seeks to justify a measure of this nature to show that it has a fundamental benefit for the people of Wales. That is not what devolution is about. If we were to apply such a test, we would be going contrary to the principles set out in the 2006 Act in Parts 3 and 4.
I wholeheartedly support the measures. Indeed, having said that we should not consider them, I would say that they have every merit. In this respect, if ever there was a devolvable issue in relation to Welsh matters it must be in relation to housing or local government. We are dealing with a situation in which there are so many distinctive Welsh nuances that it cries out for devolution. The executive devolution took place a long time ago, soon after 1964, when the Welsh Office was set up. It is only right and proper that there should be primary legislative devolution to attach itself to that.
I take the point made by more than one Member of the Committee that nothing that we do here on these LCOs creates one word of legislation. All that we do is give a passport for legislation to take place in another place. We peg out an area and say to the Welsh Assembly that, now that it has asked for it, within that defined area it can build a legislative edifice. I am not sure how many Measures have come directly from LCOs; I suspect that it is about a dozen, with about half a dozen from other sources.
I have only one other thing to add. I thank whoever was responsible for the Explanatory Memorandum. It is one of the very best that I have read in relation to any legislation, but particularly in relation to these matters.
Lord Jones
My Lords, I support this order and wish the Wales Assembly well when it receives, operates and exploits it. Housing is the basic provision for any family life and I have no doubt that the Wales Assembly will always bear that in mind. The sum total of happiness will be advanced somewhat by the fact that these powers are coming nearer home for the people of Wales. The order will be operated by an Assembly that really believes in it.
I was glad to hear the noble Lord, Lord Roberts of Llandudno, make his speech. He will not mind my saying that it was a Methodist speech, perhaps in more than three parts just slightly so. I always listen with great interest to the noble Lord, Lord Roberts of Conwy. Nobody has served Wales longer than he has or with more dedication. He has great experience, which one hears in his observations on a matter such as this. I congratulate the noble and learned Lord the Minister on his appointment to his office. I saw his entry to the other place, I saw him leave it and I have seen him come back. He has made a strong beginning. I also offer most sincere congratulations to my noble friend on the Front Bench. Nobody knows Wales better than she. She knows Wales like the back of her hand and has served it with great compassion, conscientiousness and commitment. We will all wish her well on the Front Bench in her duties.
After the last general election in Wales, I took the trouble to go to the opening of the Wales Assembly by our sovereign Her Majesty the Queen. She was accompanied by the Consort, the Duke, and by the heir, the Prince of Wales—and he by the Duchess of Cornwall. Having been present in the Chamber looking down on the Royal Family, facing the Government of Wales and the Assembly, I thought that I was seeing some history. The conclusion that I draw from that moment is that the Welsh Assembly is for ever. It is an Assembly of stability and great potential. In any consideration of the order, one has the understanding of where it is going and how it will be best used to the advantage of the people of Wales.
It occurred to me that, having been present at that historic moment for the nation of Wales, I could not see how there would not be more legislative powers in time. I could see the status of the Assembly growing by the year. I could see its importance always advancing and it having more authority and power to raise more moneys, with its standing always growing. I saw the process as irreversible, but I asked myself, “Did the Assembly need to have more Members?”. I then asked myself, “Would this Parliament have fewer Members?”. I do not wish to debate that issue now—nor should I—but I suspect that our nation, Wales, is on track and that the British nation will see something approaching federalism in the decades ahead, whether that should be or not.
None of us, I suggest to the Committee, should be in ignorance of the consequences of what we are doing when we pass these orders for Wales. There is a consequence over and above the use of the order. I sometimes wonder whether Parliaments fully comprehend the consequences of the legislation that they make.
Lord Wallace of Tankerness
My Lords, this has been a positive and constructive debate. I start by thanking all the noble Lords and the noble Baroness for their kind words of welcome and congratulation. I consider it a privilege to be able to engage with noble Lords and, indeed, to re-establish some friendships and acquaintances from my time in the other place, particularly with the noble Lord, Lord Rowlands. Exactly 27 years ago this week—I am an anorak in this sort of thing—I served along with the noble Lord on my first Standing Committee in another place, which was considering the Petroleum Royalties (Relief) Bill. It certainly means a lot to me to be here and to engage with him again.
The noble Baroness, Lady Gale, suggested that I would, over time, get to realise that Welsh politics is different from Scottish politics. The learning curve has been very steep indeed but I had already appreciated that, although I am sure that there is still much more to learn. In fact, with the happy situation of belonging to a federal party along with my noble friends here, we have learnt from one another over a number of years how the body politic functions in different parts of our United Kingdom. I join the noble Lord, Lord Jones, in congratulating the noble Baroness on assuming Front-Bench duties. I rather suspect that there will be a number of occasions when we will be facing each other across the Dispatch Box, either in Grand Committee or in the Chamber, and I very much look forward to those encounters.
I welcome the fact that there has been broad agreement and support for the order. Perhaps I might respond to a number of the points raised. First, the noble Baroness, Lady Gale, made a point about the timing of the laying of the order. She asked why my honourable friend the Parliamentary Under-Secretary had apparently changed his position. We could always go into forensic detail about what happened when in the weeks of February and March. My understanding is that the order could have been laid before Parliament before the wash-up. It does not necessarily help us today to speculate on why that did not happen. The point is that, after a bit of a troubled history when another order fell foul of the Joint Committee on Statutory Instruments, we have an order today that has commanded support.
Prisons
(13 years, 10 months ago)
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Lord Dubs
My Lords, I put my name down for this debate on prisons soon after the general election, which was of course before Ken Clarke, the Justice Secretary, made a speech that in some ways has stolen my thunder. I remind noble Lords of what he said, quoting a little from his speech. He said that,
“we spend vast amounts of public money on a growing prison estate and ever more prisoners”.
He went to say:
“I am sure that prison is the necessary punishment for many serious offenders. But does ever more prison for ever more offenders always produce better results for the public? Can we carry this argument on ad infinitum? I doubt it … I believe in intelligent sentencing, seeking to give better value for money and the effective protection that people want”.
None of us could dissent from that. It depends how far the Government can go to take these policies further.
In preparing for the debate, I soon realised that one hour was far too short and that in any case we should not consider prisons in isolation but as part of a wider look at the criminal justice system. I am not advocating being soft on criminals; some must clearly be jailed. But I remind noble Lords that in 1992 to 1993, the prison population was 44,628. The most recent figures this month were 85,097. That is an enormous increase. When I was in the other place seven years before, the prison population showed signs of reaching 44,000 and we felt that the world was coming to an end—it was that serious. Our prisons are grotesquely overcrowded. The question is why Britain has the highest prison population in relation to population in western Europe. I do not believe that we are more criminal; the crime rate is going down and went down in the period of the last Government very significantly, but I do not believe that that is due to an increase in prison population. Other countries have shown drops in rate of crime but their prison population has not gone up.
Two years ago, I was part of a group that launched the Prison Policy Group with Members from all parties and both Houses. We were glad to have as a member the noble Lord, Lord Hurd, a former Conservative Home Secretary, who followed a very similar policy to that being proposed by Kenneth Clarke. Our report, Building More Prisons? Or is There a Better Way? states:
“The recommendations of the Carter report on the use of custody, that the Government should invest in another 10,500 prison places to give a total of 96,000 places by 2014, was taken without consideration of any alternative policies. The cost implications of this policy are substantial, £2.3 billion capital and commensurate revenue costs for the foreseeable future. No evidence is available to suggest that increasing the number of prison places to accommodate a population of 96,000 will make England and Wales a safer place”.
We subsequently hosted a number of meetings at which distinguished people from other countries came and explained how they managed to run a safe country with a much lower use of imprisonment than ours and support from the public for such a policy. These meetings were very informative and we kept asking ourselves how it was that Germany, France, Canada—countries not so different from our own—managed with lower crime imprisonment rates and did not increase their prison populations year by year.
It is estimated that 10 per cent or more of the prison population has a serious mental illness. Although prisoner health has improved over the years, most of them receive inadequate treatment. Prison is not the right place for mentally ill people. They should be treated outside prison, possibly in a custodial sense in mental illness facilities, but certainly it is not much good having them in prison—they get out and they reoffend.
Clearly, the incidence of drug taking in our prisons is very high, as is the incidence of drug taking among people sentenced to prison. However, the rehabilitation facilities for drug addicts are not very good in our prisons. They are often not very good when they get out either. Those people should not necessarily be in prison but in places where they can get proper rehabilitation for their condition. Some time ago, the noble Baroness, Lady Corston, produced a report on women in prison. Again, it is fairly clear that we do not need to have so many women in prison. Many of them are not dangerous or a threat to society and could be better dealt with by punishment in the community.
The number of young offenders is very disturbing. They learn some of the arts of criminality when they are detained. We need to look again at whether all these young offenders need to be detained at all or whether there are not alternative ways of dealing with them. A disturbing number of members of the Armed Forces get on the wrong side of the criminal law when they leave the forces. We need to look at the help and support that they receive when they leave the forces and enter civilian life. It is not an easy transition for them, particularly if they have served in Afghanistan. They need more support and counselling to help ease their path to civilian life.
We would save money if we could transfer foreign national prisoners to the countries from whence they came. I appreciate that these arrangements are covered by treaties, but I doubt that they are all covered by treaties. We need to look at that matter. Helping people in these groups may not lead directly to cost savings. However, there would be a saving in the longer term if we could reduce reoffending rates. I believe that dealing with these groups in the way I have suggested would result in reoffending rates going down.
Some time ago I was talking to a police officer in London who said that he had arrested a young man who had attacked an elderly woman and rendered her unconscious—something for which he would almost certainly go to Feltham. The police officer told me that he went to the young man’s home. His mother was spaced out on drugs and the flat was in a disgraceful condition with dog faeces all over the place. The police officer said to me, “If that young man goes to Feltham, when he comes out he will go back to the same environment and with no help he will revert to his criminal ways”. Surely we have to tackle this at source.
Therefore, I was delighted to read the report by the House of Commons Justice Committee, which came out last December, Cutting crime: the case for justice reinvestment. That is the theme of what I have to say now. It was an important report with sensible recommendations. I shall quote briefly from one of the findings in the summary:
“a large proportion of the resources necessary to tackle conditions known to contribute to criminality—such as social exclusion, low educational engagement and attainment, drug, alcohol and mental health problems, unemployment and lack of housing—are outside the criminal justice system. Additionally, in many cases the relevant services are provided at a local level, whether by local authorities or third sector, voluntary or community organisations. Similarly, much of the support available for the rehabilitation and resettlement of former offenders is in the gift of such local agencies. In contrast, the costs of custody are borne at a national level from a centralised budget. The overall system seems to treat prison as a ‘free commodity’—even if not acknowledged as such—while other interventions, for example by local authorities and health trusts with their obligations to deal with problem communities, families and individuals, are subject to budgetary constraints and may not be available as an option for the courts to deploy”.
I could not say it better than that. That surely has to be the way in which the Government should move forward if they are to give effect to what the Justice Secretary said.
The Select Committee report stated that the aim should be,
“committing to a significant reduction of the prison population by 2015—especially concentrating on women and those whose criminality is driven by mental illness and/or addictions to drugs or alcohol”,
I have one or two brief questions about the prison-building programme. What will happen to what is being talked about in Liverpool and London? Do the Government intend to continue with the previous Government’s prison-building programme? Is it true that the Government are considering selling off inner-city prisons near to where people live and are reverting to the ideas they opposed in opposition to build Titan prisons on available land away from towns and cities? Can the Minister deny that?
Finally, I shall say a brief word about public opinion. It is important, in changing our prison and criminal justice system, to make local people feel involved and to promote confidence in community sentences.
Lord Ramsbotham
My Lords, I congratulate and thank the noble Lord, Lord Dubs, on asking this timely Question between the Secretary of State for Justice's landmark speech of 30 June and the promised Green Paper containing the coalition Government's answer. I welcome the content and spirit of what Ken Clarke said about prisons being places of punishment, education, hard work and change, but how can we effect change in an overcrowded system with a woeful record of failing to protect the public by preventing re-offending, which I understand to be the aim of the criminal justice system of which prisons are a part?
As they look around the prison system, I am sure that the Secretary of State and his Ministers will quickly realise what a priceless asset they have in the many marvellous people who are all motivated to do what is asked of them to the best of their ability. This confirms that at the heart of the problem, and therefore of its solution, are people: prisoners and those who work with and for them. Change means enabling workers to do more with and for prisoners.
This is a song that I have been singing since my first prison inspection in 1995, when I identified some reasons for failure that remain unaltered to this day. I shall briefly outline some of them. First, we need one aim to unite the work of the prison and probation services in their responsibilities for administering sentences awarded by the courts. I suggest that this should be: “To help those committed by the courts to live useful and law-abiding lives”, in line with the 1983 Prison Service statement of purpose and the original “advise, assist and befriend” of the probation service; for prisons must be added the words “in prison and on release”, with the qualifications that prisoners must be treated with humanity and not be allowed to escape.
United by that “doing” purpose, both services should carry out three sequential tasks. First, they should assess what has prevented the individual from living a useful and law-abiding life thus far. Secondly, that should be turned into a programme designed to challenge the reasons, prioritised by severity of symptom and time available. Thirdly, transition and/or aftercare should be arranged; that is, prison to probation, and prison and probation to the community.
To enable helpers to perform more effectively, two organisational changes should at last be made, not least in the interests of saving money. First, prisons should be grouped into regional clusters, as recommended in the White Paper, Custody, Care and Justice, which Ken Clarke will remember from his time as Home Secretary. Regions, including their voluntary and private sector organisations, can then own responsibility for the rehabilitation of their own offenders.
Secondly, in line with the very successful appointment of a director of high security prisons in 1995, bringing a unique consistency to their performance, responsible and accountable directors should be appointed for every other type of prison and prisoner. At last, this will enable good practice somewhere to be turned into common practice everywhere. Finally, in terms of change, I hope that there will be a ruthless pruning of all unnecessary bureaucracy. What is needed to make a national offender management system work efficiently is a structure that enables and supports face-to-face working with offenders—nothing more, nothing less.
There is much more that I could add, but, on the basis of what I saw first hand over five and a half years, and have seen second hand for a further nine, without such structural change, I fear that the hope that Ken Clarke has engendered will be extinguished by a dysfunctional system that has failed the public for too long.
The Lord Bishop of Chester
I endorse everything that the two noble Lords who have spoken have said. I will not repeat the statistics given by the noble Lord, Lord Dubs. In his recent speech, the Secretary of State spoke of the situation as impossible and ridiculous from his perspective as Home Secretary in the early 1990s. It is good to know that the Government are wishing seriously to address the situation, which on their own admission they regard as impossible and ridiculous, in the growth of the prison population.
In his recent speech, the Secretary of State asked how this has come about, but he did not really offer an answer, apart from an assumption that foolish policies have progressively flowed into a sort of mission creep, as reflected in the ever-increasing prison population. No doubt many factors have been at work, but let me offer an underlying cause. Since 1979, we have had what might be called the progressive Americanisation of our society, a process which has brought many benefits. Individual freedom has been encouraged particularly, but not only, in the economic sphere. Things changed somewhat under new Labour, especially in relation to levels of public spending, but the underlying ideology of economic and personal freedom remained largely intact. There have been many benefits from this political philosophy, but the difficulty in basing a society too much upon economic and personal freedom is that it tends to produce exaggerated winners and losers. Over time, the losers easily accumulate into a growing underclass where low-level or medium-level crime is endemic and where criminal gangs can flourish. That outcome has for a long time been very evident in America where the prison population dwarfs our recently inflated levels. We are now beginning to see this in the UK with prisons—full of relatively minor offenders and repeat offenders—too easily becoming academies of crime. The figures for inmates with drug problems are another illustration.
The way forward must be to address the subculture of crime associated with the growing emergence of an underclass. In the longer debate on Thursday, two of my episcopal colleagues will say more on the subject of restorative justice and the role that it should play. However, let me make one broad point in this short debate. Many of those in the crime-ridden underclass have a very low sense of dignity and self-worth. Many come from broken homes and abusive childhoods. That comes home very strongly when you talk to people who are in prison, as I have frequently done. The solution—or part of it—must include a proper recognition of the innate dignity of every human being including, and in some sense especially, those whom society chooses to imprison. On my visits to prisons, I have often felt that the prisoners, for all that they were there to be punished, were not always treated with the dignity that they nevertheless deserved. The refusal to give them the vote is an illustration of that. In my time as a bishop, I have been in a young offenders’ institute where the staff regularly swore at the young people who were imprisoned there. That seemed to be something that the whole system just accepted as a normal feature of prison life, and the governor hardly seemed to be aware of it. I choose that as an example.
Recognising and upholding the dignity of every human being, even when they are being punished by society, is a real mark of civilisation. We are more generally lawless today in some respects; the danger is allowing those whom we imprison to become scapegoats for the rest of society. That cannot be part of the solution. Whatever we do, we have to uphold the dignity of those we choose to imprison.
Lord Mackenzie of Framwellgate
My Lords, I suspect that I may be a lone voice in this place today, but it would not be a debate without listening to both sides. I was the president of the Police Superintendents' Association when the then Home Secretary, Michael Howard, said quite powerfully that “prison works”. He was, of course, right—but he was also wrong. He was right in the sense that if you incarcerate someone for committing a crime, that clearly prevents them from continuing to commit crime against the public during their period of incarceration. It might also work as a punishment and deter the prisoner from continuing to offend—because, presumably, he did not like the experience. It could also deter others outside from committing crime because they do not wish to suffer the same fate. He was also right proudly to boast that crime fell dramatically during his period of tenure at the Home Office. However, Michael Howard was wrong, as noble Lords have expressed well this afternoon, in the sense that experience tells us that large numbers of people who are imprisoned return to crime when they are released from prison.
Where we are failing is in the rehabilitation of prisoners while they are locked up. This requires resources and costs a lot of money. I have talked to many criminals in my 35 years of policing, probably more than many others in this House, and of one thing I am certain—they do not like going to prison. On the other hand, they are all volunteers. We are not in prison; they are in prison. It is the old choice they have: if they commit the crime then, of course, they do the time. But it is not a pleasant experience, as I am sure we all appreciate. Any imprisonment is an unpleasant experience. I think that we could make it more unpleasant by clamping down on the use of things like drugs in prisons and the use of mobile phones to plan and perhaps prepare to commit crime when prisoners come out—particularly for the professional criminal. Those things are tolerated to keep the lid on law and order within prisons.
The first duty of any state is to protect its citizens, both from without and within. That is why I was somewhat surprised and shocked when I heard the Lord Chancellor, the right honourable Kenneth Clarke, pronounce that he was not in favour of short prison sentences. I agree that a short sentence does not allow training and rehabilitation, but it sends a very powerful signal to a recidivist bully or anti-social lout that his—and it usually is a him—behaviour and response to the courts will not be tolerated. I have often heard it said that it is not the prison sentence that deters but the fear of being caught. Again, I do not accept that. In the area that I policed, in the north-east of England, crime was rampant in the early 1990s. We arrested, time after time, the same offenders, took them to court and they were released time after time on bail and continued to offend. Arresting them did not seem to have a great effect. If anything was proof that fear of being caught without a proper sentence was not a deterrent, that was it. The public got fed up with anti-social behaviour in the late 1990s, which was why the anti-social behaviour order was brought in. That results in imprisonment only if all the conditions of the order are continually broken.
The public are fed up to the back teeth with what they see as soft options for people who ruin the lives of victims. The nub of it is that generally such behaviour does not touch the lives of Members of this place, but it hits people on housing estates and people in deprived communities, who are trying to eke out an honest living for themselves and their families. We owe it to them to use prison in a sensible way, as a final deterrent for those who refuse to comply. We need to use prison and to change the rules for those who do not know any rules.
Baroness Stern
My Lords, I, too, am very grateful to the noble Lord, Lord Dubs, for arranging this debate. I declare an interest as an honorary research fellow at the International Centre for Prison Studies at King’s College, London. I, too, welcome the recent statement by the Secretary of State for Justice about a new start in penal policy. I noted the view that emerged from his speech about the value of looking at evidence, and evidence will be the subject of my brief remarks this afternoon.
In his recent speech, the Secretary of State for Justice noted the difference in prison population between what it is today and what it was when he was last in that position. He may also have noted that when he was last responsible for prisons, there was in his department a high-level research unit, the Home Office Research Unit, which was the envy of the world and whose products were read all around the world. I very much hope that the Government will restart putting such high-level and objective work into the public domain. Research and evidence are a good basis for a new policy. I want to look at three areas where evidence might be helpful, although I entirely accept that, in the end, there are political considerations. However, evidence is a helpful start.
First, it is said by some that crime has gone down but that there are more prisoners, so the first must have been caused by the second. As the noble Lord, Lord Dubs, has said, it is hard to find the evidence to sustain that proposition or to square it, for example, with what happened in New York where, between 1993 and 2001, violent crime decreased by 64 per cent, while the prison population dropped by 25 per cent.
Secondly, we know from a mountain of research, particularly a study carried out by Edinburgh University over many years, studying hundreds of children and young people, that putting children and young teenagers into prison is one of the worst decisions we can make if we are aiming at a safer society. That should only be done in the most extreme circumstances.
Thirdly, I suggest that the Minister asks the researchers at the Ministry of Justice to produce a paper showing what makes people turn away from crime and change their whole way of life. I think that such research would show that it is relationships with people who are not involved in crime, it is having bonds linking them to law-abiding society, and it is helping them to change their image of themselves. A policy based a little more on evidence than on what we have seen in the past 10 years would undoubtedly produce better results and a safer society. Does the Minister have any view on the report in the press this morning that Tim Godwin, the new deputy commissioner of the Metropolitan Police, has called for money to be taken from prisons and to be given to community-based schemes for offenders?
Lord Parekh
My Lords, I thank the noble Lord, Lord Dubs, for securing and introducing this debate. Like other noble Lords, I greatly welcomed the Justice Secretary’s initiative on prison reform, particularly his speech on 30 June at the Centre for Crime and Justice Studies. As we all know, and as the noble Lord, Lord Dubs, emphasised, the prison population in England and Wales has reached a record level of 85,000. It has almost doubled during the past two decades, and we must be one of the only countries where this has happened. Our prisons are overcrowded; we have the second-highest incarceration rate in western Europe. If I may draw the Committee’s attention to the ethnic minorities, it is striking that they constitute just over a quarter of the prison population while being no more than 9 per cent of the population at large and that nearly 56 per cent of ethnic minority prisoners are black Britons. In fact, more black Britons are in prisons than in universities.
Prison is obviously not the answer, as all the research that I have consulted, with which noble Lords will be familiar, has shown. We have one of the highest crime rates in western Europe although we lock up so many, so obviously there is no correlation between the two. Public fears about safety have not subsided in spite of our locking people up in those large numbers. As the last election showed, it was the third concern after the economy and immigration. The reoffending rate is as high as 50 per cent; in fact, it goes up to 60 per cent when we look at those given short-term sentences.
Prisons are also extremely costly—something like £39,600 per year. As the Justice Secretary pointed out, it costs more to maintain a prisoner than a boy at Eton. Those who do not reoffend suffer from mental ill-health and remain social misfits who cannot hold a job after they come out. So far as ethnic minority prisoners are concerned, they experience a greater amount of racism and victimisation in prison than outside. They come out very bitter and angry and fuel the ranks of those who wish this society ill.
Basically, the prison system does not work. It crashes and keeps recycling the vulnerable, the mentally ill and the failures of our society. This has to stop. There should be more emphasis on rehabilitation and reintegration into the community than has been the case so far. We should also involve charities and the third sector and fund them from the saving that we would make by making sure that people are not locked up. In fact, as the Justice Secretary said, it might be a good idea to think in terms of paying them by results so that for every prisoner who does not reoffend the third sector receives a certain amount of money.
I have always thought that large prisons are a bad idea because they militate against rehabilitation and integration. Small prisons that are close to the community, like we used to have in older days, make it easier to establish familial contacts and facilitate integration. In this context, it is striking that Canada had a wonderful experiment in the 1990s when it reduced the prison population by 11 per cent. In within seven to eight years, the crime rate fell by 23 per cent in cases of robbery and assault and by 43 per cent in cases of murder.
I shall end by asking the Minister three very simple questions. First, has any analysis been made of how the cuts in public services and welfare provisions are likely to impact on the rate of crime? Secondly, what is being done—indeed, do the Government have any plans at all—to reduce the ethnic minority population in our prisons and to conduct a study of what prison has done to them when they come out? Finally, and this was part of the Lib Dem manifesto and is something which I subscribe to, is it the Government’s policy that there will always be a presumption against short jail sentences?
Lord Dholakia
My Lords, I declare my interest as president of the National Association for the Care and Resettlement of Offenders. I welcome this debate, particularly the contribution by the noble Lord, Lord Dubs. It qualifies him to join the coalition. At a time of swingeing cost reductions when every item of public expenditure is to be scrutinised carefully for cost-effectiveness, we must question the benefits of the prison expansion strategy, particularly as the annual cost of keeping someone in prison is now £45,000. This means asking some fundamental questions. Why do we need to build so many prisons? What is the purpose of prison and who should go there? When offenders are jailed, what should be done to rehabilitate them?
The prison system is seriously overcrowded. Seventy-eight out of 137 jails are holding more prisoners than they were built for, and 20,400 prisoners—a quarter of the prison population—are held in overcrowded cells. The results of all this are inhumane conditions and the risk of self-harm and suicide. It makes it harder to provide rehabilitation programmes, thereby increasing reoffending on release. Prisoners are moved part-way through education or rehabilitation courses, and many are held in prisons far away from their home areas, making it hard for relatives to visit and increasing the risk of family break-up.
So is it vital to end prison overcrowding? Is a strategy of prison expansion the right way to do this? If past experience is any guide, the strategy seems doomed to failure. The present process is like trying to run down an escalator which is moving ever more rapidly upwards, and the prison expansion strategy has absorbed ever-increasing resources which could otherwise be spent on prisoner resettlement, alternatives to custody, crime prevention and victim support, precisely what the coalition is asking for.
Most of the offenders jailed in this country receive short sentences. I shall give the noble Lord, Lord Mackenzie, an example. They spend no more than six months in custody. These short sentences are absolutely pointless because they make no point whatever. They are far too short for sustained rehabilitation programmes but are long enough for offenders to lose their homes and jobs, which makes them more likely to reoffend. Two-thirds of short-term prisoners are reconvicted within two years of release. We need a strategy to reduce the prison population to levels more comparable to our European neighbours. When we examine legislation, prisons should be removed as an option for low-level, non-violent crimes. Courts should be prohibited from using prison, except for dangerous offenders, unless they have first tried an intensive community supervision programme. Health authorities should be compelled to devote adequate resources to diverting mentally disordered offenders away from prisons. The number of people jailed for breach of licences should be reduced by a wider use of other penalties for breach before resorting to custody. Strong measures should be taken to tackle the disproportionate use of imprisonment for offenders from racial minorities.
The most commonly advanced purposes of sentencing are punishment, containment, deterrence and rehabilitation. Society has the right to punish offenders in order to protect the weak from victimisation, but punishment does not have to mean imprisonment. Many community supervision programmes are intensive and rigorous, make real demands on offenders and significantly restrict their liberty. Deterrence is, quite frankly, overrated. Those offenders who plan their offences plan not to get caught. They believe that they can avoid detection. Many other offenders commit their offences thoughtlessly or impulsively and, for them, rational considerations of deterrence hardly come into it.
Research has shown that the highest reoffending rates result from punitive approaches, such as the boot camps in America. The lowest reconviction rates result from regimes which work to change offenders' attitudes and behaviour. We should be aiming to provide practical help for prisoners: accommodation and drug rehabilitation programmes interact with each other because it is easier to hold down a job or sustain a drug rehabilitation attempt. We should regard the size of our prison population as a national disgrace. Instead of a prison expansion strategy, we need a strategy centred on reducing the unnecessary use of prison.
Lord Lucas
My Lords, I declare an interest as I have a close association with a charity called Safe Ground, which works in prisons and addresses the third point raised by the noble Baroness, Lady Stern. May I say how much I agree with her about how effective it is and how difficult it has been to get funding and attention from a Prison Service obsessed with targets and tick-boxes? I hope that that will not be a characteristic of the Prison Service of the future. I greeted Ken Clarke’s announcement with total delight. I have waited 15 years, which is most of my time in this House, for a Home Secretary about whom I can say that—and at last I have one. If we can get the people out of prison who should not be there—principally, to my mind, those with drug and mental health problems—and treat them properly elsewhere, we would make the space in prisons for prison to work properly and do what it should be doing to rehabilitate the people who are in there.
There is no time to put what I am going to say in context, I shall just fire off words of advice at the Minister and hope that he takes them. First, he should not abolish NOMS but allow it to evolve. When you make big reconstructions in places such as the NHS and schools it takes a couple of years for the system to stabilise, for everyone to know what they are doing and for it to become easy to work with again. Prisons just do not have that resilience. There are no populations of qualified professionals such as doctors and head teachers around to bring a system back to normal quickly. It has taken five plus years for NOMS to settle down. It has at last got some degree of stability. Parts of it work very well but there are elements of extreme waste and misallocation, which I am sure this Government will take a knife to. But, for goodness’ sake, allow the structure to evolve rather than shake everything up again, which will make it impossible for other people to work with it. We must also look carefully at this election mantra of payment by results. The only people who can stand that are big commercial organisations. How can little charities, focusing on one part of the problem, ever live under that sort of structure? You will lose an awful lot of good work if you make that the centre of what you are doing.
Secondly, take a lesson from schools and make governors and management teams stay a decent length of time. What would you think of a school which changed its headmaster every 18 months or two years? You would never send a child there, and quite right too. It takes time for a governor to get to grips with a prison. They need to be there five or seven years to make prison somewhere where the governor is the governing influence rather than the bureaucrat in the middle of tick-boxes and targets. You have to learn more from schools than that. You have to support and find ways to involve governors stuck in prisons in outside things, but for goodness’ sake leave them in charge of prisons. The Prison Service could take a lesson from Teach First. Having really high-quality people in a profession makes an enormous difference. You cannot easily take people straight out of university or school into the Prison Service; they need to spend a bit of time in the world first. There has always been a connection with the services and a good flow of people between the services and the Prison Service. There is no reason why that cannot be made into something much more formal whereby we take the best people coming out of the Army, train them up and support them and get a really high-quality cadre into the Prison Service, making it something which people look up to, as they should.
Ministers have set out on a 25-year journey. This is real long-term stuff. The Secretary of State for Justice should be there for the full five years of the Government. The Prisons Minister should be there for the full five years of the Government. If you have rotating Ministers all the time, it is terribly difficult to keep long-term objectives in mind. Your job as Ministers is to take the flak and to stand up there while the Daily Mail throws stuff at you. Things go wrong in prisons. You must have the courage of knowing that you are not risking your next promotion by getting some little thing wrong and running for cover, as Ministers have done so often in the past 15 years. We want to see courage and commitment right at the top.
Lord Bach
My Lords, I thank my noble friend Lord Dubs. This has been a useful debate but he was right to say that it is much too short. However, it is important to discuss issues when we get the chance, even though there are honestly held different points of view, as there are on this issue.
The right honourable gentleman the Lord Chancellor said that his priorities are,
“to protect the public, punish offenders and provide access to justice”.
Given that speech, it seems to me that those who believe that prison should rarely be used as a form of punishment have become a little prematurely overexcited. To be fair to the Lord Chancellor, he is starting a discussion which has a long way to run, and even longer to go before legislation on sentencing and other measures is discussed in Parliament. Debate is a good thing, of course, but it is important—particularly for those who believe that he is going to satisfy their every wish—to read his whole speech and not just the parts of it that you want to read.
For our part, we think it is important to imprison serious offenders, but we also think that it is important to seek to rehabilitate them, whether inside or outside prison. We believe thoroughly in community sentences but they must be sentences that really mean something and, when breached, eventually invite custody. As the chairman of the Magistrates’ Association said in response to the Lord Chancellor’s speech, and indeed as the Prime Minister’s mother said—if she was rightly quoted by her son—from her experience as a magistrate of long standing, many shorter sentences are imposed on those who constantly breach the chances that they have been given. I am afraid that we cannot escape from that, however much we would like to do so. Indeed, one reason why the number of domestic violence offences has gone down is that domestic violence offenders now sometimes receive short sentences of imprisonment. No one thinks that there is no problem with short sentences—of course there is—but it is perhaps not quite as simple as some have made out, even in this debate.
When in government, we spent a huge amount of money on increasing learning in prison, on prisoner work and on dealing with drugs in prison, with an additional allocation to NHS primary care trusts for the total targeted implementation of the integrated drug treatment system. What will happen now if the PCTs are abolished? Outside prison, large amounts were successfully spent on dealing with youth offending so that, now that fewer young offenders enter the criminal justice system, there is a fall in reoffending and a smaller number of young offenders in custody than there were a few years ago. There is also the Corston report and the money that has been spent in implementing that. However, the spend on probation increased hugely by, in real terms, nearly 70 per cent between 1996-97 and 2007-08. It is sad to think that the budget, which we set of £870 million for the year 2010-11, has already been reduced by £20 million by the new Government. Goodness knows what is to come.
Therefore, although we make no apologies for our policy towards an increase in custody for those who deserve it, we point out the obvious: that non-custodial disposals are expensive, too, if they are to work. The Lord Chancellor was honest when he said that,
“I … cannot promise that we will be investing vast amounts of public money into non-custodial sentences across the country”.
My point is that prison is expensive—of course it is—but so are alternatives that also work.
I end by asking the Minister a couple of questions which I hope he will answer. First, does he agree that, as the figures make clear, there has been a substantial decrease in the level of crime over the past 15 years? My second question, which is linked, is: if the answer to my first question is yes, does he seriously believe that the decrease in the level of crime has nothing whatever to do with the fact that more people are in prison for longer? If that is the Government’s view, then many ordinary people who have been, but are no longer, the victims of crime will be horrified.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I have already said in the margins of this debate that we really need at least five hours to cover the issues. I shall start with the point just made by the noble Lord, Lord Bach. There have been decreases in crime. I shall leave it to the criminologists to decide the reasons for that. I am sure that one of the factors, not only in this country, but in most advanced countries, is that we have gone through a period of considerable increases in prosperity, and there is a correlation between periods of prosperity and levels of crime, but I would rather leave that to the academics. The point was made earlier that when criminals are in prison, they are not free to commit crimes. I once attended a lecture by a former prison adviser to Ronald Reagan who estimated that the right prison population for Britain to guarantee that all the crime-committing criminals were off the streets was about 180,000.
What has caused the Lord Chancellor to raise this issue is that there is concern that prison has produced a whirligig of people going in and coming out which needs serious debate. That is why I welcome this debate and the others that will follow it—indeed, there is another on Thursday. The Lord Chancellor deliberately provoked the kind of discussion that we hope will bring forth ideas about our approach to these matters so that we can see if we can find something better. I am not here to say that the previous Administration did nothing right in their 13 years. Indeed, they did a lot of good things. We would be wrong if we did not face up to the fact that prisons produce more criminals and therefore there is a reasonable desire to look at rehabilitation and alternatives to prison.
It is impossible for me to cover all the issues. There are two points about ex-servicemen, and both have been made. There are a worrying number of ex-servicemen in prison, and there is a need to look at this issue. I understand that prison in-reach promotes the wide range of help and support available to veterans, but we should do more. I take the point made by the noble Lord, Lord Lucas. I have thought for a long time that we should do far more to recruit ex-servicemen into the probation service and the Prison Service because many of the skills taught in the modern military are readily transferable. When I have read of some dreadful case of a young social worker going to deal with a problem family and being unable to gain access to a vulnerable child or whatever, I have thought that perhaps an ex-serviceman with a little more life experience might have got that access. That is a resource we should look at.
It is equally so with mental health. There are far too many people in our prisons with mental health problems. We are committed to improve offenders’ access to services that deal with the priority areas of mental health and learning disabilities. It was pointed out to me the other day that, even apart from mental health, the scale of illiteracy in prisons suggests that there is a linkage that may relate to the points that were made about a lack of self-appreciation. If you are illiterate, you tend to have a poor opinion of yourself in a society that depends so much on communications.
Young offenders have also been mentioned, and the how, why and what of the remarkably good figures on the drop in youth offending. However, we must follow the line of keeping young people out of the prison system if at all possible and look for alternatives. That is true, too, of women offenders. The Government are committed to looking at how to divert women away from crime and tackle women’s offending effectively. We broadly accept the recommendations of the Corston report in this area.
I am not sure whether I can cover the other points that were made in this response. I noted the idea from the noble Lord, Lord Ramsbotham, of regional clusters and directors with specific skills for prisons alongside a pruning of bureaucracy. On new prison build and the shape of our prison estate, we will have to look at what the sentencing review and what some of the initiatives launched by the Lord Chancellor’s great debate produce before we make a decision on that. The right reverend Prelate the Bishop of Chester rightly warned us about the academies of crime. I welcome the intervention of the noble Lord, Lord Mackenzie, because it is very important that we remember the victims as well as the criminals. Ken Clarke keeps on telling all his Back-Benchers that he did not say that short sentences can never be used or should be abandoned. I urge all noble Lords to read the whole speech; it is well worth it.
I shall stop trying to respond to the specific points, because I have run out of time. We are looking at ways in which to divert funds from custody to community work. However, as has been recognised, there will always be a need for prison, either because of the seriousness of the crime or the continuing risks posed to the community. Public protection remains paramount but, to echo my right honourable friend the Lord Chancellor in his recent speech on criminal reform, prison is not just a numbers game. It is not about how many offenders we can lock up or simply reducing the prison population for the sake of it. The challenge that we face is far greater than simply getting the numbers right; prison must be a place of punishment but must also rehabilitate offenders if we are to stop them committing crimes again and again. About half of all crime is committed by people who have been through the criminal justice system before, which is hardly surprising given the limited available time—a point that the noble Lord, Lord Dholakia, made—to work on offenders during short sentences.
What use is a short period in prison if a prisoner will simply return, not having changed his ways in the slightest? We must do more to tackle the root cause of reoffending. In practice, that means prisons that are also places of education, hard work and an opportunity for change. For example, the Government are currently exploring how prisoners could spend more of their time in productive, meaningful work. It also means community sentences that are rigorously enforced and giving offenders the chance to find a job and accommodation and become drug free.
All this sits in the wider context of our commitment to conduct a full assessment of sentencing and rehabilitation to ensure that it is effective—effective in deterring crime, in protecting the public, in punishing offenders and in cutting reoffending. We need a new, intelligent approach that often recognises the circumstances of the individual case. As has been mentioned, the Government alone cannot, of course, do that. The private and voluntary sectors must be engaged, and our aim is to empower communities to take responsibility in this area. We are looking at alternative custody projects, which provide the courts with enhanced community sentencing options. I have been interested by one such which was initiated by the previous Government on intensive probation supervision. We will look at the outcome of that, but again it is very cost-intensive.
My attitude has never been one of reform for reform’s sake, or because of commitment to some woolly liberalism. The noble Lord, Lord Mackenzie, is right to remind us of the victims, but I am committed to this programme because common sense and practical politics dictate that we explore alternatives to that endless and expensive whirligig of crime, imprisonment, release and reoffending which marks out the failures of our present system. It is all too easy, as has been said, to be intimidated by the cheap populism and “bang ’em up” mentality of the popular media. Perhaps that is the advantage of having a Lord Chancellor at 70 and a Minister of State at 67; we have no long-term ambitions other than to make sure that this policy works. We will resist that temptation and, with the help of debates like this, explore alternatives to a prison system which neither successfully deters nor sufficiently rehabilitates.
Committee adjourned at 6.20 pm.
House of Lords
Introduction: Baroness Liddell of Coatdyke
Introduction: Lord Black of Brentwood
Introduction: Baroness Browning
BBC World Service
(13 years, 10 months ago)
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Lord Fowler
To ask Her Majesty’s Government what plans they have for the BBC World Service.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My right honourable friend the Foreign Secretary has described as essential the role of the BBC World Service in helping to deliver an ambitious foreign policy agenda. We continue to respect its complete editorial independence, and it is of course respected worldwide for its balanced and well informed programmes. The BBC World Service is funded through the Foreign and Commonwealth Office through grant in aid. In line with the rest of Whitehall, we face budget pressures and are carefully scrutinising all expenditure. The BBC World Service is not exempt from that ongoing process.
Lord Fowler
My Lords, I thank my noble friend for that reply. Will he also remember some other words of the now Foreign Secretary last year:
“Britain will be safer if our values are strongly upheld and widely respected in the world”?
The World Service has an audience of 180 million people a week across the globe—a figure far higher than that of any other international broadcaster. Is not the World Service an unrivalled way of demonstrating the values of this country?
Lord Howell of Guildford
I heartily endorse everything that my noble friend, with his considerable experience, rightly says. The World Service is an immensely powerful network for soft power and for underpinning and promoting the values for which we all stand. Everything that he says is right.
Baroness Kinnock of Holyhead
Does the Minister agree that in these very unstable times there is a clear need for unbiased and independent news and information, which is uniquely provided by the BBC World Service? Does he also agree that a 25 per cent cut will inevitably lead to challenges that the World Service will find difficult to meet? That is what is being proposed and it is an unacceptable threat to the world’s most respected broadcaster.
Lord Howell of Guildford
I certainly agree with the first point that the noble Baroness makes. Indeed, one wants to see a well funded and effective BBC World Service, but she has to recall that under her Government a substantial cut was imposed as a result of the fall in the value of sterling, which must have hurt a lot. Under the cuts announced on 22 June by my right honourable friend the Chancellor, the BBC World Service has to make a modest further contribution and—I have to say, given the appalling financial situation that we have had to unscramble and are still unscrambling—there will be further spending-round cuts. That is unavoidable and we will all have to share them.
The Lord Bishop of Chester
My Lords, given the general recognition that peace in our world requires more religious understanding and peace between religions, does the noble Lord share my disappointment that over the past 10 years the religious programming output of the World Service has dropped to a third of what it was before?
Lord Howell of Guildford
Yes, I share the right reverend Prelate’s disappointment. Although this is strictly a matter for the editorial decision of the BBC World Service and has nothing to do with government guidance, I share his view and hope that some changes may be possible. However, that is a personal view.
Lord Alton of Liverpool
My Lords, one of the lessons that we should learn from the Cold War is that benighted people living in beleaguered lands were often told the truth as a result of BBC World Service transmissions. Particularly in this day and age, against the hubbub of internet transmissions often made by extremist organisations with their partisan agendas, is it not more important than ever to do as the noble Lord, Lord Fowler, said and maintain our maximum support for the BBC World Service?
Lord Howell of Guildford
It certainly is. The noble Lord, Lord Alton, is absolutely right and I emphasise that the overall budget still allocated is substantial, has risen substantially over the years, and amounts to more than 20 per cent—possibly almost 25 per cent—of the total budget of the Foreign and Commonwealth Office. We are talking about very large sums of money backing the BBC World Service, not small sums.
Lord Anderson of Swansea
My Lords, the FCO is not ring-fenced like DfID and clearly always looks to the grant-in-aid bodies such as the British Council and the World Service when cuts come. Can the Minister confirm that the BBC Arabic TV service and the BBC Persian service are both at risk and explain how that coincides with the vision statement of the Foreign Secretary on 1 July this year, when he spoke of extending our “global reach and influence”?
Lord Howell of Guildford
My Lords, the question of what services are adjusted, reviewed and so on is for the BBC World Service. The Arabic service is under review, not, I think, for funding reasons but because impact and competition have been the problem. The Farsi service continues to be well funded, as my right honourable friend the Prime Minister said the other day in the other place.
Lord Steel of Aikwood
My Lords, in view of the rather ominous last sentence in the Minster’s original Answer, I ask whether he is aware that the World Service has made cuts in the last two financial years of some £11 million. It is making strenuous efforts to use the new technologies and reduce costs. If the Foreign Office grant is cut, can we not look to DfID to make up any shortfall?
Lord Howell of Guildford
My Lords, it is possible that some of the BBC World Service activities can be categorised as overseas aid and could be supported by DfID. I know that matter is being looked at. The other problem for the BBC World Service is that, as the shortwave transmission systems tend to become outdated, it has to seek transfer on to FM systems with local co-operation of local stations around the world. I am afraid that all that costs money. The cuts in the past as the result of the fall in sterling were bitter and tough. The cuts under the 22 June restraints announced by the Chancellor are modest. For the future, I can only say that I totally share your Lordships’ view that this is an immensely valuable service. We will do our best to safeguard it but we are not ring-fenced.
Baroness Chalker of Wallasey
My Lords, while understanding the need to make necessary cuts, as a former Development Minister I recommend that my noble friend has a serious talk with the Department for International Development. It is engaged in much valuable education work. That is also what the BBC World Service does. That should be a shared responsibility, not one falling solely upon the Foreign Office.
Lord Howell of Guildford
My Lords, my noble friend is absolutely right and I always listen closely to her recommendations. This is a correct recommendation: we are having such close talks. The possibilities for the future are there but it remains the fact that the World Service is independent, financed by grant in aid. It is an immensely valuable tool, as my right honourable friend the Foreign Secretary said, in the promotion not only of this country’s interest but of peace and stability throughout the entire world.
Health: Diet
(13 years, 10 months ago)
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Lord Krebs
To ask Her Majesty’s Government what plans they have for improving the dietary health of the population.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we believe it is for individuals to take responsibility for their health, including healthy eating. The Government can put in place ways to make this easier and support people. We are developing our proposals to achieve this.
Lord Krebs
My Lords, I thank the Minister for that reply and declare an interest as a former chairman of the Food Standards Agency. The Minister will be aware that dietary ill health contributes to about 100,000 deaths per year in this country and that during the past 10 years the three major initiatives to improve dietary health have been instigated by the Food Standards Agency: improved labelling, restrictions on the marketing of food to children, and the reformulation of processed food. Why does the Minister think the dietary health of the population will be improved by moving responsibility from the Food Standards Agency to the Department of Health, which has so far shown no interest in this matter? I understand health officials have calculated that it will be more costly to consolidate this responsibility in the Department of Health rather than the Food Standards Agency.
Earl Howe
My Lords, first, I pay tribute to the noble Lord’s distinguished chairmanship of the Food Standards Agency. The Government recognise the important role that the agency plays, and a robust regulatory function will continue to be delivered through the FSA. As part of our wider drive to increase the accountability of public bodies, and reduce their number and cost, we are also looking at where some of the functions of the FSA sit best to ensure that they are delivered most efficiently. No decisions have yet been taken, but we are examining the matter carefully.
Baroness Gardner of Parkes
My Lords, does the Minister agree that one major problem with diet is far too much liquid in the form of alcohol? Is he aware that in the other place, at afternoon tea between 4 pm and 6 pm, many groups hold an event to which many of us are invited, and frequently we are not even offered the option of tea but encouraged by the catering department to have alcohol at four o'clock in the afternoon? Does he not think that we could do something about that, closer to home?
Lord Cunningham of Felling
My Lords, one of the principal reasons for the creation of the Food Standards Agency was to remove such decisions from political and ministerial control. This came about because of the loss of trust of the British people in guidance and statements from Ministers following things such as BSE and other terrible food infections across the country. In the light of that, is not what the Government are now considering a completely retrograde step?
Earl Howe
My Lords, as I said in answer to the noble Lord, Lord Krebs, we fully recognise the important role that the FSA plays. I identify myself fully with his remarks about the reasons why the FSA was created. I speak as a former junior Minister in the department that he led in such a distinguished way, and I realise fully the force of what he said.
Lord Alderdice
My Lords, given that the Government, directly and indirectly, are one of the largest employers in the country, and therefore the provider, directly or indirectly, of lunch and other meals, is there anything they can do to ensure that the meals provided and the diet available to employees, direct or indirect, of the Government are improved in line with what the noble Lord asked?
Earl Howe
My Lords, there is, and I am grateful to my noble friend. He will know that the healthier food mark initiative is one thing that the Government can do to enable the public sector to lead by example, in schools, hospitals and care homes. The healthier food mark has been developed over the past two years as a benchmark to raise the level of nutrition and sustainability of food served in the public sector. It sets clear guidelines on healthier and more sustainable food and recognises achievement, so I hope that it will lead the way.
Baroness Coussins
Will the Minister explain why the Government are scrapping the extension of free school meals when there is such a clear link between nutrition and academic performance? Would it not be better and more cost-effective in the long run to make sure that as many children as possible from low-income families get at least one nutritious meal a day?
Baroness Thornton
They are being abolished. I declare an interest as a former unpaid trustee of the Fifteen training restaurants. Does the Minister think that it was wise of the Secretary of State to attack Jamie Oliver's school meals campaign, particularly given that he was incorrect in saying that the take-up of school meals had gone down when it had gone up? Will the Minister join the rest of the country in applauding Jamie Oliver's campaign to improve the quality and nutrition of school meals?
Earl Howe
My Lords, I do not know whether the noble Baroness saw my right honourable friend on television recently talking about this issue, but this is a good opportunity for me to put the record straight. He has not criticised Jamie Oliver’s work on school meals: on the contrary, he has applauded Mr Oliver and the many people who have worked very hard to improve the standard of school meals. The point that he made was that a very important initiative started by Jamie Oliver to make people more aware of what healthy eating is all about turned into a kind of prescriptive, top-down management process from Whitehall—and that is counterproductive.
Lord Rea
My Lords, how will the Government ensure that the principles of openness, independence and scientific accuracy in their pronouncements and advice, developed by the noble Lord, Lord Krebs, when he was the chair of the FSA, will be continued by whatever successor bodies are appointed to carry on the tasks of the FSA?
Earl Howe
My Lords, the noble Lord is assuming that the Food Standards Agency is going to disappear. I have seen those reports but do not recognise the stories at all. As I have told the noble Lord, Lord Krebs, and others, no decisions have been taken about the future of various functions within the Food Standards Agency, but we are clear that there has to be a role for a body setting standards objectively in the way that he has described.
Biometric Passports
(13 years, 10 months ago)
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The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, British passports have contained biometric information in the form of facial recognition technology since 2006. There are no plans to introduce a second biometric, such as fingerprints, into passports.
Lord Dubs
First, given that many countries have said that they expect visitors to have full biometric data in their passports, will that not make it much more difficult for British people to travel in the future, especially to the United States? Secondly, will the Minister confirm that forged passports have been involved in almost every known case of terrorism? Surely biometric passports are much harder to forge than the ones that we have at the moment.
Baroness Neville-Jones
My Lords, the noble Lord has raised various points. There are no reasons at all to suppose that the absence of a second biometric in British passports will in any way hinder the ability of British citizens to travel to whichever country they wish to enter. The United States takes the fingerprints of people entering the country but does not insist on fingerprints in passports. The US does not itself have, or intend to put, fingerprints into its passports.
This Government entirely agree with the noble Lord that passport security is extremely important. Although the move to introduce a second biometric will not continue, one part of the programme that definitely will continue is the strengthening of security surrounding the existing facial biometric.
Lord Marlesford
My Lords, does the Minister recognise that effective passports are a crucial weapon in protecting this country from both terrorism and crime? Will the Government ensure that the e-Borders system, which was introduced by the previous Government but is taking far too long to put into effect, happens? At the moment, there are huge gaps in passport control. On 27 April at about 10 o’clock in the morning, I was leaving the UK from terminal 3 but no one made the slightest attempt to look at my passport. When I asked why, I was told that they did not have enough staff. That is not good enough.
Baroness Neville-Jones
My Lords, I think the whole House will agree that secure passports are an extremely important part of combating terrorism. It is certainly the case that there are no exit controls at the moment but it is intended that they should come into operation as part of the e-Borders programme.
Lord Brett
My Lords, first, the noble Baroness reminded us that exit controls were removed. Can she remind us which party was in government when they were removed? Secondly, she said that we are going to strengthen the security of passports. Can she tell us how?
Baroness Neville-Jones
The existing facial biometric is a chip inside the passport, and that type of passport has been issued since 2006. It is possible, and we intend, to strengthen the security technology that surrounds that chip to decrease the ability of any forger in any way to clone it or counter its security.
Baroness Hamwee
My Lords, the Minister rightly acknowledges the importance of passports to our security. However, does she agree that it is most important to ensure that the existing system is well bedded in and working well before attempting to go on to a second stage? That is one reason why I, for one, support the Government’s intention not to move on to a second stage of biometric passports.
Baroness Neville-Jones
The Government entirely agree with my noble friend that passport security is extremely important, and we intend to ensure that security. However, our view is that the interests of the country are not well served by the Government starting to maintain a database of all passport holders, which amounts to 80 per cent of the population.
The Earl of Erroll
I welcome the fact that biometrics will not be kept on the national identity register—this is essential—but we ought to have biometrics in passports which match ICAO standards to make it easier to travel. We should not be frightened of that as long as they are not held centrally.
Baroness Neville-Jones
We agree that it is extraordinarily important that passports should have adequate security, and we believe that British passports with the single facial recognition biometric will achieve those standards. There are actually a number of countries other than the United Kingdom that do not have plans to introduce a second biometric.
Lord Brooke of Alverthorpe
Can the Minister say whether, over the next three years, the e-Border workforce will increase, stay the same or decrease? If it is to be decreased, what level of performance will be affected?
Baroness Neville-Jones
My Lords, I am unable to answer that question—I came here to talk about biometric passports—but I will write to the noble Lord.
Lord Dholakia
My Lords, is the Minister satisfied with the security of the country particularly in relation to people with dual nationality when one passport is used for entry into the country and another for exit?
Baroness Neville-Jones
That is indeed an issue, but we do not believe that maintaining the fingerprint database of the country will help the problem. However, we do have to combat passport fraud.
Lord Corbett of Castle Vale
Will the Minister be kind enough to answer the question from my noble friend on the Front Bench and remind us which Government removed the exit controls at borders?
Baroness Neville-Jones
The exit controls were removed quite some time ago, well before 9/11.
Maldives
(13 years, 10 months ago)
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Lord Foulkes of Cumnock
To ask Her Majesty’s Government what is their assessment of recent developments in the Maldives, including the arrest of parliamentarians; and what action they propose to take.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, the Maldives Cabinet was reappointed on 7 July following its resignation on 29 June. This represents a step towards the restoration of political stability. We continue to monitor closely developments and press the Government and Opposition to co-operate on the key issues of national interest.
Two Members of Parliament have been released but the Deputy Speaker of the Maldives remains under house arrest. We have stressed to the Government the importance of all being treated in accordance with Maldivian law.
Lord Foulkes of Cumnock
My Lords, does the Minister share my disappointment that President Nasheed seems to be reverting to the bad habits of his predecessor, which he criticised at the time, of arresting MPs—which has been declared illegal by the Supreme Court—and pressurising the Maldivian media and the courts? Will the United Kingdom Government use all their contacts—governmental, party and personal, as the Foreign Secretary is a good friend of President Nasheed—to ensure that all democratic freedoms are restored as quickly as possible?
Lord Howell of Guildford
We are pursuing full encouragement through our high commission in Colombo and other means to ensure that democratic development continues. We regard the restoration of the Cabinet as a step forward. We have a friendly, constructive and supportive interest in the sound stability of the Maldives and we will continue on that path.
Lord Naseby
Is my noble friend aware that the Maldives is no longer a protectorate of the United Kingdom? The country has gone from being a sultanate to a single party presidential system, to—with all our support—a democratic society. That being the situation, what role do we have at all to interfere in what is in fact the Maldivian exercise of democracy as they interpret it?
Lord Howell of Guildford
The word “interfere” is wrong. It is supportive because we and other democracies have a concern about the dangers of extremism taking hold in communities such as this throughout the world. This would lead to immensely damaging consequences for neighbours and ourselves, so we have a broad concern and the idea of friendship and support. In return, the Maldives has been a good supporter of our interests in the whole region. The Maldives has of course been very strong in its support for sensible and balanced concerns over climate change, including having a Cabinet meeting underwater, though I understand there are no plans for the British Government to do the same.
Baroness Tonge
My Lords, I appreciate the Minister’s concern for what is happening in the Maldives. However, can he turn his eye to what has happened in relation to Palestinian parliamentarians? The Government of Israel, having imprisoned 40 of them for four years, are now threatening to deport four of them for the crime of living in east Jerusalem.
Lord Howell of Guildford
Of course that is a matter of concern, but it is miles outside the scope of this Question.
Baroness Kinnock of Holyhead
My Lords, will the Minister confirm that the Government are working directly with regional governments, especially the Sri Lanka Government, who have been involved to some extent? Will he also confirm that the European Union, as a major donor to the Maldives, is actively working to assist in efforts to find a resolution to this crisis? Is this not essential, when so much is at stake, not least, as the Minister said, the threat to foreign investment and the need to deal with the massive fiscal deficits which the Maldives has?
Lord Howell of Guildford
The noble Baroness is correct that the Sri Lankan Minister has been there and played an important part, as has the US ambassador. I am not sure about EU representation at the moment, but it obviously has an interest. We are working with all our partners in a proper concern to see that this republic prospers, without in any way interfering, as was suggested in an earlier question.
Lord Bates
Does my noble friend agree that representations to the Government of the Maldives would be a lot easier to make if the diplomatic representation was present there rather than in Sri Lanka?
Lord Howell of Guildford
That is certainly true, but there have to be constraints on our resources. The high commission in Colombo is very active and a British official is now in the Maldives and about to attend a major climate conference in the coming week.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, after the Third Reading of the Academies Bill, my noble friend Lady Neville-Jones will repeat a Statement on the review of counterterrorism and security powers.
Academies Bill [HL]
(13 years, 10 months ago)
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15:42 - Division on Amendment 2 - Ayes: 193 / Noes: 171 - Amendment 2 agreed.
16:20 - Division on Amendment 3 - Ayes: 163 / Noes: 210 - Amendment 3 disagreed.
Lord Hunt of Kings Heath
( ) the parent governors of the school are elected by the parents of children at the school.”
Lord Hunt of Kings Heath
My Lords, in Committee and on Report, we had interesting discussions on the role of governors. Over the past 10 to 30 years, we have seen governing bodies take on major new responsibilities. The governors have given a great deal of time and I am sure that noble Lords will acknowledge that we should be grateful to them for their contribution and work.
Academy status will bring even more responsibilities to those governing bodies, and we on this side think it important that parent governors play a full role in their deliberation. In Committee and on Report, we debated the proportion of parent governors who ought to be on a governing body. However, in the course of the debate on Report, the noble Baroness, Lady Sharp of Guildford, asked for an assurance that however many parent governors there will be on a governing body, they should be elected by the parents of students at the school.
On Report, the Minister promised to look into this point and my amendment presents an opportunity for him to respond to it. I beg to move.
Baroness Walmsley
My Lords, my noble friend knows how very much we, too, believe in the importance of parent governors. The Minister was kind enough to send us the model funding agreement, but he will be aware that annexe A, which is the memorandum and articles of the academy trust, was not attached to it. The previous model, from the previous Administration, required at least one parent governor to be elected. Can the Minister confirm that that will be in the model when it is published? As the noble Lord, Lord Hunt, said, the Minister confirmed in response to a question from my noble friend Lady Sharp at col. 260 on 7 July that there will be elections for parent governors. I hope that he will be able to confirm that further today.
However, the Labour amendment is not helpful to new academies as it does not allow a parent to be appointed in the run-up to the opening of a new academy, as did the previous articles. That would be a very desirable time to have a parent governor, while the new school is taking shape, but the amendment would not allow for that. I do not know whether the noble Lord has taken that into account.
Baroness Howe of Idlicote
My Lords, it will not surprise your Lordships to know that I fully support the amendment, and would be grateful for the additional reassurance asked for by the noble Baroness, Lady Walmsley: that, at least in the old academies, as it were, there will be elections. Sadly, I remain unconvinced that we do not need to specify a number of parent governors to be represented on the board, which was the whole purpose of my previous amendments. I will not go into that again, because we are on Third Reading, but I would love to have more reassurance from the Minister.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, I am grateful for the points that have been raised and believe that I can provide that reassurance. First, I echo the point made by the noble Lord, Lord Hunt, about the importance of governors, which is accepted across all sides of the House. The point that lies behind the amendment has been raised in debate before, and I apologise if I have not made the situation sufficiently clear. The arrangements for the collection of parent governors are set out in the articles of association of the academy trust, which are agreed between the academy trust and the Secretary of State. Those articles are annexed to and form part of the funding agreement, which, as we know, is what controls the relationship between the Secretary of State and the academy, and always has done.
The model articles state that—I am sorry if this was not appended to the model funding agreement:
“the Parent Governor(s) shall be elected by parents of registered pupils at the Academy. A Parent Governor must be a parent of a pupil at the Academy at the time when he is elected”.
The articles therefore make clear, first, that the election of governors should be by parents of pupils attending the academy and, secondly, that parent governors must be drawn from among the parents of pupils at the academy. Those are the current arrangements for the election of parent governors in academies, and I believe that they are known to be effective.
The articles of association of an academy trust cannot be amended without the agreement of the Secretary of State, so the position as set out in the articles cannot be unilaterally changed by an academy. The previous Government argued and accepted that the funding agreement was the right place to deal with issues of that kind, and I agree with them. We do not need a requirement in the Bill of the sort set out in the amendment. That said, I take the point that the noble Lord, Lord Hunt, just intended to clarify the situation. I hope that that has done so and provides reassurance to all noble Lords who have raised the point. With that, I urge the noble Lord to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Lord for that; it very much reassures me and other noble Lords. The noble Baroness, Lady Walmsley, raised the question of new schools, which do not have an existing governing body. It would be difficult to see how you could include the parents of children who have not yet enrolled in the school, but perhaps that takes us to consultation issues that would probably be better dealt with in a later debate. In not pressing the amendment, I should say that the overall view of many noble Lords is that the stronger the parental involvement in academy governing bodies, the better.
Baroness Wilkins
“( ) In Schedule 1 to the School Finance (England) Regulations 2008, after paragraph 8 insert—
“8A Where a child is a registered pupil at an Academy, expenditure in respect of services for making provision for pupils with low incidence special educational needs or disabilities.”
( ) Where a local authority fails to secure satisfactory provision for pupils with low incidence special educational needs or disabilities, the Secretary of State may make alternative arrangements.”
Baroness Wilkins
My Lords, this amendment is also tabled in the name of the noble Baroness, Lady Howe of Idlicote. Both in Committee and on Report I have spoken about my concerns that a large increase in the number of academies will have the unintended consequence of dispersing funding for children with low incidence or complex special educational needs. As a result, vital support services for these children and their parents will become untenable, and there could be large numbers of deaf and blind children and others with multi-sensory impairments who do not get the support they need.
These concerns have received the support of all sides of the House and I am grateful to all noble Lords who have spoken. They are also shared by the National Sensory Impairment Partnership, the Special Educational Consortium and, particularly, the National Deaf Children’s Society, RNIB and Sense. I should like to thank the noble Lord, Lord Hill, and his officials for taking the time to meet with me yesterday afternoon, as he offered to do on Report, and it is therefore with regret that I must speak again to say that these concerns have still not been addressed. Sadly, while the Government are willing to recognise that the problem is real, they have shown no real urgency in coming up with a way forward. As the Special Educational Consortium points out in its briefing, the Government should recognise that there is a need to address the impact of the Academies Bill on individual children currently receiving specialist provision when a number of schools convert to academy status in September 2010.
I am alarmed that the Government should seek to pass this Bill knowing that potentially it could damage the educational prospects of some of the most vulnerable children in the country. The number of children may be small and the impact may not be immediate, but that is no excuse for failing to come up with a solution that will reassure parents and children that they will get the support they need. The National Sensory Impairment Partnership believes that the Government should set up a working group to consider solutions. The working group should be time-limited and have clear terms of reference to consider this issue and make urgent recommendations. The group must be led by Government and its recommendations must be communicated by the Government to all local authorities and schools across the country. I stress that the working group should also include representatives of the parents of children with sensory impairments, and I strongly urge the Government to accept the recommendation.
I hope that the Minister can give a positive reply before the Bill moves to the other place. But in the absence of that positive response, I have spoken to Members of the other place who have said that they will continue to raise this matter until we are certain that the educational prospects of disabled children will not be damaged by these proposals. I beg to move.
Baroness Howe of Idlicote
My Lords, I, too, support this amendment, as I have done on previous occasions. It is sad indeed that the Minister has not yet been able fully to satisfy our concerns. Disabled children and those with SEN often need specialist support to ensure that they achieve positive learning outcomes. These services are crucial for pupils with a wide range of disabilities and have a unique role to play in the education of children with low incident disabilities such as blindness, partial sight and hearing impairments.
Specialist support services are not focused solely on the delivery of the curriculum. They also provide much-needed training and skills to support independent living, and examples of some of those specialist services give a clear view. I cite the teaching of Braille and of British sign language, independent living training to enable independent personal care skills and home skills, mobility instruction and pre-employment support. Local authorities have traditionally provided specialist support services to all schools, using funds retained from school budgets to ensure adequate provision throughout their areas. There are strong concerns that, as academies move out of local authority control, so will their revenue, reducing the amount available overall to specialist support services and relying on academies to commission the services they require. I hope that while the Bill is still with us, we will have further assurances from the Minister. Otherwise, as the noble Baroness, Lady Wilkins, said, the issue will come up again in the other place.
Baroness Walmsley
There are indeed many complex issues to be further explored and I am sure that this will be done in another place. This morning I briefed my honourable friend Dan Rogerson MP, who will be handling the Bill on behalf of these Benches in another place, beginning on Monday.
One of the complex issues, for example, is that the amendment of the noble Baroness, Lady Wilkins—the spirit of which we certainly support—does not explain how the money retained centrally can transfer to the academies. Is it the expectation that a local authority will make the provision in an academy? Can the Minister confirm whether a local authority will have physical access to an academy to ensure that provision for low incidence SEN pupils is satisfactory? After all, it is being asked to pay directly for that provision.
Lord Knight of Weymouth
In the conversation that the noble Baroness had with her group in the other place, was it discussed whether any amendments will be allowed by the Government? Given the tight timetable of Second Reading and Committee stage on the Floor of the other place in the same week, it looks as though the Government want to get this Bill on the statute book before the Recess; therefore there will be no amendment because there would not be time for it to come back here.
Baroness Walmsley
I understand the point that the noble Lord, Lord Knight, is making, but I did not discuss that matter with my honourable friend. After all, the procedure at the other end is not a matter for a Member of this House; it is entirely for the other end.
On statementing, the general duty on local authorities to ensure that appropriate children are statemented is not within the scope of the SEN obligations. It is a discretionary matter for academies as to whether they put forward children for statementing. Therefore, on one view, children in academies might be disadvantaged; on the other hand, the likelihood is that academies might overpresent children for assessment for statements—but this, of course, has its own problems.
That the noble Baroness, Lady Wilkins, has felt it necessary to table this amendment again highlights the fact that many noble Lords are still not satisfied that the mechanism is fair and transparent for calculating how much extra funding goes to the academies and how much will remain with the local authorities to enable them properly to carry out their duties in relation to the children in maintained schools.
In Committee, the noble Lord, Lord Hill, accepted that these arrangements must be seen to be fair and undertook to,
“reflect on the underlying principle of making sure that there is transparency and trust in these arrangements”.—[Official Report, 23/6/10; col. 1333.]
The ready reckoner on the department website has a lot to answer for and the funding mechanisms are clearly a work in progress. We have suggested that someone needs to take an independent view that these arrangements are fair to children in and out of academies. However, because of the rules on Third Reading, we were not allowed to table amendments containing further ideas on how this might be done.
We are not convinced that the YPLA is up to the job and remain concerned about this matter. As I said earlier, we have briefed our colleagues in another place, who will now have the opportunity to explore these issues further. The Government have time to get this right and we on these Benches hope that they will do so.
Lord Willis of Knaresborough
I was not in the House when the Bill was presented, but I wish to raise an issue on this important amendment moved by the noble Baroness, Lady Wilkins. Since 1979 and the Warnock report, Governments of all persuasions have committed themselves to the principle of inclusive education, of allowing children with mild and complex special needs to be taught with their able peers within mainstream schools. Will the Minister say whether the Bill recognises that the small number of SEN children who appear in mainstream schools, and who will appear in some of the academies, may be refused entry simply because the school does not have access to adequate facilities to make provision for those children? They have specific needs that require funding. I hope that my noble friend will respond appropriately when he replies to the amendment.
Lord Low of Dalston
The case has been well made by the noble Baronesses, Lady Wilkins and Lady Howe, and others. I spoke on the issue on Report so I shall not labour the point further. Indeed, it is hardly necessary as I think that the Minister acknowledged, in responding on Report, as the noble Baroness, Lady Wilkins, said, that there is a problem. There is a case to answer but the Minister has not answered it. I very much hope that he can do a little better when he responds. Otherwise, as other noble Lords have said, the discussion will have to continue in another place. I very much hope that that will not be necessary and that the Minister can respond in a way that will sufficiently reassure the House this afternoon.
It is not only that there is a problem; it is an increasing problem. The dissipation of local authority budgets will increase with the number of academies. There are few private providers who can take over the provision of the specialist services that we are talking about. The only way realistically to provide them is for local authorities, which have a sufficient critical mass to sustain services for these low incidence groups, to do so. If the budget is removed from local authorities so that they cannot provide specialist services, there is the problem of knowing where academies will buy them in for their pupils from low incidence groups. The problem is serious and is likely to grow. I hope that the Minister can give us further reassurance when he replies.
The Earl of Listowel
My Lords, I am concerned that there is continuing anxiety about the protection for children’s special educational needs in the Bill. I am grateful to the Minister for the meetings he has had with Peers interested in this area and I will listen to his response with great care.
Concern about the continuance of educational psychologists has been raised by the noble Lord, Lord Adonis, and the noble Baroness, Lady Sharp, in previous stages of the Bill. In the past there has been a lot of concern that there were insufficient educational psychologists and that more was not done to ensure that their development was of the highest quality. I hope that the Minister can, either now or in writing later, provide some further reassurance that the changes in the Bill will not impact on the future supply of educational psychologists.
Baroness Sharp of Guildford
My Lords, this has been mentioned on a number of occasions and I want to intervene very briefly. In the letter that the Minister sent to the noble Baroness, Lady Wilkins, on 2 July 2010, he made quite clear the division of funding between what was going to be kept centrally and what was going to be distributed. Included in the funding to be kept centrally were educational psychology services; SEN administration, assessment and co-ordination, monitoring of SEN provision, and SEN transport. Included in funding to be distributed to the academies as a share of local authority funding was the funding retained from the schools’ budget for centrally provided SEN support services. This is the core of the issue we are discussing today. Services for deaf children, for blind children, and so forth, are part of these centrally provided support services. The problem is that if this share is taken away from the centre, there is not enough money left at the centre to provide these services adequately. The Minister has so far not been able to give us assurances that there will be adequate provision, and this is the core of the case that many of us are worried about. I look forward to hearing what the Minister says today.
Lord Lucas
My Lords, I agree that this is a problem which needs to be sorted out as we move to a world where there are many more academies and they play a greater role in the local provision of schooling. As my noble friend Lady Sharp says, there is this budget for SEN support services. I think private providers, in particular not-for-profits, will come into this area, given the chance. I do not see why the RNIB should not play a role in the provision of services for blind people. It would mean that good practice spread pretty rapidly round the country rather than being isolated in little pockets, so I can see a lot of advantages in moving away from pure local education authority provision. None the less, the mathematics of dealing with low incidence means that if you distribute the funding, all you can be certain of is that the funding is not where you want it when you need it, and we have to solve that problem.
Baroness Campbell of Surbiton
My Lords, I also support the amendment of the noble Baroness, Lady Wilkins. I am sorry I was unable to speak at Report. Unfortunately my health stopped me participating. However, this is an extremely important amendment. I met with two young disabled people with support needs last week who both told me that if the funding gets changed in the way they think is going to happen, then the academies cannot deal with their extremely heavy and expensive accessories so they will be compromised. We really have to think again on this one. I, too, am looking forward to hearing what the Minister has to say because thus far we do not feel secure in this Bill’s current form.
Baroness Grey-Thompson
My Lords, I also support the amendment of the noble Baroness, Lady Wilkins. As a child whose parents used the Warnock report to enable me to go into mainstream education, and had several discussions with the local education authority over a number of months to enable me to do that and not be shipped off to a special school, I have direct experience of budgets not being allocated. I went to school at a time when there was no statementing for disabled children. I had an education and went to school, but there was no access and there were no lifts. The local education authority employed six people to carry the wheelchair users up and down the stairs. So I had an education and went to a school but I was away from home and I felt quite isolated in the environment that I was in. My concern, if this is not properly addressed, is that children will, like me, receive an education but they will be isolated, away from their peer group, and they will not receive the rounded education that they all deserve.
Lord Hunt of Kings Heath
My Lords, there seem to be two issues here: one is the question of how to deal effectively with low-incidence SEN and the necessary funding arrangements; and the second is the issue of whether the other place is going to have any time at all to deal with this matter, as some noble Lords hope it will.
On the question of the principle, throughout this Bill the Minister has described the tension between the risks on the one hand and the advantages on the other of each academy having much more discretion over its own budget. We well understand that. As they start off, the governing bodies are bound to be conservative in their budget-making, because that is what new bodies and entities do. The risk is that they will not make an upfront investment in these services. The risk is that by the time they find they need to invest, these services will have gone out of business. That is the essential concern—it is not the principle. I have no problem with what the noble Lord has written in his letter about where governing bodies may look for future services. One can see a potential train crash in this area and so far we have not had the necessary reassurance to know that a mechanism is in place to ensure that it will not happen. I again ask the Minister why the role of the local authority is being overlooked in this area. I do not see why we should shy away from giving local authorities responsibility.
Yesterday we had a four-hour debate on working practices in your Lordships' House. A week ago we had a seven-hour debate on reform of your Lordships' House. The consensus view of the dozens of noble Lords who spoke in those debates was that this House is the effective revising Chamber and this House is the place that effectively scrutinises legislation. Yet we are told that noble Lords who share that concern are prepared to leave it to the other place to deal with this matter. My understanding is that this Bill will be finished in the other place in two weeks’ time because a rushed programme will enable it to get through. There is virtually no possibility that the other place will be able to consider this matter in detail. That is why the matter should be decided in your Lordships' House.
Lord Hill of Oareford
My Lords, I am grateful for the points that have been raised in this debate. We have, rightly, spent a lot of time on this Bill talking about various sensitive issues to do with our most vulnerable children. As I said in Committee and on Report, I accept the practical concerns raised by the noble Baroness, Lady Wilkins, and others. When we met yesterday, we went through some of those. I hope that some of the answers I can give this afternoon may take us a little further. However, I certainly recognise the concerns that she has raised.
The noble Baroness, Lady Wilkins, and others have been kind enough to accept that, with the parameters within which I am operating, I have sought in general to approach SEN issues throughout this Bill with an open mind and, so much as I have been able, taken concerns on board. I hope that, in some cases, I have gone further than perhaps noble Lords thought was likely to be the case when this process started.
On the specific point of low-incidence SEN, I can say to the noble Baroness that, as part of looking at funding for academies from 2011 onwards, we will work closely with local authorities. I accept the point made by the noble Lord, Lord Hunt, about the importance of local authorities and other parties in this area. I can confirm that we will look specifically at the funding of low-incidence SEN. This work will start during the autumn. I have today instructed officials to ensure that the Special Educational Consortium is kept abreast of developments and is able to make its views known. It is extremely important that it has that opportunity and we shall reflect on the points that it makes to us. We are committed to ensuring that children with sensory impairments in both the maintained and academies sectors receive the services that they require.
We have also established an advisory group to help us work through the issues particular to SEN and special schools in relation to the establishment of academies. We want to use the practical expertise in that sector and the group will include heads and governors from special schools and mainstream schools with specialist units, as well as local authority representation at officer and political level. As I said on Report, and as I underlined to the noble Baroness, Lady Wilkins, and to the noble Baroness, Lady Howe, yesterday when we met, I am very happy to put on the record our undertaking to monitor the impact of increasing numbers of academies on local authority sensory impairment services. We will continue to work with local authorities to ensure that adjustments to their funding in respect of academies properly reflect their continuing responsibilities. Our officials will also work with organisations such as the National Sensory Impairment Partnership on this.
Listening to the debate, I am very conscious that I am not expert on SEN, and I am not the Minister responsible. However, as part of the advisory groups and the work we will be taking forward, I would be very happy to enable a proper exchange with the relevant Minister in the department so that we can work through these issues, using the experience and expertise of noble Lords, to make sure we come up with practical solutions that meet the concerns that noble Lords have raised. So I am alive to the concerns. I hope that the noble Baroness will feel that that provides some slight further reassurance from yesterday. In the light of that I ask her kindly to withdraw her amendment.
Baroness Wilkins
My Lords, I am most grateful to all Members of the House who have spoken in support of this amendment and to the Minister for the reassurances that he has tried to give. Unfortunately, it does not meet the needs of those children who are going to be at school in September. Given the strength of feeling in the House, I would like to test the opinion of the House.
Lord Whitty
“(1A) Before making an application for an Academy order, the governing body shall consult relevant parties on whether to make such an application.
(1B) The Secretary of State shall issue guidance as to how governing bodies should conduct such a consultation with parents, pupils, teaching and non-teaching staff and their representatives, neighbouring schools and the local authority and such other parties as he may think appropriate; such guidance would also specify the information that should be made available to consultees in relation to the proposed arrangements for Academy status.”
Lord Whitty
My Lords, I think we have just seen the need for the Government to listen. Amendment 3 is about consultation on this whole process. It does not seek to reopen the whole issue of the strategy behind this Bill—noble Lords will know there are different opinions in this House. However, it does bring home the need for consultation. This group of amendments relates to the conversion of maintained schools into academies and the next group relates to consultation on additional schools, as the Government are now calling free schools.
We all recognise that the transformation of a maintained school into an academy is a momentous decision for the school—for the pupils, for the parents, for neighbouring schools and for the whole community. Yet originally we had a Bill that had no provision whatsoever for consultation with any of them. I acknowledge that the Minister has listened to some degree and that he came forward on Report with an amendment, which is now Clause 5, which deals with consultation.
I have to return to this as Clause 5 is deeply flawed. It is seriously flawed in three places and has a minor flaw in a fourth. First, the clause places all responsibility on the school governing body and none on the Secretary of State. Secondly, it makes no attempt to define those who must be subject to the consultation and refers simply to those whom “they think appropriate”, as subsection (1) states. Incidentally, the minor flaw is that there must be some slipping up in educational standards in either the Department for Education or the parliamentary counsel as in my young day “governing body” was actually singular and would not be referred to as “they”. No doubt that can be sorted out in another place.
The most important flaw, however, is that Clause 5(3) would allow consultation to be delayed until after the academy order has been granted. Subsection (3) says:
“The consultation may take place before or after an Academy order, or an application for an application for an Academy order, has been made in respect of the school”.
In other words, the governing body could have met and decided to have put in an application without consulting parents, staff or anybody else. The Secretary of State or his officials could have decided to make an order on the basis of that application without having consulted anybody. The terms of that order could have been negotiated, the financial arrangements could have been set up, third parties could have been lined up, all without consultation, and the order could have been issued without consultation. Only at the point just prior to implementation would consultation be required. That seems to me a common-sense reading of the option “or after” in subsection (3).
The Minister was quite helpful on Report. He explained that in practice the governing body would consult and the Government would encourage it to consult. They would issue guidance on consultation, and that guidance would be on the department’s website. I was very glad to hear that and I am sure my colleagues elsewhere were, but why we do not put it in the Bill? That would greatly reassure all the bodies concerned and set a process for every local conversion. Regrettably, I think we know why it is not in the Bill; my noble friends Lord Knight and Lord Hunt referred to the reason earlier. It may have been altered slightly by the last vote, but it is not in the Bill because the business managers are anxious to get this Bill through before the end of July, and any process that was built into statutory requirements would slow down the Government’s aim to get this through so that they could meet their deadline of bringing some academies into being in September.
I have to say to the Minister and his colleagues that it may sometimes be a bit boring and may be a problem for Ministers, but they have to slow down. Frequently, in 13 years of government, those on our side of the House found that they had to slow down and that often it was this House that required us to do that—usually at the behest of Liberal Democrats insisting that they would accept the principle as long as we engaged in widespread consultation. No doubt similar representations are being made these days rather more privately. However, if Ministers really want conversion to academies to happen, and to happen smoothly without too much local controversy, they would be wise to accept my amendments.
The amendments provide that governing bodies should engage in consultation before they apply for academy status; that the Secretary of State would issue guidance to them on whom to consult, how and with what information; and that before agreeing to an academy order, he would have to be satisfied that such consultation had indeed taken place. That is a reduction from what I was looking for on Report and puts a lot of power into the hands of the Secretary of State and the guidance that he would issue. However, separately, the amendments still require the Secretary of State to consult the local authority. That seems to be crucial, as we recognised in the previous debate. The local authority is crucial in these decisions, because the relationship between it and the school will change dramatically if the school converts to an academy. The local authority is responsible for ensuring educational provision in the whole community, not least on special needs, as we have just heard, and because the local authority has responsibility for sustaining educational provision beyond this generation of pupils and parents.
According to the speech the other day by the noble Lord’s colleague, the Secretary of State, to the Local Government Association, he wants local authorities to continue to play a strong and strategic role in the schools system. If that is the case, surely at the very least there should be a provision in the Bill that before a school converts to an academy, the Secretary of State should have consulted the local authority in question.
These amendments would require these issues to be put in the Bill, let the Secretary of State issue the appropriate guidance on the consultation, and let the Bill recognise the crucial role of the local authority. These would not derail the process unless it was being rushed. I advise the Minister to accept the amendments or indicate that in another place he will ensure something similar is put in place. I beg to move.
Baroness Perry of Southwark
My Lords, I am surprised and sad that the amendment has come back at Third Reading in this form. Like many other noble Lords, I have engaged in a lot of discussions with a lot of schools that have for some weeks been engaged in the process of moving to academy status. The normal procedure that they have described almost universally—with slight variations, although they have all consulted—is that the head of the school first talks the proposal through with the staff to get the feeling from inside the school. What head is going to go ahead with a change to the school’s status such as this without taking her or his staff with them? That scenario is unthinkable. Then there is a lot of discussion between the governing body and the head. After that, the governing body goes out to talk to parents.
Almost all these schools have had meetings with parents to explain what academy status would mean and why they want to move ahead. The church schools have consulted the diocesan board and the church; there have been long discussions and many of the diocesan boards have had extensive consultations with their schools and, in many cases, with each other. There is a huge amount of consultation and it is unthinkable—absolutely unthinkable—that any school, any head teacher, any group of staff or any governing body would want to press ahead in some sort of secretive way without making sure that they were taking the staff, the parents and the local community with them. That is the way schools operate.
Once again, there is an arrogance in this House that we are the only people with good intentions. Just 20 minutes ago we were talking about those excellent governors and our faith in them. Why can we not trust the people who run our schools and education services to behave in a sensible and honourable way? That is how they have always behaved. The schools that I have talked to—I am sure many noble Lords have had the same kinds of conversation—have behaved in that way. To be prescriptive, to write down as a rule that we are consulting only because it is the law, would be alien to the way in which good schools operate—and only good schools will come this way.
I am equally certain that, when we move past the stage of the first Ofsted excellent schools wanting to become academies and move to some schools that may be more questionable, the Secretary of State and the civil servants in the department will closely question them as to the nature of the consultation they have had as part of due diligence. The amendment is unnecessary, arrogant and plain rude to the people in the education service that we all support. I very much hope that the noble Lord will withdraw it.
Baroness Walmsley
My Lords, we on these Benches are second to no one in our enthusiasm for proposing the most widespread appropriate consultation on a matter such as this which is so important to every school. That is why we were so pleased that the Minister brought forward the amendment on Report to put into the Bill the consultation that had been lacking in the original Bill. However, the noble Baroness, Lady Morgan of Drefelin, and her predecessors, has convinced us on numerous occasions of the dangers of lists and of being prescriptive as to who you should talk to about this, that and the other.
Baroness Morgan of Drefelin
My Lords, does the noble Lady agree that we are still convincing those on the other side of the Chamber of the dangers of lists? The right honourable Secretary of State for Education is experiencing a very difficult time with lists at the moment. We stand firm on that position.
Baroness Walmsley
The noble Baroness is very quick on her feet this afternoon but that is not the sort of list we are talking about. The list in Amendment 3 is dangerous because it probably leaves somebody out. In an individual school’s case, there may well be somebody who is appropriate to consult but who is not in the list. There are times when you have to trust schools. You have to trust what was in the Government’s amendment on Report, which is now in the Bill, that appropriate consultation must take place. Matters such as this will have widespread publicity within a local area, and any organisation that believes it is an appropriate group within the terms of the previous amendment from the noble Lord, Lord Hill, but has not been consulted will certainly jump up and down and shout about the matter, making sure that the governors of the school know its view on whether the school should go ahead.
I remind the noble Lord, Lord Whitty, that a school does not become an academy until the point of conversion. Although I personally strongly encourage schools to consult at the earliest appropriate moment, as I have already encouraged them to do in this Chamber, it must be done according to what we have in the Bill now, before conversion. That is vital.
Baroness Morgan of Drefelin
My Lords, I have learnt so much about conversion in the process of this Bill. I have learnt about the noble Baroness’s conversion to the benefits of the academy model promoted by those on these Benches and now by the party opposite, too.
We come back to what the Minister has talked about through our deliberations: the need to get the balance right between central prescription and local innovation, and the need to trust schools. Nobody in their right mind would think it a good idea for anyone in central government to be rude to schools or to put themselves in a position where they have to apologise individually to them. That is something that all of us around the Chamber take seriously.
Listening to my noble friend Lord Whitty proposing his amendment, I thought that what he said was very reasonable. At the heart of what he is asserting is the need for good guidance for schools. We are talking about potentially large numbers of sometimes quite small schools having to go through a process, and about giving them the right kind of support and guidance. I looked at the guidance that is available on the Department for Education's website. Consultation does not feature very strongly in that; it does not even get its own little blue box in the summary of the conversion process.
On Report, the Minister said that the Government were,
“amending our advice to converting schools on the department's website to include guidance on good consultation practice. We will discuss with an applying school as part of the conversion process what arrangements it has made for consultation”.—[Official Report, 7/7/10; col. 309.]
I would be happy if the Minister would explain whether the advice on the website has been updated since Report. We are in a very fast-moving process and if the Government are committed to providing full and proper advice and guidance to schools on consultation, that needs to happen quickly. The advice that schools get from the website about the communication that they should have with the local authority suggests that they should simply ask it to prepare for them details for the transfer of land—deeds and such. That is the context in which a conversation with the local authority is suggested.
There are good, simple suggestions on the website about how schools might consult parents, such as sending a letter to them explaining the proposals and perhaps meeting them. However, I am concerned that the only communication with the local authority should be to ask the local authority,
“to gather land ownership and land registration documentation and information”.
Surely there is a lot more that the school would want to talk to its local authority about. Will the Minister update that guidance, and soon?
Lord Hill of Oareford
My Lords, we return again to the issue of consultation—and we will have another go in a moment with the next group of amendments. We have had detailed debate on the subject both in Committee and on Report. These amendments cover much of the ground that we have already debated and on which I have brought forward amendments, so I hope that the House will forgive me if I am relatively brief in rehearsing familiar arguments.
As my noble friend Lady Perry argued, it is the Government's view that the individuals who lead schools—the governors and the head—are best placed to make decisions. They know the local area, the local circumstances of the school and how it relates to other schools in the area. We trust them to determine how to consult and we do not intend to provide an inflexible checklist, which would not make the consultation any more meaningful. The trusting of professionals to do their job is a key principle that the Government are keen to pursue on many fronts, and it underpins this Bill.
Amendment 3, as the noble Lord, Lord Whitty, set out, would also require the governing body to consult before applying for an academy order. We had this discussion last week on Report. It is not until the academy arrangement is finally entered into that the conversion process is legally agreed. That is why it is appropriate to leave it to governing bodies to decide when they should consult, so long as they do it before they enter into academy arrangements. However, I accept that they will frequently want to do it—as my noble friend Lady Walmsley said—early in the process rather than later.
The noble Baroness, Lady Morgan of Drefelin, rightly said that we are amending our advice on the website. I do not believe that it has yet been amended. I do not think that what she read out has been updated and we need to do that urgently. We will obviously discuss with an applying school the arrangements that it has made for consultation and we do not believe that we need to be more prescriptive than that.
Amendment 4 seeks to require the Secretary of State to consult the local authority over any academy proposals. Schools or proposers for free schools will, and have to, consult whomever they consider appropriate, and in many cases that will include the local authority. However, we do not believe that the Secretary of State needs to be involved in any consultations in addition to the school or the proposer, and we do not think it necessary to give local authorities a role which could—although perhaps only in some areas of the country—undermine the purpose of the Government’s policy; as we know, that has been the case in the past.
Given that we have had these debates and rehearsed these arguments, and are to return to them in the next group of amendments on consultation more generally, I hope that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.
Lord Whitty
My Lords, I am disappointed by that. I have been reasonable: I have listened to what the Minister has said on previous occasions and have not specified a definitive list. Indeed, the amendment leaves the final definition of the list to the Secretary of State, so I trust the Secretary of State. It would be odd if any consultation excluded the parents, pupils and staff, and I think that the House, and indeed society as a whole, need some reassurance on that.
I, too, had a quick look at the website after the previous stage of the Bill. It gave very little guidance on consultation and virtually none on substantive consultation with the local authority. I am afraid that the relationship with the local authority seems to be the most disastrous aspect of this policy, because sometimes the Government explain their commitment to academies as taking as many schools as possible out of the so-called control of local authorities. However, even if we accept that objective, the relationship with local authorities will be crucial in the future, as they will have to take on board the consequences for other schools in the area of a single school or a significant number of schools becoming academies within the area of their jurisdiction.
I have moved quite considerably towards the Minister in not being prescriptive. I have no doubt that he thinks I could move further, but I also think that he could move further. At the very minimum, he should probably look at Clause 5(3) to see whether the phrase “or after” is unnecessary, as it raises a significant number of fears. If the whole process is gone through with consultation in the terms described by the noble Baroness, Lady Perry—and I am sure that that is true in relation to schools that are already enthusiastic for academy status—future cases will undoubtedly be more controversial with the governing body, the staff, the locality and the local authority. Therefore, enthusiasm for consultation may be somewhat diminished in future and the need to provide guidelines as to how the consultation should take place will be more important.
Even if we assume that in most cases the consultation can take place very early in the process, Clause 5(3) allows it to take place at the very end. That is not consultation; it is presenting an option with all the terms of the agreement and the financing tied up and with a commitment on the curriculum and the governance also tied up. It is then presented to the parents and the public effectively as a fait accompli. It is true that that consultation could still reveal a no response but there is no option for the public, the parents, the pupils, the other schools and the local authority to influence or negotiate a change in the provisions. Therefore, if the Minister is not even prepared to consider that the other place might delete “or after”—and I think that what he said today indicated that he was not—we had better have it on the record that the coalition is now against consultation at the local level.
Baroness Walmsley
I would love to hear what was said a few minutes ago. We are very much in favour of consultation on this side of the House.
Lord Whitty
My Lords, if you still allow consultation to take place as “or after” implies in subsection (3), you are not wholeheartedly committed to consultation. I respect everybody’s views, I respect the experience that the noble Baronesses, Lady Perry and Lady Walmsley, have referred to, but it still allows for a sham consultation to take place. I would like to close that door and therefore would like to test the opinion of the House.
Lord Whitty
“(3) In the case of a new (or free) school being granted Academy status, the Secretary of State must—
(a) ensure that a consultation has taken place with appropriate parties;(b) consult the local authority.”
Lord Whitty
My Lords, in view of the Government’s attitude to my previous amendment and of the vote, I shall not move this amendment in favour of Amendment 8.
Lord Hill of Oareford
“Impact: additional schools
(1) This section applies when the Secretary of State is deciding whether to enter into Academy arrangements in relation to an additional school.
(2) The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.
(3) A school is an “additional school” for the purposes of this section if—
(a) it does not replace a maintained school that has been or is to be discontinued, and(b) it is not a school in respect of which an Academy order has effect.(4) For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school.”
Lord Hill of Oareford
My Lords, it gives me great pleasure to move Amendment 6 and speak to Amendment 7. These two amendments follow our discussion on Report and are designed to make clear the situation regarding new free schools, which are defined as additional schools in the amendments. My noble friend Lord Phillips tabled an amendment on Report designed to require the Secretary of State to take into account the likely impact of a new free school on neighbouring schools, and I accepted the principle of it then.
Amendment 6 will ensure that, when the Secretary of State is considering whether to approve proposals for additional academies, such as a new free school, he will be required to take into account the impact of those proposals on the other schools and colleges in the local area. As I have explained before, the Secretary of State has a duty to act reasonably in all matters, which includes considering all the relevant implications of the proposals. The amendment puts that requirement into the Bill, and will ensure that no free school proposal will be approved without due consideration of its wider implications.
When assessing the impact, the Secretary of State will consider a range of information and issues. These might include things such as performance data relating to local schools, admissions data, surplus places data and any sensible school reorganisation plans in the area. This will be done with a view to gauging whether introducing additional competition into the local area will be helpful or otherwise. Subsection (4) makes it clear that where the new school is not like for like—for example, it is the result of an amalgamation—it would also be counted as an additional school and thus caught by the requirement to evaluate the impact.
I have also tabled Amendment 7. If accepted, this will require any promoter of an academy which does not replace the maintained school—that is, a new free school—to consult those it sees fit on the issue of its proposal. As I have said, noble Lords raised concerns on Report that the requirement to consult on academy proposals, on which I brought forward an amendment at that stage, was aimed at converting schools and therefore did not capture proposals for free schools. The point was made not only by my noble friend Lord Phillips but also by the noble Baroness, Lady Royall. Even though I think that a free school proposal, which will need to demonstrate parental demand and support, will by definition involve and require consultation, I accept the point of principle and believe that I have addressed it with this amendment. It replicates exactly the requirement on a governing body under new Clause 5 in that the person who is to enter into the academy arrangements with the Secretary of State must both take a view on those with whom it is appropriate to consult and consult with them on the question of whether to enter into the arrangements.
Taken together, Amendments 6 and 7 reflect the concerns that have been raised on all sides. I believe that they provide further reassurance on consultation to those noble Lords who flagged these issues on Report. I beg to move.
Lord Phillips of Sudbury
My Lords, I am most grateful to my noble friend for listening to the arguments advanced at the previous stage, with which I was involved, and for bringing forward the new provisions that meet satisfactorily the matters concerned. There is just one point on which I would be obliged for his assurance. Some noble Lords will find that the wording of subsection (1) of the proposed new clause, although it mirrors the new consultation clause, still appears somewhat subjective, requiring the people promoting the new or additional school to,
“consult such persons as the person thinks appropriate”.
It would be helpful to have in Hansard an assurance from the Minister that, in considering the impact of a new or additional school on other schools under the new impact clause, the Secretary of State will have to take a view as to whether the consultation undertaken by the promoters of the new school is adequate and sufficient in order for him or her to come to a view on whether the impact is on the right side of the line.
As I say, I hope that the Minister will be able to assure the House that, if the Secretary of State considers that the consultation undertaken by the promoters is simply not adequate to establish whether the impact is on the right or wrong side of the line, he or she will be able to undertake further consultation as will lead to the facts that he or she must have in order to reach a proper conclusion on impact.
Lord Knight of Weymouth
I pay tribute to the Minister for ceding the principle around the impact of additional schools. He has listened to the House and we are grateful to him for that. Like the noble Lord, Lord Phillips, I pay particular attention to Amendment 7 and the phrase,
“a person must consult such persons as the person thinks appropriate”.
Given the excellence of the people drafting the clauses, I am sure that that is perfectly sound technically. However, it is wide in its effect. I would argue that in the case of additional schools, in particular, we have to include in that consultation the local authority and possibly the schools forum. I ask the Minister to commit to amending the Bill in the other place, particularly as he already may need to do so. If he does not like the amendment agreed earlier, that may open up the possibility that he will agree to an amendment on this.
My concern is around the funding of these additional schools and it may help your Lordships if I briefly explain how the existing funding works. The bulk of schools funding comes through the dedicated schools grant—except for academies, which are funded directly by the Secretary of State. The dedicated schools grant is then allocated by local authorities as agreed by the schools forum, which is made up of schools, pre-schools, further education colleges and other 14 to 19 providers. It is notable that the Minister does not include pre-schools in Amendment 6 and, given that under his policy academies can now include primary schools, which may be providers of pre-school education, there may be an issue about pre-schools not being consulted. However, I shall not dwell on that.
When academy arrangements are entered into, the necessary funding for the academy is taken away from the local authority’s dedicated schools grant and allocated direct to the academy. Additional schools need revenue funding, and that will come from that local authority allocation. That is why it is essential that the local authority is consulted—unless, of course, the Minister has a pot of money for revenue funding. I know that capital funding is allocated and, like other noble Lords, I have been on the web today trying to understand these issues. On the Department for Education’s website I found a press release from the Secretary of State dated 18 June in which he refers to capital funding by reallocating £50 million from the enhancing technology grant to create a standards and diversity fund. However, there is no mention of the revenue funding needed for these new schools.
The frequently-asked-questions section on free schools contains six lines outlining how much funding I will get to run my free school. That remains very vague. It states that,
“we will work with the early groups of Free Schools to develop a sustainable and fair funding model and publish further detail as it becomes available”.
Perhaps the Minister is ready to publish that further detail to help inform the debate today.
Determining the revenue of an additional school requires a prediction of pupil numbers. This then determines both how much the new school will get and how much the other schools will lose because we are working within a constrained pot—unless, of course, the Minister has his pot of gold. Can the Minister tell the House where the revenue will come from in the first few years as the additional schools are established? A modest-sized, virtually unviable, secondary school would have 400 pupils at £4,000 per head per year, which is probably lower than the current average per pupil funding. According to my calculator, that is £1.6 million of revenue funding per school in its first year of operation. We need to know where that money is going to come from.
Who agrees the predicted number of pupils for the additional school? That will have an impact on the surrounding schools because they will then know how many they are likely to lose. What form of appeal will there then be for those schools, the local authority and the schools forum, which advises on the detailed allocation to each school? What form of appeal will they have on the decision on the predicted number of pupils? Has the Minister taken legal advice on whether the current process that we are being asked to agree today is challengeable if there is no consultation with local authorities or schools forums?
Lord Willis of Knaresborough
I apologise to the noble Lord but I am trying to get the parlance correct. It would be helpful if he would explain the funding arrangement under the previous Government when a new academy came into a local authority area. How was the money clawed back to balance the places and resources?
Lord Knight of Weymouth
The noble Lord will know that academies have been used to replace failing schools, so there is a fundamental difference in the policy reflected in this Bill. We are being asked to agree arrangements for academies to convert from outstanding schools and, in this case, we are discussing additional schools. There are one or two additional schools for which my noble friend sitting next to me, or I as the Minister responsible, might have been able to find the additional money. That is why I keep asking the Minister whether he has some revenue funding that he has not told us about and whether he has agreement from the Treasury. In these straitened times that is unlikely, so it is most likely that it will come from other schools in the local authority area.
Is the Minister aware that following the unfortunate Building Schools for the Future announcement, there is a considerable appetite among local authorities to take legal action against his department when things are rushed out without working through the details? That is what is happening because of the unexplained desire to get the Bill on the statute book this month.
I know that I have asked the Minister a lot of questions, and he may want to write to me with some of the answers. Since I raised it in this Chamber last week, I would be most grateful if he could explain in his summing up how revenue funding will work for these additional schools, and why the Bill does not provide for consultation with local authorities and school forums.
Baroness Walmsley
My Lords, I, too, welcome Amendments 6 and 7, and I am glad that the noble Lord, Lord Hill, has responded to the persuasion and effective blandishments of my noble friend Lord Phillips of Sudbury on this matter.
I have a question on proposed new subsection (4) in Amendment 6, which states:
“For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school”.
Will the Minister explain that, because it is not covered by the letter which he wrote about the government amendments of 9 July 2010? I think it means that it excludes from consideration as an additional school an academy that decides to establish, for example, a sixth form that did not exist before. I would not want this part of the Minister’s amendment to work as a loophole that would allow schools covering substantially the same age range, but with a little tweak at one end or the other, to be established without the Secretary of State having the very serious job of considering the impact on other good schools in the area.
Lord Bates
Briefly, I support my noble friend and place on record a slight disagreement on the amendment from this perspective: I am rather pleased that the wording is retained—that an additional school should consult with such persons as appropriate. It is fair to say that there is potentially a different view. I believe that it is a philosophical point about how we do government. It is about whether we want to go back to the day, which has been tried before, when we have Bills that run to 250 pages. They are so prescriptive about what everyone has to do, and people respond to that simply by taking a tick-box approach to everything—“Have I spoken to them? Have I spoken to them?”. They never bother to contemplate and absorb the issues. There is an attempt by the new coalition Government to do things differently. They are saying, “We are prepared to trust people and introduce legislation which is not prescriptive but is simply enabling people. If your school has been judged outstanding by Ofsted, clearly you are doing a good job and we trust you to do the right thing in the right way. If you are a new school and you have support for that, you have greater authority and we want to trust you”. That message needs to come across so I urge the Minister not to concede any further ground on this amendment. I think that it is fair enough as it stands.
Baroness Walmsley
I do not want the noble Lord to get away with the idea that I do not support these amendments. I simply asked the Minister a question about subsection (4) of the proposed new clause.
Lord Bates
Let me correct that for the record in Hansard. There was no suggestion of that at all.
Lord Adonis
My Lords, I congratulate the noble Lord, Lord Hill, on his Amendments 6 and 7. He has gone as far as he reasonably should to meet the concerns about consultation in respect of new schools. He will obviously explain his response to the particular issues to do with funding raised by my noble friend Lord Knight. I do not regard the concerns raised on other issues to be matters of substance. The noble Baroness, Lady Walmsley, was concerned that the definition of what constituted a replacement school in subsection (4) of the proposed new clause might mean that a school which just had a somewhat larger age range did not constitute a replacement school, but my reading of the amendment is that, if that were the case, it would then be a new school and so would still be subject to the consultation arrangements which are encompassed in the other amendments tabled by the noble Lord, Lord Hill. Either way, whether it constitutes a replacement school or whether it constitutes, in the wording of Amendment 6, “an additional school”, it is captured by requirements for consultation that are equivalent.
Regarding the concern raised by the noble Lord, Lord Phillips of Sudbury, about the subjective nature of the consultation, I do not read the amendment as being entirely subjective. He is the lawyer and I am not, but my reading of subsection (2) of the proposed new clause is that because the Secretary of State must take into account the likely impact of establishing the additional school on maintained schools, academies and institutions within the further education sector, he will have to be satisfied that there has been a consultation in respect of them. It would not be possible for the Secretary of State to take into account the impact on those institutions unless they had been consulted. My reading of subsection (2) of the new clause proposed by the Government’s Amendment 6 is that it substantially limits the subjective scope, because the Secretary of State would need to be satisfied that they had been consulted in order to be able to evaluate the impact.
Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way; he may have finished. It was precisely to elicit a clear statement along those lines that I raised that query. Being a lawyer, I think the wording as it stands leaves things a little open, hence the clarity I seek, which I hope will be given.
Lord Adonis
I had almost finished. I just wish to make one concluding point. I support the policy of new school providers getting a fair opportunity to establish new schools where there is a need for additional schools in an area, either to meet the requirement for additional school places or—to be quite frank—to meet the requirement for high-quality places where they are not being provided by existing schools. If there is to be that opportunity, it is very important that we do not tie up school promoters in red tape that will either dissuade them from coming forward with proposals in the first place or hamper them unduly when it comes to conducting their consultations. Amendment 8 states that,
“the Secretary of State must satisfy himself that relevant interested parties have been consulted”.
As soon as you put phrases like that in legislation, you guarantee a succession of legal cases as people challenge what constitute “relevant interested parties”. That would not meet the purpose, which is the provision of new schools where they are needed or will raise the quality of education in an area, so I do not believe it is desirable.
Baroness Morgan of Drefelin
My Lords, it is my turn to pop up from behind the Dispatch Box. I was very interested to hear the noble Lord, Lord Bates, talk about the philosophical issues in Clause 4; I was equally interested to see the little exchanges going on across his Benches. Of course, we have very important business before us at this Third Reading.
My noble friend Lord Adonis and the noble Lord, Lord Phillips, put their finger on the issue that my amendment is about; that is, the Secretary of State being satisfied that appropriate consultation has been undertaken before an academy is established where there was no school previously. I think that we are all keen to hear what the Minister has to say, as my amendment is an amendment to his government amendment. I know that my noble friend Lady Royall will be pleased that he has listened to her remarks and taken on board concerns voiced around the Chamber about appropriate consultation on the establishment of free schools. There are real concerns and questions, for example, about how the admissions code might work in some very small schools, how schools set up by a group of parents might cater for other parents and how the broad and balanced curriculum might work in them. It is therefore important that questions around consultation are taken seriously. Like my noble friend, I believe it is important that, where there is a need for a new school, we make sure that parents have the opportunity to establish a school with the support of the education community around them and that if they consult appropriately they will not be accused at some later stage of having consulted only a few of their mates and people whom they know are fellow travellers and will simply agree with them.
In the interests of ensuring that taxpayers’ resources are invested in good new schools and that work is done to establish sustainable schools that fill a need, the consultation on the establishment of new free schools should be no less important to the Secretary of State than consultation on the conversion of a maintained school to an academy. I look forward to hearing the Minister set that out on the record. I shall think about his response when it comes to considering whether to press my amendment to his amendment.
Lord Whitty
My Lords, I support Amendment 8 as an amendment to Amendment 7, because it would require the Government in relation to free schools to engage in at least the same degree of consultation as they are required to engage in on conversion.
In a sense, I congratulate the Government on redesignating free schools as “additional schools” because that indicates what they really are. It may not be what the Minister’s PR department would have advised him to call them, but “additional schools” raises the issue of additional resources. At some point in this debate, probably now in another place, he and his colleagues will have to answer the question posed by my noble friend Lord Knight on how the additional schools will be financed.
Lord Hill of Oareford
I am grateful for the comments that have come from all sides of the House about consultation. I am grateful, too, for it being recognised that I have listened to concerns and that the Government have moved a considerable way in reflecting them. As I said previously, that has been in response not only to concerns raised with me by my noble friends Lord Phillips, Lady Williams and Lady Walmsley but also to the point made by the noble Baroness, Lady Royall, last week about wanting to be sure that the requirements for consultation on new academies—free schools—were the same as those for converting schools, which was the focus of our previous amendment. I shall try to provide as much reassurance on that as I can to the noble Baroness, Lady Morgan of Drefelin, as I go along.
The first thing I should do is congratulate the noble Lord, Lord Adonis, on understanding what I think is quite opaque drafting, in certain places, by the parliamentary draftsman. He was spot on in his interpretation of subsection (4), which was the question asked by my noble friend Lady Walmsley. It was designed precisely to capture the situation that she cited as an example that she wanted captured, so I hope I can reassure her that it would meet that.
As for the point raised by my noble friend Lord Phillips, it is fair to say that one of the tests for the approval of a new free school will be for the promoter to show that there is demand and support. Without being able to demonstrate that there is demand and support, without that basic evidence, the proposal would simply not be accepted or endorsed by the Secretary of State. It is not the point that one would need to have reassurance that he would satisfy himself that, if it had not happened, a consultation needed to take place. If the new free school proposal cannot demonstrate parental support, which could be demonstrated, I think, only by consultation, the proposal could not be accepted. That is, in part, the answer to the noble Baroness, Lady Morgan. Before approving a proposal, the Secretary of State would have to see evidence that assured him that there was appropriate demand and support.
Secondly—I know that this concern about free schools was raised by other noble Lords —the Secretary of State has made it clear that he will carry out a fit and proper test of any proposer of a free school and take that extremely seriously. Thirdly—I am happy to put this on the record—we have obviously accepted the argument made by a number of noble Lords that we need to be clear in legislation that the requirement to consult applies equally to new free schools as it does to the converting academies that we discussed at an earlier date. The aim and purpose of these amendments is to achieve precisely that.
Moving on to Amendment 8 in the name of the noble Baroness, Lady Morgan, I find the argument put forward by the noble Lord, Lord Adonis, quite persuasive. I know it is surprising. It is persuasive about the difficulty of these descriptions laying oneself open to legal challenge, so I do not find myself compelled to accept Amendment 8. As for the noble Lord, Lord Knight, if it is acceptable to him, because he made important points, although they were more like Committee stage points and quite a long way from the specific amendments about consultation, perhaps I may follow that up with him afterwards. I am happy to write to him. I am happy to meet him and talk about his points because I agree that they are important points. I hope that that provides the noble Baroness, Lady Morgan, a little more information in the light of which—
Lord Phillips of Sudbury
I apologise for interrupting the last gasp of the Minister’s excellent reply, but would it be fair to say that the obligation of the Secretary of State on the impact consideration is, to a significant degree, a different undertaking from the consultation to be undertaken by the promoters and that the Secretary of State will have to form his or her own judgment as to impact?
Baroness Morgan of Drefelin
Before the Minister responds to that point, will he also consider the points made by my noble friend Lord Knight about the impact on schools in an area? We talked about funding at Second Reading, in Committee and on Report. It is a theme that has come back again and again and it is an important point. When you are looking at the impact of a new school on an educational community, funding is a key question.
Lord Hill of Oareford
I was not disputing for one moment that it is an important issue. I was attempting, however crudely, to make the point that, with regard to consultation, which is the purpose of these amendments, I was not clear, as I listened to his points, precisely how they related to the amendments. As for my noble friend Lord Phillips, I have difficulty because he always asks such intelligent, perceptive and well-argued questions. My noble friend asked whether the Secretary of State will have to take the impact into account. The answer to that question is yes.
Lord Hill of Oareford
“Consultation: additional schools
(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person must consult such persons as the person thinks appropriate.
(2) The consultation must be on the question of whether the arrangements should be entered into.
(3) “Additional school” has the same meaning as in section (Impact: additional schools).”
“Annual reports
(1) For each academic year the Secretary of State must prepare and publish a report containing information on—
(a) Academy arrangements entered into during the year, and(b) the performance of Academies during the year (see subsection (2)).(2) The report must include information relating to the performance of Academies which has been provided to the Secretary of State pursuant to—
(a) regulations made under section 537 of EA 1996 (power of Secretary of State to require information);(b) Academy arrangements.(3) The first report under this section must relate to the academic year beginning 1 August 2010.
(4) The Secretary of State must lay before Parliament a copy of each report under this section.
(5) In this section “academic year” means a period of 12 months beginning on 1 August.”
Baroness Williams of Crosby
I am grateful to the Minister and to the Secretary of State in another place for the consideration and care that they have given to the whole issue of accountability. The Bill has improved considerably as a result of discussions in this House. We have had long discussions about the issue of consultation and governing bodies, and the net effect of this has been that we have a much more accountable and responsible structure in the Bill than we had when it began. For that, and for their willingness to listen, I thank them both.
At an earlier stage in the Bill, when my noble friends Lord Phillips of Sudbury and Lady Walmsley were very concerned about issues of accountability, we came up with the proposal that there should be an annual report to Parliament, and it is still highly appropriate to hold on to that. It is correct that the Government should have accepted this amendment and I thank them for their help in drafting it.
The purpose of the amendment is to enable not only the Select Committee but Parliament itself to consider what is, after all, a major experiment in education. There will be many aspects of that major experiment that people will want to look at. What happens to the quality of schooling, the movement of teachers and school leadership? What happens to the heads and governing bodies? There will be many more questions. So it is appropriate that a wider body than even a Select Committee should be brought into this discussion. One of the important issues here is going to be that the basis on which statistics are laid down in the annual reports should be broadly comparable with those in other related reports. My noble friend Lord Phillips will say more about that.
I shall point to two things in particular that are crucial in this report that we hope will be made available on an annual basis from this year onwards. The first of those is to track the effects of the removal of a great deal of what one might describe as “micromanagement” from the schools. Many of us on this side of the House, and many of us in the coalition, have been concerned about the levels of micromanagement in schools, and we believe that there is likely to be a more innovative approach and a greater deal of discretion for teachers if this experiment succeeds as the Government clearly intend it to do. On the other hand, there is a valid question that hangs in the sky: might we be moving towards a two-tier system of education? The initial applications are a little troubling in that respect. For example, counties such as Surrey and Hertfordshire appear to be responding at a rate of around 10 per cent of the secondary schools that might be applicable to become academies, whereas areas such as Middlesbrough, Knowsley and other poorer parts of northern England do not seem to be caught up with excitement at the idea of academies and are therefore not applying in large numbers to join.
There is another, related factor. So far, the schools that have applied appear, from the London School of Economics study which has been published in the past couple of days, to be atypically low in terms of free school meals and youngsters with special educational needs. These things will need very close observation, discussion and scrutiny. An annual report will be crucial in making that happen.
Again, I thank the Ministers on behalf of my noble friends and me for the consideration that they have given to this issue. I hope that this—which will, in its way, be something of an experiment—will turn out to be a very useful, radical new proposal in managing government and making it more accountable to Parliament than ever before. I beg to move.
Baroness Walmsley
My Lords, I added my name to this amendment, which I strongly commend to the House. I share my noble friend’s concern about the analysis of the socio-demographic groups of the children in the schools that have shown initial interest in this experiment. I hope that the attraction of the programme will spread more widely among the schools in this country if individual schools find it the best option for them.
I am delighted that the amendment is not too prescriptive. Noble Lords have mentioned in the course of our debates many groups about which they have concerns. An opportunity for a vigorous debate every year in Parliament about, for example, the impact of the programme on children with special needs, children in public care, children who are themselves carers, children in primary schools and children with the major deprivations that concern us all will be a very good contribution to the further development of the programme. It is important that Parliament has a vigorous and widespread debate about the progress of this programme.
Baroness Sharp of Guildford
My Lords, I, too, support the amendment. It is very important that if it is agreed, or if the Minister agrees to a similar amendment, it is enacted. It has been drawn to my attention that we have, in the various education Acts that we have passed in the past 10 years or so, quite frequently suggested that there should be an annual report. However, very few annual reports have appeared or been presented to Parliament. In particular, it was drawn to my attention that Section 38 of the Education Act 2002, “Communication with schools”, relates to a point that my noble friend Lady Williams raised about micromanagement. We were in the process of trying to limit the micromanagement of schools. That particular section requires an annual report, listing all the documents sent by the Secretary of State to governing bodies, to be laid before Parliament. I cannot find any evidence that such a report has ever been made, let alone laid before Parliament or discussed here. Perhaps I should have chased this up earlier. According to Hansard, the noble Baroness, Lady Ashton, who was the relevant Minister at the time, said:
“I am grateful to the noble Baroness, Lady Sharp, who pushed and prodded us to the point that we have reached”.—[Official Report, 23/7/02; col. 249.]
I feel that, to some extent, I should have chased this report more than I have, but it makes the point that if we wish for an annual report, we should receive one and it should be considered before Parliament.
Lord Adonis
I have absolutely no objection to the amendment. If this is part of the glue that is holding the coalition together, it is clearly a very worthwhile amendment. However, it does not amount to much, since Ofsted already publishes an annual report that evaluates the progress of all schools. It has not been mentioned in our debate, but Ofsted gives specific coverage to the performance of academies in that annual report.
The last Ofsted annual report makes glowing reference to the progress of academies—to the value that they add and, in particular, to the extremely favourable ratings that Ofsted gives them, especially to their governance and management. That is the main difference that academies make; they bring in and enhance governance and management.
The Ofsted annual reports have, over several years, substantially validated the previous Government’s decision to start the academy movement. I imagine that this annual report will largely photocopy the annual report which Ofsted produces. It no doubt goes through a different bureaucratic procedure and will allow different opportunities for debate, but it will not substantially add to the knowledge base which the House and the public already have as a result of the Ofsted report. It complicates the legislative framework a little, but that may or may not be a bad thing.
Baroness Howe of Idlicote
My Lords, I am, I admit, rather attracted to this idea. Maybe it has gone on in the past and it has not appeared before us or we have not followed it up as we should. Nevertheless, we are talking about a situation in which there are going to be rather a large number of changes. It would also have the attraction of being a sort of pre- and post-scrutiny process. It would be a splendid opportunity to see how the whole scene is working, and equally, as the noble Baroness, Lady Walmsley, has said, where there are specific interests such as special needs, to see what is happening about children in care and so on. I think it well worth considering, and I hope the Minister will consider it favourably.
Lord Willis of Knaresborough
First, I am extremely supportive of these amendments, but I was amused by the comments of the noble Lord, Lord Adonis, about Ofsted. I am sure he did not wish to mislead the House because that would be unforgivable, but Ofsted does not report on every school every year. In fact, the proposal of my learned friend the Minister is that those that get academy status, particularly those that get automatic academy status because Ofsted has already determined them to be outstanding schools, will in fact be rarely inspected by Ofsted. I think the whole purpose of my noble friend’s proposal in this amendment is that we will have comparable data, which we were due to have under the 1996 Act, so that we can make sure that we do not have the scrabble in the media to compare different types of schools but that we have a baseline of data on all our schools, including academies, that allow this House, and indeed the other place, to have a sensible, adult and cultured debate about the progress of our schools.
Baroness Garden of Frognal
My Lords, I, too, support this amendment in the name of my noble friends. The process of having an annual report might also greatly reassure all those who have raised concerns about special educational needs in the academies throughout these debates. This would of course be a monitoring activity whereby we could see how the academies were responding in that particular area as well as across the other fields.
Baroness Morgan of Huyton
I have a question for the mover of the amendment. While I am not unsympathetic to this amendment, because in a sense it reflects some of our conversations in Committee and on Report, I am not clear whether it suggests a parallel process of monitoring that goes into all academies in the future. If it does, I am unconvinced that the department at present is able or ready to do that. I do not think we have seen much evidence recently of sufficient numbers of civil servants with time on their hands with the capacity to go into schools and produce a whole set of parallel reports. I would have thought a more sensible approach would be to look to Ofsted to see whether it could do some specific work on the new section of academies that otherwise are not going to be reported on regularly. While I have nothing against the spirit of the amendment, I am rather doubtful about setting up a parallel process with a group of schools that is not being applied to other schools.
Baroness Walmsley
I hope the House will allow me to say on behalf of the mover, since clarification has been required, that the analysis by the noble Baroness, Lady Morgan, of the amendment is a misreading of its intention.
Baroness Morgan of Drefelin
Well, another Morgan rises. This is a very interesting amendment. It has prompted quite a fascinating debate at the end of the passage of this Bill. For me the question is: what do we really want this annual report to look at? Is it the free- market, free school experiment in which we replicate the experience of Sweden so we can see by evaluating the impact on standards, as they did in Sweden, how standards fell markedly, or the expansion of the Labour Government’s very successful academy programme and how the coalition Government have learnt from that and further driven up standards based on our expertise and experience? There are lots of different ways of looking at this report.
I am very much in favour of ensuring that we have the data to evaluate the impact of government policy, that they are properly scrutinised and that Parliament has the opportunity to debate the outcome of that work. What would most interest me is a commitment from the Minister that we will debate this policy of expanding or morphing Labour’s academy programme to encompass outstanding schools and its impact, and have some hard data to back up the debate. We are having a conversation around this House that will carry on for some years. It would be good if that were to be supported by hard data. In the past, we have also had real concerns about the impact on children with disabilities and special educational needs, and on children in care. The ability to shine a light on the impact of the policy on their experiences and outcomes would also be of help. I am therefore sure that if that means we are actually going to do something with the data, I would support that. If there are annual reports that have not been published but should have been, I am sure that they are in the process of being compiled and we will see them coming on stream very shortly.
Lord Hill of Oareford
My Lords, I am very grateful to my noble friend Lady Williams for moving this amendment, not least because it gives me an opportunity, perhaps for the first time in our many lengthy discussions, to disagree with the noble Lord, Lord Adonis. I am grateful for that, if for nothing else—even though I obviously applaud the fact that that the amendment will deliver scrutiny and rightly give Parliament the opportunity to look at the progress of this important policy. As the noble Baroness, Lady Morgan of Drefelin, said, we have had an interesting debate in which all sorts of views have come from some surprising quarters around this House. I welcome the support of her party to openness and parliamentary accountability, which is perhaps a shift from the position that it might have adopted a few months ago when noble Lords were calling for debates and scrutiny. However, that point may be unfair.
During the second day of Report, I agreed and was keen to reflect on the persuasive arguments brought by my noble friends Lady Williams and Lady Walmsley, and, I accept, by the noble Lord, Lord Hunt, when we debated the importance of parliamentary scrutiny of the progress of academies and the impact of the Bill. I am therefore delighted that my noble friend Lady Williams has returned with the amendment.
We believe—this lay behind the point made by the noble Lord, Lord Adonis—that academies already operate within a highly accountable framework. They are indeed inspected by Ofsted and have to report on their performance to the Secretary of State; but I fully accept my noble friend’s argument that this policy marks a significant extension of the academies programme and that it is therefore right that we should report regularly to Parliament on its progress.
On the question asked by the noble Baroness, Lady Morgan of Drefelin, decisions about debates are probably not taken by me; I do not know, and it is not my area. Others in the House authorities will take them. However, if such a decision is taken, we could certainly debate the issue and, after the discussions that we have had so far in Committee and on Report, I can hardly wait for another opportunity to discuss academies.
I thank my noble friends Lady Williams and Lady Walmsley for their help and advice on this issue. It is also true, having heard the noble Baroness, Lady Sharp, talking about prodding and poking, that I feel prodded and poked by many of my noble friends, including the noble Baroness. I am grateful for that. I also thank all those who gave so generously of their time in Committee and on Report. A hard core sat through many hours, including Members of the opposition Front Bench. I should like to place my thanks to them on the record. I am grateful to noble Lords for the contributions made from all sides of this House. I am certain that the Bill is better as a result.
Amendment 9 will increase transparency and accountability to Parliament. That seems the right way forward, and I am extremely happy to accept my noble friend’s amendment.
Baroness Williams of Crosby
My Lords, I thank the Minister and will comment briefly on the agreeable words of the noble Baroness, Lady Morgan of Drefelin. The purpose of this annual report is to enable us to find a great deal of wisdom and information on a number of things that we might be concerned about. I mentioned earlier, as did my noble friend Lady Walmsley, the socio-economic structures of those entering the academy pattern and whether there would be considerable diversity, given that it is likely to be a different group according to which academies come forward. Other noble Lords have mentioned their concern about SEN or how far local authorities will play a strategic role. We can get a great deal out of this kind of report.
I have long believed, not least in education, which is a long-term project by nature of the speed at which children grow up, that we would have been wise on all sides of the House if many years ago we had much more carefully considered the effects of what we passed in our respective Houses of Parliament, rather than moving on to the next piece of legislation without learning much from the previous pieces. For all those reasons, this is not an issue of political disagreement; it is a step towards the whole concept of an accountable Parliament in an accountable democracy.
Counterterrorism and Security
(13 years, 10 months ago)
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The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, with the leave of the House I will repeat a Statement made by my right honourable friend the Secretary of State for the Home Department on the review of counterterrorism and security powers.
“With permission, Mr Speaker, I would like to make a Statement on the review of counterterrorism and security powers. As I have said to the House before, the first duty of Government is to protect the public—but that duty must never be used as a reason to ride roughshod over civil liberties. And that is what the last Government did on too many occasions. This Government are different. We have already introduced legislation to get rid of ID cards once and for all. We have already declared our intention to bring forward a freedom Bill later this year. Just last week, I announced interim restrictions on the use of stop and search powers under Section 44 of the Terrorism Act 2000.
Today, as promised in the coalition agreement, I am announcing an urgent review of counterterrorism and security powers. The review will consider six key powers. They are: control orders; Section 44 stop and search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.
These are the most controversial and sensitive powers. In particular, the issue of pre-charge detention has been the subject of considerable debate in this House and tomorrow we will consider whether to renew the current detention limit for a further six months. This will provide us with sufficient time to look carefully at pre-charge detention in the review and to explore how we can reduce the period of detention below 28 days. The review will also help to inform what additional safeguards are needed in the proposed asset freezing Bill which the Treasury will introduce shortly.
The Government's work on the use of intercept as evidence in court and the modernisation of our interception capabilities will be done separately and will not form part of this review. The review will be conducted by the Home Office with the full involvement of the police, the security and intelligence agencies and other government departments including those in Scotland and Northern Ireland. I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to this review and it has said that it will be delighted to do so. I am keen to involve other civil liberty and community organisations. As with other reviews, I would urge anyone with an interest to submit their views to the Home Office.
To ensure independent oversight of the review, I have asked the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, now a Member of the other place, to make sure that the work is properly conducted, that all the relevant options have been considered and that the recommendations of the review are not only fair but seen to be fair. This role is distinct from the excellent work that is already being undertaken by the noble Lord, Lord Carlile of Berriew QC, in his statutory role as independent reviewer of terrorism legislation. The proposals made by the noble Lord, Lord Carlile will be fully considered as part of the review and I know that he welcomes the additional independent perspective that Lord Macdonald will provide on these issues. Any legislative amendments as a result of that review will of course be subject to review by the independent reviewer of terrorism legislation.
I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. So I will report back to Parliament on the outcome of the review after the Summer Recess.
Before I finish, I want to make one thing absolutely clear. In correcting the mistakes of the previous Government, we are doing just that. We are not criticising or castigating members of the police or the security and intelligence services. They do their work with bravery, patriotism and a strong sense of duty—and I know the whole House will want to join me in paying tribute to them.
The review will enable this Government to put right the failures of the last, and in so doing, restore the ancient civil liberties that should be synonymous with the name of our country. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord Brett
My Lords, I am grateful to the noble Baroness for repeating the Statement made by the Home Secretary in another place. It is worth recalling that the terrorist legislation passed in 2006 had all-party support, driven by the widest understanding that the only response to al-Qaeda, and to protect our people from a potential repeat of the horrors of the 7/7 tragedy, was to counter the threat and defeat it. The all-party support was buttressed by an endeavour on the part of the Government at the time to ensure the widest consensus and to consult extensively to that end.
Five years later, the threat has not diminished, as the Prime Minister reminded Parliament and the country in his Statement on 6 July. This leads to my first and most important question. Will the Minister confirm that this review is not being held to scale down the powers needed to address the severe security threat that we still face? To that end, will she give her latest estimate of the number of terror suspects engaged in complex plots? Will she say how many such plots have been disrupted since 7/7? Will she ensure that the same spirit and degree of consensus-seeking takes place in reviewing anti-terrorist legislation that characterised the approach to the 2006 terrorism legislation? Will the Government publish the terms of reference of the review, and if so, when? Also, will the review encompass the measures announced last week in respect of Section 44? All noble Lords will agree that the first duty of government is to protect the public. However, I am sure they will also agree that that must be balanced with the protection of civil liberties.
That leads me to a final question and a comment on what now seems to be a mantra in government: to blame everything, including the weather, on the previous Government. I think that there is a slightly partisan element in the penultimate paragraph of the Home Secretary’s Statement. She lays great stress on the “mistakes of the last Government”, while warmly commending members of the police, security and intelligence services on their “bravery, patriotism and a strong sense of duty”. I strongly endorse that tribute, as will all noble Lords. However, I should like to ask a question which no one in government is better qualified to answer than the noble Baroness, Lady Neville-Jones. Does she agree that much of the strengthening of anti-terrorism legislation was in direct response to the request of those same brave and patriotic police, security and intelligence services and their need for better weapons and resources to tackle those who would perpetuate another 7/7 or perhaps something worse? Alternatively, does she believe that it was thrust upon unwilling police, security and intelligence services? Accordingly, can she assure the House that the weapons and resources available will not be diminished as a result of the proposed review?
Baroness Neville-Jones
My Lords, I certainly join the noble Lord in his view that there is wide agreement in this House and between the aisles on the need for appropriate legislation to ensure our security. I do not think that anything divides us on that. He asked a number of fairly specific questions and I shall do my best to answer them. The first practical one was whether the review will be conducted in a way that does not lower our security. That is absolutely the case. With my title and obligations, it is one of my tasks to ensure that that does not happen.
I was asked when the terms of reference will be published. We are now conducting a certain amount of internal work which should certainly enable us to publish them in time for the start of the consultation. As we indicated, the timetable is fairly short, and we want the review to be carried out rapidly for two reasons. First, we believe that the changes can and should be made, and that they are not so complicated that a very long time is required for them; and, secondly, a degree of uncertainty in the legislation, particularly in relation to Section 44, needs to be clarified. Therefore, there are good reasons for not delaying the timetable that the Home Secretary has set out. As I said, we will publish the terms of reference and make sure that bodies with a strong interest are able to look at them and put forward their views. We will find some practical means, such as a website, to ensure that people are able to submit those views.
As I said, the review will cover the rather anomalous situation that has arisen in relation to Section 44 so that there is clarity for the police in going forward. I take the noble Lord’s point that many of the measures put in place earlier were in direct response to the security situation that had arisen. It is fair to say that the Terrorism Act 2000, which in good part was based on previous Conservative Party legislation in relation to Northern Ireland and was built partly on the report of the noble and learned Lord, Lord Lloyd, was indeed consensus legislation. Since then, I think that there have been divergences between us, and it is those that we want to try to correct.
There was quite a lot of controversy over the length of pre-charge detention. That, frankly, has not been stilled by the legislation that we now have in place and it is clearly one of the main reasons for wanting this review to take place now. In one or two other areas, it is not so much a question of what is on the statute book—although I think that clarity on the statute book is government’s responsibility—as how it has been used. Therefore, if we have to alter legislation, we want to bring clarity to exactly what people are permitted to do. This is an example in the area, for instance, of the Regulation of Investigatory Powers Act and the powers of local authorities—the level of authority that they will need to obtain in order to be able to operate their rights under the Act, and indeed, as I say, to prevent abuse of Section 44.
So it is partly a question of how much we change the framework of the legislation, and part of it is to try to control and prevent further abuse. Also on control orders, the courts have shown that they are unhappy about the breadth of some of the legislation. We want to try and ensure that if we decide in the end that those control orders have to remain as part of our panoply of powers, they are used in a manner which is proportionate and in accordance with our obligations under the Human Rights Act.
Lord Lloyd of Berwick
My Lords, I welcome every word of this important Statement, especially the appointment of my noble friend Lord Macdonald to oversee the review. Am I right that independent oversight by such a person is a novel idea for a Home Office review? Whether I am right or not, I welcome the idea most warmly.
Among the six matters which are to be reviewed we will each have our own pecking order. The most harmful in my view have been control orders, 28 days’ detention without trial and Section 44, in that order.
Does the Minister recall the pledge given by the previous Government after an all-night sitting in March 2005 that they would bring back control orders for a comprehensive review within a year? I remind the noble Lord, Lord Brett, that although there was a degree of consensus in relation to the 2006 Act which he mentioned, there was certainly no consensus in relation to the 2005 Act. If there had been, there would have been no need for an all-night sitting.
Does the Minister share my relief that that pledge given back in 2005 is now being redeemed? Does she also recall another pledge that the whole mass of terrorist legislation which now disfigures our statute book would be consolidated? This is of course nothing like as urgent as the other matters which have been mentioned, but I hope the Minister can say that this idea has not been forgotten either.
Baroness Neville-Jones
My Lords, I do not know the answer to the question of whether this is a novel idea. I certainly think it is a very good one, and obviously the object of having the involvement of the noble Lord, Lord Macdonald, is to ensure, and also to be able to give assurance to the outside world, that the review has been thorough and looked at all the options, and that it has been impartial and provides the best balance between our security needs and our rights as citizens as we can provide.
I share the noble and learned Lord’s relief that we are able now to redeem the pledge on the review of control orders. This has been overdue and that is why we regard it as an urgent thing to get on with.
On the question of consolidation of terrorism legislation, that is one of the things we would like to do. Noble Lords will be aware of the volume of urgent things that need to be on the statute book so I cannot promise that it is going to be an early piece of legislation. What is more, if we are going to do it we should do it thoroughly and well. In that area, haste will be the enemy of good work. I would rather produce a decent piece of legislation in due course than hurry at it. Finally, I hope that over time we are going to be able to reduce this panoply of emergency legislation. In a sense, it is no part of a democracy to have to continue with this sort of legislation for a moment longer than we need.
We still face a persistent and serious threat—and I failed to answer the noble Lord’s question about terrorist plots. I hope that noble Lords will forgive me for being unable to answer it today. I will be in a better position to do so next week when we debate the legislation on pre-charge detention. Indeed, I will be happy to do so then.
Lord Dear
My Lords, I echo the words of the noble and learned Lord, Lord Lloyd of Berwick. I agree with everything he said. I, too, welcome the review. I could speak at length about all six items enumerated in the Statement but perhaps I may pick up only one—item six, on the detention of terrorist subjects before charge. Will the Minister assure your Lordships' House that due weight will be given to the views and experience of the current DPP? I ask that question because when, like others, I was closely involved in the attempt to extend detention before charge from 28 days to 42 days, the then DPP and the two immediate successors said that they had not needed powers to go beyond 28 days. Notwithstanding the tremendously high standard of work carried out by the police and security services, it occurs to me that of all the bodies on this stage, the DPP is most particularly concerned with the adequacy of evidence and whether charges should be preferred.
Furthermore, the Minister commented on the use of intercept evidence, which will not form part of this review but will be looked at separately. Will she assure the House that that review will not be deflected? My views and those of other Members of the House have been outlined on a number of occasions, and a body of opinion says that it should be looked at as a matter of urgency and legislation changed to allow that form of evidence to be admitted.
Baroness Neville-Jones
My Lords, on the noble Lord’s first point, I can guarantee that we will be giving due weight to the views of the current DPP. I entirely agree with the centrality of those views. As I said, we will give weight to all views that are put to us.
As regards intercept evidence, I entirely take the point that it must not be left to moulder for ever. The Chilcot committee is still doing its work and we believe that it ought to be allowed to finish it. The noble Lord also knows that there are a number of issues that are not entirely straightforward. I am not in any way suggesting that we will not continue with this work, but it is because we do not believe that we can put it on a relatively fast track that we do not want to include it in this particular package. However, we will certainly be bringing forward our conclusions and, if necessary, further proposals.
Baroness Symons of Vernham Dean
My Lords, will the Minister develop a couple of points? The fourth of the six powers to be reviewed is that of extending the use of deportations with assurances. Is it envisaged that the use is to be extended to different categories of people in this country, or is the power to be extended to different countries? I have had experience of dealing with that in the past few years, and I know that however keen we are to see people leaving our shores, those receiving them are not always thrilled to bits about the idea of having them back. Can the Minister tell us anything more on that point?
My second point is one of clarification not about the role of the noble Lord, Lord Macdonald of River Glaven, but about his authority. Is this review to be a Home Office review under the name of the Home Secretary, or is it to be a review to which the noble Lord, Lord Macdonald, will be giving his name? If it is the latter, can the Minister tell us what the position of the Home Office will be in regard to the costs of the review? The Statement clearly indicates that it is the first duty of government to protect the public, and we would all agree with that. Therefore, it must surely have first call on public finances. If the review comes up with suggestions which are a cost to the public purse, can the Minister assure us that it will be readily met by the Home Office?
Baroness Neville-Jones
On the noble Baroness's first point about extending deportation with assurances, how right she is: that is very difficult. Her point about our desire to deport and others’ reluctance to receive is absolutely right. Extension should be understood primarily in the area of, nevertheless, trying to extend the policy to other countries. We have no present intention to extend the categories. In many respects, this is a highly practical and political problem; it is not, frankly, a legislative problem. We felt that, as this is a matter of such public concern, we need to try to make progress. The Foreign Office is actively engaged with Governments on the issue. I cannot promise how much we will have to report. I cannot say that I am confident that we will have made a great deal of early progress, but we take this issue seriously and we want to try to make it effective. It may require more action on a broader front to make the policy effective and, at the same time, consistent with our obligations.
On the noble Baroness’s second point about the auspices of the review, this is a Home Office review. This review is not being let out to someone else. The reason for asking the noble Lord, Lord Macdonald, to be involved is to provide assurance that a Home Office review of its own legislation has injected into it a degree of standing back and impartiality, to ask whether it makes sense and to help those who, after all, have drafted previous legislation themselves to stand back from what they have done previously. It is to open a window and let in a bit of fresh air—that is the spirit of it—and to create a certain amount of challenge in the system, such that we can be satisfied that when we come up with something, it passes various tests.
Baroness Manningham-Buller
I welcome the announcement of the review by the Minister. I suppose that I should declare an interest, in that I was head of the Security Service from 2002 to 2007, when much of this legislation went through. I also welcome her kind remarks about my former colleagues. However, I would like to correct the impression that all legislation was in response to requests by the security and intelligence services—or, indeed, by the police. That is completely untrue. There were certainly things that we sought and asked for but, as I have said in this House before, control orders, for example, were not one of them. The previous Government rightly made their own decision on what to legislate for. They were not dictated to or responding to endless requests from us. They took their own view on what it was appropriate to legislate for. I make that correction.
Baroness Neville-Jones
The House would agree that the noble Baroness is quite right; the Government in office must take responsibility for the legislation that they put forward.
Baroness Hamwee
My Lords, I welcome the Statement very much. I think I heard the Minister say that the Home Office will be consulting on the terms of reference, not just once the terms of reference have been set. That would be very welcome, because so many of those who are concerned with these issues may want to have an input at that early stage. With regard to the terms of reference, I ask about item 4, which may remain the fourth of six or become the fourth of more items. The term is,
“extending the use of deportations with assurances”,
which suggests that the Home Secretary already has a view that they should be extended. Everything else is couched in more neutral language, and I wonder whether the Minister would comment on that.
With regard to intercept as evidence, can the noble Baroness assure the House that the noble Lord, Lord Macdonald, and those conducting the review will be able to talk to the team dealing with intercept as evidence, because even if it is not included in the review, there must be information that could usefully be shared?
Baroness Neville-Jones
I hope that I did not mislead the noble Baroness when I talked about the terms of reference. We will publish them, but we do not intend to consult on them per se. I hope also that I made it clear that we will have a very open consultation process that will include not only consulting in an organised way with various interested parties, but offering the opportunity through a website for a wider audience to offer its views. I hope that the terms of reference will not themselves be a constraint on the way in which the six topics are dealt with.
I will say one thing in defence of not consulting on the terms of reference. We want to move on this fairly fast, so there are limits, if I may say, to the number of stages to which we should apply the consultation process. I beg the indulgence of the House in suggesting that we should leave it as an extensive consultation process that will follow, having set the terms of reference.
On the question of the extension of deportation with assurances, I do not have a great deal to add to an earlier answer. We see being able to extend the process of DWA to other countries as useful and in the public interest. The reason is a practical one. We find that there is an increasing number of nationalities where the need to deport is actually an operational requirement. We want to put in place circumstances in which we can do that in a manner compatible with our obligations.
Finally, the noble Baroness asked about the relevance of intercept as evidence. She is quite right to say that various aspects are relevant to the subjects that we have under discussion, and those involved in the review will indeed have the necessary access.
Lord Judd
My Lords, the Joint Committee on Human Rights has done a great deal of work on this issue. Can the noble Baroness assure the House that its work will be taken into account in the review? Does she agree that terrorists operate when there is substantial alienation or, at least, ambivalence among people about how far they support the prevailing laws? In that context, is it not important for the review at least to take a look at how immigration, asylum and border controls are operated, to ensure that these are being done at all times in ways that win people’s heart and minds rather than actually leading to alienation? Finally, on deportations with assurances, I support some of the anxieties that have been expressed and ask simply whether the review can look closely at how much credence in the long term can be based on assurances, particularly with countries in which the use of torture is systematic in their administration of so-called justice?
Baroness Neville-Jones
The noble Lord is right that the Joint Committee on Human Rights has done extraordinarily valuable work, and I give him an absolute assurance that it will be taken into account in this review. On the question of whether there is support in the country for this body of prevailing law, one reason we want to look at it is precisely because we know that there is indeed unease—but not, I think, unease which is particularly to be found in any single quarter; it is more general than that. Obviously there are related issues and the question in all such reviews is about where you stop. One area that we regard as related, but which we are going to take separately although in current time, is how we pursue one of the four strands of CONTEST, that of the Prevent strategy. Our aim is not to abolish it, but we hope to make it more effective or, if I may put it this way, a bit more fit for purpose because we regard it as a flanking policy which affects the acceptability of some of this legislation, particularly among ethnic and minority communities.
Finally, the noble Lord raised the issue of deportation with assurances. The Government know that this is a difficult area and that what is written on paper is not always necessarily the reality. We also know that if we do not attempt to start a dialogue with countries and get assurances about the conditions into which people are going to be sent back and that they will be safe, we reduce the possibility of introducing such a policy. We have to have the capability, over time, of removing from this country people who have been convicted of very serious offences, and it is into that category that these people fall. We want to pursue the policy, but we do so with our eyes wide open.
Nanotechnologies and Food: Science and Technology Committee Report
(13 years, 10 months ago)
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Lord Krebs
That this House takes note of the Report of the Science and Technology Committee on Nanotechnologies and Food (First Report, Session 2009–10, HL Paper 22).
Lord Krebs
My Lords, I start by declaring two interests, as a former chair of the Food Standards Agency and as president of Campden BRI.
Nanotechnology is the study of the very small. It involves manipulating matter on the scale of atoms or molecules. If you are like me, you may find it difficult to get your mind around just how small “small” means. Let me give you an idea. It is sometimes claimed that medieval scholars such as Duns Scotus and Thomas Aquinas debated the question of how many angels can fit on the head of a pin or even the point of a needle. The authenticity of this claim is disputed, although in 1667 Richard Baxter, in his tract The Reasons of the Christian Religion, definitely refers to such a debate. If we move from angels to nanoparticles, how many could you fit on the head of a pin? The answer is 300 million nanoparticles, each 100 nanometres in diameter. Alternatively, your Order Paper is roughly 100,000 nanometres thick. A further day-to-day illustration to make the point for noble Lords present is that their beards will have grown by roughly 200 nanometres since I started speaking. That is not a personal statement but a general phenomenon.
The notion of manipulating materials at the nanoscale was first suggested in 1959 by the Nobel Prize-winning physicist Richard Feynman, who noted that at this very small scale the conventional forces that we think of as influencing materials, such as gravity, would be replaced by other forces at the atomic level. As a result of this, and the very large surface area to volume ratio, the properties of materials may change dramatically at the nanoscale when compared with more conventional scales. For example, normal silver melts at a temperature of 960 degrees Celsius, but nanoscale silver particles can be melted with a hairdryer.
The phrase “nanotechnology” was first used in 1974 by the Japanese scientist Norio Taniguchi, and nowadays the potential of nanomaterials and nanotechnologies is being explored in many areas, from electronics to materials and the self-assembly manufacturing processes. Nanotechnology has also become the stuff of science fiction. Some commentators have been influenced by Michael Crichton’s book Prey, in which nanoparticles self-assembled into free-flying swarms that attacked human brains. Unfortunately, Mr Crichton got his science wrong. The forces of Brownian motion that act on nanoparticles would prevent them from assembling into co-ordinated swarms. The grey goo of certain parts of the popular press is a myth of science fiction.
Let me turn to the specifics of our inquiry. We chose to focus on just one area—the application of nanotechnologies in the food industry. In making that choice, we wished to restrict the range of our inquiry and we were also aware of previous, more general reports, notably an excellent Royal Society/Royal Academy of Engineering report, published in 2004.
The use of nanotechnology in the food sector is projected by experts to be a growth area. One projection is that by 2012 the global market for nanotechnologies in the food industry will reach a figure of $5.8 billion. What are the current and potential applications of nanotechnology in food and food-related products? This may appear to be a simple question but, as noble Lords will hear in a moment, the answer is not that straightforward. Scientific experts advise us that the potential of nanotechnologies in food may be summarised under four main headings. First, there is the reformulation of processed food. For instance, smaller quantities of an ingredient can achieve the same flavour and mouth feel if the ingredients are nanoscaled. This is in part because of the large surface area of nanoscaled particles. You can reduce the salt content of food without affecting its taste and reduce the fat content of food, such as ice cream or mayonnaise, without affecting their eating properties. You can also deliver nutrient supplements in nanoencapsulated particles that have nutritional benefit without affecting flavour. For instance, there is a loaf on sale in Australia that contains nanoencapsulated fish oils—the long chain polyunsaturated omega-3 oils that are good for the heart and perhaps the brain.
The second area is food packaging. We heard that nanotechnology can improve the barrier properties of food or drink packaging and therefore reduce waste by enabling food to be kept longer. To give one example, one of the major manufacturers of beer in the USA produces it in plastic bottles with a nanoclay layer to prevent the gas escaping and the beer going flat. There is also the potential for so-called intelligent packaging which will detect chemical changes in the food and enable the consumer to throw it away at the right moment rather than slavishly following best-before dates.
The third area of potential application is in the manufacturing process where we heard that nonotechnology can be used to develop anti-stick and anti-microbial surfaces to increase the efficiency of food manufacture. The fourth area of potential application is in agriculture, where we heard that nanoscaled pesticides or fertilisers may enable the farmer to use smaller doses and thereby reduce potential harm to the environment as well as save money.
That is all about potential but what about the current applications in the food we eat now? Here the story was more confused. On the one hand the Woodrow Wilson Centre in Washington has a database of 84 food-related products, including contact materials and supplements that are on the market world wide. On the other hand the Food and Drink Federation told us that there are no current or imminent products made in the UK and only two known uses on the market in the UK. Why this apparent discrepancy? In part, it might be to do with definitions. According to international standards, a particle becomes a nanoparticle if it has dimensions of 100 nanometres or less. If, for example, food contained particles of 120 nanometres, it would not be counted as food containing nanomaterials. But in food manufacturing it is highly likely that there will be a distribution of particle sizes, whatever the manufacturer intended, so a precise cut-off of 100 nanometres may be inappropriate. Whatever the current situation, there is clearly large—perhaps very large— future potential in this sector and several of our recommendations to government are related to capturing this potential here in the UK. We have a strong science base in the area of nanotechnologies, including in relation to food, and it is important to capture that science base in application rather than allow the knowledge to drift overseas for exploitation, as has so often happened in other areas in the past.
A key question at the heart of our report is whether the use of nanotechnologies in food poses potential risks to our health. Some witnesses argued that it might; others were more confident that there is no risk. Our conclusion from the evidence we heard is that, while there is no evidence of a clear and present danger from the use of nanotechnologies in food, there are important gaps in scientific knowledge that need to be filled in order for proper risk assessments to be undertaken. The whole point of using nanotechnologies in food is that they introduce novel properties into materials. Therefore, it is crucial to know how these novel properties affect the human body. While there is a considerable amount of research on the inhalation of nanoparticles and their implications for lung disease, there is far less work on the gut. In fact, we could identify only one research group in this country at the MRC Human Nutrition Research Unit in Cambridge that was active in this field.
We urge the relevant funders—for example, the Medical Research Council and the Food Standards Agency—to build more capacity in the toxicology of ingested nanoparticles as well as carrying out the relevant research to enable proper risk assessments to be undertaken. We recognise that research in this area, as well as regulation, is an international matter. Therefore, whatever research is undertaken in this country should be properly co-ordinated and integrated with research in other countries. But this recommendation of filling the knowledge gaps in relation to risk assessment is one that was made in 2004 in the Royal Society/Royal Academy of Engineering report and we were concerned that not enough had been done to take that forward.
In our consideration of potential risks from nanotechnologies in food, we distinguished between different kinds of nanomaterials. On the one hand, a distinction might be drawn between nanoparticles that occur naturally—I hope I will not alarm your Lordships by informing you that you have been eating nanoparticles all your lives, probably without knowing it—and artificially engineered nanoparticles. On the other hand, there is a distinction between nanoparticles that are rapidly degraded in the digestive tract, whether they are naturally occurring or engineered, and those that persist and therefore may be transported around the body, perhaps even crossing the blood/brain barrier and ending up in the brain. It is these persistent particles that could be more likely to pose a potential risk.
Does the current regulatory regime ensure that food containing nanoparticles is properly scrutinised for safety? The answer we drew from the evidence we took was: in principle yes; in practice not clear. The relevant legislation is European. The general principles of food law require food sold to consumers to be safe. More specific legislation applies safety standards to novel foods, food additives, food supplements, and food contact materials. So there might appear to be a plethora of adequate legislation to protect the consumer, but there is an ambiguity. Let me illustrate. If a food is reformulated to nanoscale certain ingredients—take an ice cream that contains the same kind of ingredients as before but with nanoscaled fat emulsion and therefore less fat—this may be deemed to be a novel food and therefore require prior approval under the novel food regulations. If not, its safety is guaranteed by general food law. However, given that the nanoscaling may itself introduce new properties and therefore new ways of interacting with the body, it would not be enough automatically to assume that, because we had always eaten ice cream, a nanoscaled ice cream would be equally safe.
In the United States we heard from the Food and Drug Administration of its concept of GRAS—generally regarded as safe—which applies to all foods that have been around for a long time and not caused a problem. The question in US terms is whether a food that has been eaten before and is now nanoscaled to produce new properties should generally be regarded as safe or subject to scrutiny under the novel food regulations.
There are two difficulties with this arrangement. The first is a lack of clarity about when a novel nanoscaled food would be considered a novel food under the regulations, because it depends on definitions. The second difficulty, to which I have already alluded, arises under any food legislation, be it for general food, novel foods or the other legislation to which I have referred. It concerns whether the gaps in scientific knowledge would enable the appropriate regulator—at the European level, it is European Food Safety Authority—adequately to assess risks.
Our proposal, based on the evidence we heard, was that, for regulatory purposes, the definition of nanoparticles should focus not on size alone—after all, size is not everything—but also on functionality; that is, how the nanoscaled material interacts with the human body. The key question for risk assessment and therefore for regulation is whether nanoscaling a material changes its properties in such a way as to have a potentially toxic effect on the body. We urge the Government in our report to take forward this matter of definition in Europe.
Finally, I turn to communication and transparency. We were told, both here and in the United States, that the food industry is reluctant to put its head above the parapet on developments of nanotechnology in food. There is apparently a fear that it could be a replay for the food industry of the debacle of GM foods in the 1990s. Your Lordships will recall that the food industry was at that time caught off guard by a combined campaign of certain newspapers and pressure groups and was forced in a rapid volte-face to withdraw GM products from the market, even though there had been and has still never been any identifiable health risk from approved products.
However, our conclusion was that there are a number of strong arguments against the policy of silence. First, by keeping quiet about nanotechnologies, the food industry leaves a communication vacuum into which pressure groups and/or inaccurate media reporting will happily step. Secondly, in contrast to what was said about GM products in the 1990s, there are real potential consumer benefits to be had from nanotechnologies—I have alluded to them—in producing healthier food, reducing waste and perhaps improving quality and flavour. Hence a communication narrative can be positive about developments that may be in the pipeline. Thirdly, silence and secrecy are fuel for the conspiracy theorists. One can just imagine stories that government and the food industry are conspiring to foist on the innocent consumer something that is dangerous and unwanted.
When I met leaders of the food industry recently to discuss our report, they emphasised the importance of a trusted, neutral ring-master to help with public engagement. For their money, the appropriate body is the Food Standards Agency. I hope, returning to an earlier debate in this Chamber, that the Minister will take this opportunity to confirm that newspaper reports of the FSA’s imminent demise are exaggerated. Public trust in food safety has been built by the Food Standards Agency. That would be put at risk if the agency were dismantled.
We did not see, however, an advantage in labelling foods that contain nanomaterials, as we could not see what consumers would do with such information when shopping in the supermarket. Instead, we recommended that the Food Standards Agency should keep a publicly available database of all nanofood products and food-related products.
I summarise my key points. Nanotechnology in food is forecast to be a growth industry. We recommend that the Government work to ensure that the UK is a major player in exploiting this opportunity. The Government should also work with the appropriate funders to ensure that gaps in knowledge for risk assessment are plugged. The Government should work with Brussels to improve the regulatory framework and definitions. There is a need for more openness and public debate, and the Government can play a role in this. While the previous Government accepted many of our 32 recommendations, we await a response from the present Government. I also note that with many of our recommendations, the previous Government, while accepting them in principle, did not actually say that they were going to act on them. I look forward to hearing the Minister’s response later in the debate.
In closing, I should like to put on record my thanks to a number of people. It was a privilege to chair such an excellent Select Committee, the members of which were very hard-working, enthusiastic and thoughtful as well as being delightful to work with. Secondly, the secretariat of the science and technology sub-committee provided subtle steers and excellent guidance and produced a top-quality first draft, which made our task easier in the closing stages. Our specialist adviser, Professor Stephen Holgate of Southampton University Medical School, a major international authority on allergy, kept us on the scientific straight and narrow and provided lucid technical input at key moments. As part of our inquiry, we travelled to Washington DC, where the embassy officials arranged an excellent programme and our US hosts were patient and informative in helping us to understand the position in their country. I beg to move.
The Earl of Selborne
My Lords, the whole House will be grateful to the noble Lord, Lord Krebs. It is not easy to explain just how small a nanoparticle is, but I think he put that into perspective. I am enlightened to know that you can get 300 million nanoparticles on the head of a pin; that is a useful bit of information. Noble Lords will gather that we were very well served by our Chairman; I was very privileged to serve on this sub-committee. The noble Lord, Lord Krebs, with his experience at the Food Standards Agency, could not have been better equipped to undertake the chairing of this really quite complicated but very important subject.
I see this report in a historical context. History, I suppose, is a rather rough description when this science, as noble Lords heard, is very recent, but in 2004, as the noble Lord, Lord Krebs, reminded us, the Royal Society and the Royal Academy of Engineering produced a very helpful report that set out the ground rules for how this new technology might be underpinned by appropriate research. You cannot, after all, regulate a new industry unless you have adequate research and understanding of just what is happening. Later, there was the report from the Council for Science and Technology in 2007, and the Royal Commission on Environmental Pollution in 2008 reported on novel materials. All these reports have been very significant, and there is clearly much expectation in them of nanotechnologies. We dealt only with food, which is a relatively narrow area, but the 2004 report anticipated—correctly, as it turned out, because we are already seeing it—that nanomaterials in a wider context were likely to become commonplace, and recommended that research into health, safety and environmental impacts should keep pace with predicted developments. This research is so important, again as the noble Lord, Lord Krebs, very helpfully pointed out, because, when you start using materials at this scale, they simply do not behave as you would normally expect them to. His example of melting silver with a hairdryer, as opposed to at 960 degrees Celsius normally, demonstrates that you are talking about something that is not as you would expect.
The other conclusion I came to after reading this report was that there is every reason to believe that nanotechnology, provided that health and safety issues can be addressed and quantified, will be put to some extremely helpful uses in the food industry. We are not yet there, but as we have heard already, if you can reduce salt and fats in foods, nanotechnology has obvious advantages. I recognise that ice cream with many times less fat is an extraordinarily marketable commodity; I would certainly be very interested in that. Better packaging and materials, increased shelf life, the reduced use of active ingredients and agrochemicals; it seems to me perfectly reasonable to anticipate these and many other applications.
The 2004 report, which got off to a good start a debate that is beginning to flounder, suggested that,
“the UK Research Councils assemble an interdisciplinary centre … to undertake research into the toxicity, epidemiology, persistence and bioaccumulation of manufactured nanoparticles and nanotubes, to work on exposure pathways and to develop measurement methods”.
The then Government did not adopt this recommendation. They continued to fund research into nanotechnologies through the established channels of grants through Research Councils UK and government departments, usually in response mode but with publicly funded nanotechnologies research co-ordinated through the Nanotechnology Research Coordination Group. When that body started out in November 2005, it published a helpful report that identified 19 research objectives grouped into five areas—we are talking of all nanotechnologies here—one of which was human toxicology.
It is disappointing to find that Defra sponsored a report last year that reviewed how many of these research objectives had been fulfilled by the Nanotechnology Research Coordination Group. The answer, particularly on the issue of human toxicology, is that a substantial amount of work remains to be done. The Defra review states that there have been,
“no systematic studies on the potential of different kinds of nanoparticles to get into the blood, the lymph or the brain”.
Our report comments—rather restrainedly, I think:
“We find this conclusion worrying”.
The Medical Research Council was assigned responsibility for research objective 11, which was to undertake:
“Research to establish a clear understanding of the adsorption of nanoparticles via the lung, skin and gut and their distribution in the body … identifying potential target organs/tissues for toxicity assessment”.
The Defra review concluded that,
“a … largely un-researched area is ingestion as a route of exposure … Given the potential for this route to expose very large numbers of individuals … the lack of activity in this area is surprising”.
This time our report comments:
“We find this lack of progress extremely concerning”.
It is not as if we have not had warnings in the interim. In 2007 the Council for Science and Technology’s report also drew attention to the Government’s slow progress on health and safety research, and said that this was due to an overreliance by government on responsive mode funding rather than directed programmes by government departments to deliver the necessary research. That is logical, is it not? If you wait in responsive mode and there happen to be no research workers applying for research funding in this area, you will not get your gaps filled. You need a bit of direction occasionally. That simply has not happened, which is why there is concern.
I ask my noble friend the Minister not for more money—that would clearly be unreasonable—but simply for the considerable sums of money that are spent on nanotechnology research to be partially reallocated, even in small measure, so that the health and safety issues are adequately addressed. The amount of money that we are talking about is very small compared with the development of these new technologies.
In 2007-08 I chaired a working group of stakeholders charged with drafting a voluntary code on good practice for organisations involved in the supply chain for nanotechnologies. The group included research organisations such as the Royal Society through to retailers, trade unions, consumer groups, and of course companies interested in nanotechnologies. We produced a draft nano code that was accepted with a degree of enthusiasm by all the stakeholders. The repeated mantra in all this was “Transparency, accessibility and accountability”—you cannot repeat it too often. Never hide from the public any shortcomings in the scientific knowledge—there are always some. Never try to persuade the public that the risks are less than might otherwise be thought. Be honest. This is something that the Food Standards Agency got off to a good start with after so many food scares when the regulatory authority was the Ministry of Agriculture, Fisheries and Food.
It is disappointing to find that this fundamental lesson does not appear to have been adopted by the food industry, either here or in America. The noble Lord, Lord Krebs, talked about the food industry not putting its head above the parapet. Somebody has to put their head above the parapet. I understand why the food industry would like a ringmaster—someone to co-ordinate the dialogue—but it is absolutely essential that such a dialogue takes place. It is essential that all stakeholders participate. It would be fine if the Food Standards Agency could be the ringmaster, but my main plea is that this public dialogue should be engaged in quickly.
Baroness O'Neill of Bengarve
My Lords, I, too, was privileged to serve on the Sub-Committee on Nanotechnologies and Food. Not being a scientist, I found it challenging. Being chaired by the noble Lord, Lord Krebs, it was also fun. With the excellent support that we received both from the Clerks and our specialist adviser, Professor Stephen Holgate, I think that I ended up understanding a certain amount about nanotechnology. What I think I understand very clearly is why this is an important topic, and one where the new Government will have reason to take action on various fronts.
The debate takes place at a moment that may be either awkward or advantageous—I am not sure which—but it is at the very least unplanned. The Select Committee’s report on nanotechnology and food addressed a world in which the Food Standards Agency was the UK’s lead body with responsibility for food standards and safety. The Government’s response to the Select Committee’s report is the response of the previous Government, who showed considerable confidence in the Food Standards Agency, which they asked to co-ordinate that response.
It is far from clear that this confidence is shared by the coalition Government. Over recent days there have been numerous reports that the Government plan to abolish or dismember the Food Standards Agency. Headlines have ranged from the Mirror’s rather trenchant:
“Food Standards Agency watchdog is chewed up by ConDems”,
to the Atlantic’s more political—indeed, conspiratorial —revelation:
“How the Food Lobby Killed Britain’s FDA”.
That is of course not a misprint, and it is inaccurate to think that the Food Standards Agency corresponds exactly to the Food and Drug Administration in the US.
Perhaps inevitably, some commentators have begun to wonder whether the Government are unsure which FSA they want to reform and which they want to abolish. We are tonight concerned only with the Food Standards Agency. The Government have indicated that they have not yet reached a decision on what might be done. The Minister confirmed that this afternoon in responding to a Question from the noble Lord, Lord Krebs. However, there is a widespread sense that the Food Standards Agency may be in some danger. The main question—which I hope the noble Earl can answer—is: how far do the Government plan to stand by a response that is not of their making? Which commitments do the new Government seek to shed and which do they seek to strengthen? The coalition Government should welcome many of the committee’s recommendations and endorse much of the previous Government’s response. This was, after all, a report about cutting-edge research, emerging technologies and their application in a domain of daily concern to everyone. It is not an area from which any Government would wish to bow out.
The questions that are raised by the introduction of new technologies—in particular very novel technologies that are not well understood—into food processing link basic and applied scientific research, knowledge transfer, innovation in manufacturing, the fate of a very large part of the British economy and the daily consumption of food by each one of us. The human and economic consequences of getting matters wrong could be large, ranging from failure to adopt food technologies that may be useful for human health, to failure to co-ordinate work on the scientific basis of nanotechnologies, to failure to build on the achievements of UK scientists, to a considerable loss of competitive advantage by the UK food processing industry, not to mention the possibility of failure to adjust regulation to focus accurately on the risk assessment that will be needed.
I am no friend of excessive regulation, and like many who have run a small institution, I know its costs all too well. However, there are cases in which laissez-faire and market solutions will not work. Public health is a public good, often not achievable by the interplay of market forces and consumer choice alone. The long-running battle between the FSA and the food industry over labelling illustrates—if it illustrates nothing else—that there are those in the food industry who prefer to communicate, or at least pretend to communicate, in ways that demonstrably are not understood by many consumers and indeed may not be comprehensible to many consumers. Mere labelling will not be enough to secure public acceptance of food products containing nanoparticles, despite the fact that nanoparticles are found in many naturally occurring products, including traditional foods—and the sub-committee was told that ricotta cheese contains many of them. We need a more thoughtful approach.
I have mentioned some examples of matters that bear on success or failure in the use of nanotechnologies, in particular in the food industry, where, it seems to me, only Government and regulatory action can hope to be effective either in protecting consumers or in supporting the British food industry. First, there is the matter of securing agreement, including international agreement, on definitions. The noble Lord, Lords Krebs, has already mentioned this topic with his great expertise. There are those who seek to define nanoparticles simply in terms of their dimensions. Nanoparticles, they propose, should be defined as particles of which at least one dimension falls below an intrinsically arbitrary threshold of 100 nanometres. However, the reason why some nanoparticles are of interest to the food industry, as they are to other industries, is not simply that they are very small, intriguing as that may be, but that some, though not all, particles at nanoscale have functionally distinctive properties, so may offer nutritional or commercial advantages, though may also require additional risk assessment. Will the Government ensure that the regulatory definition of nanomaterials that must be built into the formulation of any requirements for additional risk assessment is functional and not merely metric? Will they work towards trying to ensure that EU regulation also settles on a functional and not a merely metric definition?
Secondly, there is the matter of ensuring that communication by companies to consumers is adequate. There has been a great deal of emphasis on communication by labelling. But I think that we all know that communication is genuine only where it is actually understood by the relevant audiences—in this case consumers. Transparency by itself is never enough. It is not enough because the fact that information is made available does not ensure that it will be noted, understood or taken into account by relevant audiences. Excessive reliance on consumer choice—when that choice is supposedly informed only by incomprehensible data delivered in the smallest print, on colourful packaging designed to emphasise other, more glorious matters—is not genuine communication. Only government can ensure that food marketing achieves genuine rather than pretended communication with consumers.
There are a number of important audiences for genuine communication in this area. There is the matter of ensuring that communication between companies about research at a precompetitive stage supports, rather than suppresses, the understanding of important information. There is the matter of ensuring that communication by food companies with the wider public is adequate. Possibly the most worrying finding of the sub-committee, alluded to by both previous speakers, is that food companies appear to be secretive about the research that they are conducting. They do not, as far as we could discover, have in place modes of exchanging information on precompetitive matters, and they do not foster public engagement.
The sub-committee was well aware that this secrecy may reflect awareness of the problems created just over a decade ago by a non-UK company when it trumpeted the advantages of its products incorporating the then new technology of genetic modification into plant varieties without adequate communication with, and in particular without listening to, the public. We all know the disaster that resulted for UK and EU plant-breeding companies. We all know that we now live in a bubble in which we pretend that the foods we eat contain nothing that is genetically modified—except of course by traditional methods such as evolution and selective breeding of animals and plants—although non-EU countries have adopted many of the genetically modified crop varieties without harm and to their advantage. But the way to avert another disaster for another British industry is not to be economical with communication about research on products that incorporate engineered particles at the nano scale. What will government do to seek better communication among companies and between companies and the wider public, with a view to fostering an effective and mature discussion of the real issues that need to be addressed if engineered particles at the nano scale are to be incorporated into our food?
Lord Crickhowell
My Lords, I, too, served on the sub-committee, which was admirably chaired by the noble Lord, Lord Krebs. His presentation of the sub-committee’s work was equally admirable, comprehensive and clear, and there is no need for me to do more than emphasise the importance of a small number of our recommendations. At the outset, I should express my appreciation of the contribution made by our Clerk, Anthony Willott, and our advisers, Professor Stephen Holgate and Rachel Newton. We could not have begun to do the job without their wonderful support.
This is the second debate within a couple of weeks on a report of a Select Committee where the Government’s response is that of the previous Government, not the coalition. I will press the points made by the noble Baroness who has just spoken about the need for the Minister, my noble friend who is to wind up this debate, to clarify by how far the present Government agree with their predecessors or indicate if there are significant differences.
I knew absolutely nothing about nanotechnologies until at a Royal Society soirée I visited a presentation on the subject by Cardiff University. When I introduced myself as the university’s former president, I was given some basic tuition and a rather magnificent rule that I am now holding, which helped clarify for me the scale of nanospace. On the left, I see metres, stretching through millimetres, micrometres, nanometres to picometres. As the noble Lord, Lord Krebs, indicated, there is also the atom, and I could add DNA somewhere in what is described as nanospace. I was also shown a picture of a well known Roman goblet which changes colour—an effect apparently caused by natural particles of nano size. In that way, I learnt that nanoparticles may not be the creation of brilliant or, as is sometimes implied, mad scientists, but can be a natural phenomenon. Quite early on in the committee’s study of the subject, we discovered that nanomaterials in food were not entirely a new event. Ricotta cheese has already been mentioned, as has the fact that chocolate and ice cream, as the result of the manufacturing process, usually contain nanomaterial.
However, scientists are now able to manipulate matter at the nano scale—a 1,000 millionth of a metre—so that it can exhibit new and unusual properties. This work may produce real benefits for consumers and manufacturers. We have heard some of them, such as better packaging, so food is fresher and lasts longer, and food with unaltered taste but lower fat, salt and sugar levels. Those are real possibilities. As the noble Lord, Lord Krebs, pointed out, there may be fertilisers that can be applied in smaller quantities—of real advantage to agriculture and the environment. The noble Lord explained that we decided to concentrate on food. Some of us were not entirely happy about this because health products, beauty products, sun creams and so on may all have similar consequences if misused. A number of the recommendations we make will need to be applied in due course to those kinds of materials.
Having accepted the potential benefits, I comment briefly on the possible risks and how we deal with them. We have heard that nanotechnologies may present new risks. They require risk assessment and regulation, and that is not an entirely straightforward process. Like many members of the committee, I was disturbed to hear of the limited amount of research looking at the toxicological impact of nanomaterials, particularly in the gut and, via the gut, into the bloodstream, nervous system and brain. Bluntly, we were not impressed by the evidence we received on the subject from the research councils. There are encouraging words in the previous Government’s response to our recommendations 5 and 6. The research councils’ sign-post notices have been issued, which apparently direct people in the right direction. A grant has been provided by NERC for work at the University of Birmingham. The research councils have carried out an independent evaluation of their nanoscience portfolio—I do not think it is a big portfolio so the evaluation cannot have taken them long. The Health Protection Agency has launched its National Nanotoxicology Research Centre at Chiltern and the Food Standards Agency has commissioned two projects. However, my understanding is that little additional research has been generated by these initiatives at this stage.
We need a clear statement from the Government about what is being done about proactive forms of funding for research and within the EU to ensure that member states effectively co-ordinate their research. My honourable friend David Willetts, giving evidence to the Science and Technology Committee earlier this afternoon, said that in British universities and research institutions there were a large number of small nanoprojects without any effective assessment of whether they added anything to the totality of research. We do not want something like that also happening in the European context, where it may well be that other countries are undertaking serious and valuable work on the subject.
Mention of the EU takes me to our recommendations 17 and 18, which have not been referred to in the debate, on the REACH regulations covering chemicals. I served on an earlier Lords committee on the introduction of REACH. The Government’s response recognises that some aspects of REACH were not designed with nanomaterials in mind. The committee was particularly concerned that the one-tonne threshold for considering the potential toxic effect of substances under the REACH regulations was not appropriate for nanomaterials. I do not get the impression that the necessary revisions are being pursued with adequate urgency. I welcome the fact that, alongside REACH registration, the previous Government announced that they intended to develop a scheme for the collection of information on both nanomaterials and products containing nanomaterials that are available in the UK. As this was described as a bottom-up approach, which I understand is exactly what the coalition Government favour in so many fields, I hope that the Minister will be able to confirm that that activity will be pursued by the new Government.
Finally, I say how strongly we felt—this has been said by other noble Lords—about the importance of the industry being open about what it is doing and positive in its communication with the public. The evidence that we received was depressing. Large firms that should have learnt lessons from the GM disaster, for a variety of reasons, seemed to be continuing down the route that led to the disaster. If they do not trust the public, the public will not trust them. The New Scientist, in May, contained a report that stated that a Unilever spokesperson,
“won't say what nanofoods Unilever is looking into. Two other food multinationals, Kraft and Nestle, declined to talk about their research in the area at all”.
Nothing seems to have changed.
My honourable friend David Willetts, the science Minister who gave evidence earlier today to the Science and Technology Committee, made an interesting observation in his recent speech delivered to the Royal Institution. He was not talking about nanotechnology but synthetic biology. He said:
“The UK Research Councils had the foresight to hold a public dialogue about ramifications of synthetic biology ahead of Craig Venter developing the first cell controlled by synthetic DNA. This dialogue showed that there is conditional public support for synthetic biology. There is great enthusiasm for the possibilities associated with this field, but also fears about controlling it and the potential for misuse”.
Those words could be applied exactly to nanotechnology and the evidence we received from Which? confirmed it. My honourable friend went on to say that he was struck by a comment from a participant in the discussion on synthetic biology who said:
“Why do they want to do it? … Is it because they will be the first person to do it? Is it because they just can't wait? What are they going to gain from it? … The fact that you can take something that’s natural and produce fuel, great—but what is the bad side of it? What else is it going to do?”.
My honourable friend continued:
“Synthetic biology must not go the way of GM. It must retain public trust”.
I would add that nanotechnology must not go the way of GM; it, too, must obtain public trust. I hope that that message will be listened to by those in industry in this country and indeed abroad. If nothing else is achieved by this report but they listen and become more open and transparent, then our work will certainly have been well worth while.
Lord Methuen
My Lords, I thank the noble Lord, Lord Krebs, for initiating this debate and for his excellent chairmanship of the sub-committee. I also thank our secretariat and special adviser for all they did to support us in producing the report.
It was a very interesting inquiry exploring a highly innovative area in which comparatively little research seems to have been carried out. There is a lot going on underground, one might say. We deliberately concentrated on the food industry, excluding areas such as cosmetics and skin protection products.
It was quite obvious that the commercial sensitivity of such research as is being carried out in this field by various firms in the food industry has stifled the exchange of data between the organisations involved. It is to be hoped that the Nanotechnology Knowledge Transfer Network and the Nanotechnology Industries Association will be able to encourage the interchange of such information, particularly in view of the many unknowns in the areas of toxicity and intestinal effects.
As has been said by other noble Lords, the use of nanotechnology in the food and drink industry offers all sorts of exciting possibilities in improving diet, reducing the intake of salt, sugar and other things of that nature, combating obesity, and finding better and longer-term storage options for food due to improved and perhaps intelligent food contact materials and packaging.
The previous Government’s response to our report was generally one of acceptance, and it is to be hoped that this new Administration will similarly accept our recommendations. I note that the Food Standards Agency has been reported as being disbanded but I hope that, as the earlier debate at Question Time indicated, that will not be so. If it is disbanded, I wonder what will happen to the excellent Food and Environment Research Agency near York that gave us so much useful information in its evidence.
One of the key problems in this field of nanotechnology is definition, as has been said by other speakers, and providing an adequate regulatory framework at both domestic and EU levels. The figure of 100 nanometres is often used but there is nothing magic about this number. The definition should be based on a combination of an order of magnitude of less than 1,000 nanometres and the reactivity of the material concerned. It was emphasised to us that the material may be “nano” in only one or more dimensions, depending on whether it is a film, a sheet—for example, food contact material—a particle or even a nanotube.
As I said earlier, the committee was particularly concerned about toxicity issues. I was pleased to note in the government response that both the EPSRC and the MRC are seeking research bids in this area and that the research councils have carried out an independent review of their nanoscience portfolio. One can only hope that the current funding cuts will not result in a diminution of the research effort that is required.
I am still concerned that not enough is known about the impact of nanoparticles in the gut, including the long-term consequences of their ingestion into the body, and on foetal growth. I am glad to see that the Health Protection Agency has launched a National Nanotoxicology Research Centre to undertake studies of what is absorbed through the gut. There needs to be co-ordination with EU initiatives across the whole breadth of this and the research council portfolio to ensure we do not duplicate work being carried out in other member states.
I am also concerned about the impacts on the human food chain due to the possible use of nanoparticles in agriculture, animal feedstuffs, and pesticides and herbicides. Obviously this is an area where Defra is probably more involved than the FSA.
One of the most important issues in front of the committee was the necessity of keeping the public aware of the advent of these developments in food production so as to avoid another publicity fiasco such as occurred with GM crops. There is at present a very low public perception and understanding of nanotechnology as applied to the food people eat. It is essential that manufacturers are open and transparent in the purpose of their research and development aims, and they must bring to the fore the benefits for the public that may be obtained by the use of this technology in food production, packaging and shelf life.
It has been an interesting debate and I hope the Government will be able to support the mostly positive response we had from the previous Administration.
Lord Hunt of Chesterton
My Lords, we should give thanks to the Science and Technology Sub-Committee on Nanotechnologies and Food and to its excellent chairman, the noble Lord, Lord Krebs, who was the most effective and communicative chairman of the Food Standards Agency in its founding. The committee clearly did a good job, as one can see from the previous Government’s response. However, in their response, and that of the current Government, one does not hear many promises about resources. We shall look to hear about that from the Minister.
As other noble Lords have mentioned, the natural world is full of small particles essential for the physical state of the atmosphere, the oceans and the processes in the Earth. But as with smoke, asbestos and traffic, human activities also produce particles ranging down to the scale of molecules and the wavelength of light. As the noble Lord, Lord Crickhowell, said, it is the tiny gold particles in red glass that make it look red—the thesis of my grandfather, by the way.
These nanoparticles are constrained within engineering processes and are more or less under control, but of course they are less constrained as they move through the environment and living tissue. Noble Lords might like to know that probably the first parliamentary study of nanotechnology took place on Clapham Common in 1760, when Benjamin Franklin took a party of six parliamentarians to study how an extremely thin monomolecular layer of oil can damp water waves. This interest was for calming waves in His Majesty’s dockyards at that time—everything was to do with His Majesty’s dockyards—but this continues to be a problem, as we have been seeing more recently.
The potential of nanoparticles is very considerable, from electronics to catalysts and, perhaps most importantly for the whole world, the extraordinary possibility of their use at a molecular or nano level for water purification and desalination. There are some groups working on this in the UK at Aberdeen, and MIT is involved. This is potentially an enormous boon to the poorest communities in the world. Broadly speaking, clean water might come under the category of food—it probably does for these people.
The other important point is for agriculture. Again, as the noble Lord, Lord Crickhowell, said, it is not just that we can use pesticides more efficiently—currently only 20 per cent get into the crop and 80 per cent go down the rivers—but this technology may be a big boon for agriculture.
However, the benefits of this technology have to be balanced with the health and environmental effects, both for the public and for workers. Some workers may have high exposure, and it is very important that this dimension is not forgotten. I notice that there was no actual evidence from the trade unions to this working group, but this is very important. Of course, exposure in industry is a lot better than it used to be. I have never been so drunk in my life as when I worked with ICI and we had trichloroethylene coming out of the plant as we filled up the bolts—one could get very drunk on that. But that is the older kind of industry; now we have much more sophisticated methods.
Public fears can easily be aroused, as we saw with GMOs and asbestos, but public attitudes are based on a delicate balance of perception of advantage and concern about risks. This balance can be influenced by public bodies and collaboration between the political world and scientists working together. Internationally, the UK has often been in the lead in these delicate areas of risk and advantage. The committee addressed all these issues and made sensible institutional and policy recommendations to deal with research, government regulations, industry and international co-operation. However, some of the recommendations have been made before, as we have seen in previous House of Lords reports on science-related issues.
The research on nanoscience and nanotechnology is done largely by industry, research councils, government departments and agencies—some of them using contractors or research institutes—and of course by the EU. This report, as we have seen previously, points to how research councils sponsor research but often, rightly, have limited capability and direction to respond to governmental, societal or industrial needs, as the noble Earl, Lord Selborne, emphasised. That is often not their central objective, which is generally fundamental and open science leading to publication.
In the 1990s, a larger proportion of the science budget was spent by government departments on projects that had direct relevance to policy, and this changed particularly under the emphasis of the noble Lord, Lord Sainsbury. As I know from experience of working on GMO dispersion for a government department, the results were then published. If the government department sponsors work, that does not then lead to non-publication. Although government agencies make use of research councils’ research and data, they cannot direct them, which is the point made in the committee’s report and by other noble Lords.
Another aspect concerns toxicological research and the fact that it needs to be directed—that is at paragraph 4.58. Another advantage of directed and politically sensitive research being funded and directed by government departments is that the public communication and consultation could be done professionally and with political understanding, which is important in this area. The recommendations in the report for public bodies need to be supported, and a positive role is needed to overcome the concerns of scientists who are very cautious. I talked to nanotech scientists, funded by research councils, before the debate, and learnt that they are extremely sensitive about commenting publicly in any way about the applications of their work. So if scientists are to avoid being involved in debacles such as we have seen with GMO and Climategate, they need to find some form and methods of working with government to ensure that they can stick to their fundamentals and publish openly, and that the more tricky, applied aspects are handled more by government and agencies which are familiar with that aspect.
That brings me back to the point that if government departments needed funding or the capacity to do that kind of work, they could apply the openly published science for their own purposes. However, there is a difference in the approach of the United States. There, government agencies fund applications to turn the openly published science into useful products. Remarkably, they will look all around the world for their science, including papers by JCR Hunt. As I know from experience, a government department there will say, “Goodness me, this is an interesting paper. Let’s fund somebody in America to set up a company and do something with it”. That does not happen in the UK. It must therefore be remembered that 90 per cent of the research is done outside the UK. It is not the job of research councils to review the research being done around the world—that should surely be the job of technically able groups in the government departments. The UK Technology Strategy Board has the same aim of developing UK technology, but it requires quite a large financial hurdle, often too large for smaller companies to work.
Another crucial institutional aspect referred to in the report is the co-ordination with research in the European Union. It is strong where there is very strong research, and the EU is leading globally on regulations. Also, EU research is working towards commercial projects and setting up new European-wide standards. Our concern, as has been expressed today, is that even our civil servants and a recent European Commissioner on these Benches have commented privately that the UK does less well than others in taking a strategic view of that EU research and driving research in the direction of the UK's interests in technology. That is essential. As new European programmes have been established for FP8, it is important that we should take a more strategic view. Of course, the research councils could help there.
The other point made is that there is concern that the work being done by our research councils is not co-ordinated with research being done in other national research councils in the rest of Europe. I used to be a chairman of a committee in NERC under the noble Lord, Lord Krebs, and I used to keep badgering colleagues in NERC to find out what was going on in exactly the same area in the other research councils. They did not know their names or their telephone numbers. A lot more can still be done in that respect. It is as if in the United States you had a research policy in California, in Arizona and in Illinois all doing different things and not co-ordinating. We must do better. The European Science Foundation has helped in that regard, but there is a long way to go and the committee has pointed that out.
We look forward to the Government's response. I particularly look forward to their response about public information. I note the comments made by other noble Lords about the fact that some major companies involved in the area are not particularly open. Without naming names, I spoke to the advertising agency for one of the major companies in this area. The advertising agency person told me that their advice to that major company was not under any circumstances to mention the environment or any of their products in that context. That is the situation, and we must move away from it.
Once again I thank the committee for its report, and I look forward to the Government's response.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an extremely useful debate. I congratulate the noble Lord, Lord Krebs, and his fellow committee members on their excellent report.
Nanotechnology is a fascinating new field of science. However, it can also be difficult for the lay person—I include myself in that category—to grasp its implications, given its potentially wide range of applications and the difficulty of visualising what it is and how it works. That makes the committee's achievement all the more impressive. It has sifted through a great deal of written and oral evidence to produce a readable and extremely interesting report—one that, I understand, has already been widely cited as a source of authority.
I followed with great interest all the contributions made during the debate, and I will return to some of the specific points raised in a few moments. Nanotechnologies and nanomaterials are clearly important issues for the Government. As I hope noble Lords will understand, we are still in the process of formulating our detailed policies in this area. As the House may know, the previous Government published a UK nanotechnologies strategy this March. Current Ministers, including me, will carefully consider the degree to which we will continue with that strategy. The report of the Science and Technology Committee makes a number of sound and sensible recommendations. For the reasons that I have just given, it would be premature for me to give a formal response on behalf of the Government on all of them. However, the majority of the recommendations fall within the remit of the Food Standards Agency, whose advice remains unchanged. Indeed, work is already under way within the agency to implement relevant recommendations. I shall say more about that in a moment.
My noble friend Lord Selborne speculated about the glittering prizes that may be attained in the future from this technology. The Government keep an open mind about the likely benefits of the use of nanotechnologies and nanomaterials in food. Proponents, as we have heard, point to a range of potential benefits such as improved packaging, better delivery of vitamins, lower-fat foods that have improved taste and texture, and reductions in food spoilage and food-borne disease. While all this sounds promising, the products themselves are very much at the research and development stage, and it remains to be seen how many will actually bear fruit commercially. However, many noble Lords have pointed out that what is clear, and what history tells us, is that unless consumers have full confidence in the safety of the end products, the benefits from innovation will be lost. This requires a combination of informed consumers and an appropriate, proportionate and fully transparent system of regulation.
The report addresses the need for better communication with the public about nanotechnologies in food. Members of the public rightly expect to have access to accurate and balanced information about issues that affect them and their families. This is particularly the case in relation to food, and the Food Standards Agency will work to ensure that information about nanotechnologies is made available in easily accessible ways.
The committee emphasised the importance of transparency. Of course the Government must play their part, but industry must also be open about the nanotechnology-enabled products that are being developed and used. The noble Lord, Lord Krebs, was absolutely right to point out that we know from previous experience with genetically modified foods that innovation cannot be forced on an unwilling or sceptical public. It is therefore in everyone’s interest to promote consumer confidence. This is particularly the case if, as some claim, nanotechnologies can help to tackle major challenges such as healthy eating and waste reduction.
The noble Lord, Lord Krebs, asked what the Government would do to ensure that the food industry is more transparent about its research on nanotechnologies, a question that was echoed by my noble friend Lord Selborne. The Food Standards Agency will work with industry and other stakeholders to ensure that as much information as possible is shared. That will be done, for example, by setting up a nanofoods stakeholder group and through a public list of products containing nanomaterials. Where I hesitate is over the committee’s recommendation of a mandatory reporting system for food products that are under development. As I have indicated, the Government have not agreed their detailed strategy on nanotechnology in general, or on the fine detail of the committee’s recommendations, but I could not but be struck by the arguments advanced by the Food Standards Agency in the previous Government’s response to the report: namely, that mandatory reporting could be counterproductive as it could well have the effect of driving research out of the UK, making it even more difficult to keep abreast of developments. There could be other and less dirigiste ways of achieving the committee’s aims in this area.
In answer to the direct question posed by the noble Lord, Lord Krebs, the noble Baroness, Lady O’Neill, and my noble friend Lord Methuen, I can only repeat what I said earlier in the day about the Food Standards Agency. A robust regulatory function will continue to be delivered through the agency. The Government fully recognise the important role that the agency plays, but we are examining whether some—I emphasise the word “some”—of the functions of the FSA could more sensibly and cost-effectively sit elsewhere. But again, as I indicated earlier, no decisions about that have been taken.
There is a need to co-ordinate and collect information, and I can tell my noble friend Lord Crickhowell that the Food Standards Agency is in the process of setting up a nanofoods stakeholder group, as recommended by the Select Committee, and will consult this group before establishing a register of foods that are currently being manufactured with the use of nanotechnologies later this year.
My noble friend asked about REACH. As far as I am aware, there is no further news to report. However, I will gladly ensure that he is kept informed of any developments.
Food products in the UK must meet the highest safety standards. As the committee concludes, different nanotechnologies raise different questions and so evaluation needs to be conducted on a case-by-case basis. For example, low fat mayonnaise made with a nanoemulsion of oil and water requires a different approach from insoluble nanoparticles of silver in a food supplement or embedded in food packaging.
The existing regulatory system for food ingredients provides a good level of control over new nanomaterials. The legislation will evolve, as it should, and I can say to the noble Lord, Lord Krebs, that the committee’s recommendations about clarifying the legal position of nanomaterials and drawing up appropriate definitions will be taken forward in the relevant fora in Brussels. The aim must be to provide clarity and safeguards against the introduction of new or altered food ingredients that have not undergone an independent safety assessment. This is important. In fact it has already happened in the area of food additives, and other revisions are under way in novel foods and food contact materials.
The noble Baroness, Lady O’ Neill, urged the Government to ensure that regulation should be based on functionality and not only on size. The point is well made and the Government will take it fully into account in our discussions in Brussels. In fact, recent changes to legislation on food additives are not tied to a particular size threshold but to changes in properties due to any change in particle size.
The committee’s report is one of several that highlight the gaps in our knowledge of nanomaterials. There is clearly a need to fill these gaps in order to assess and manage any potential risks effectively. We need to be able to ask the right questions and to draw the right conclusions from the data. The work that is currently under way, with funding from government departments and the research councils, will help to fill these gaps. In that context it is important to note that the various funding bodies do not operate in isolation but collaborate whenever possible. They also form part of a cross-government nanotechnologies research strategy group. This group has recently updated its list of research priorities, which will help to direct research funds in an effective way.
The noble Lord, Lord Krebs, asked specifically about the committee’s concerns relating to the proposed definition of engineered nanomaterial in the amended novel foods regulation proposal. I have touched on this already but I should add that the proposal for an updated EU regulation on novel foods is still under discussion. If a definition is adopted, then the Food Standards Agency will work with the Commission and other member states in monitoring and updating the definition to take account of technical advances and to reflect any international developments.
On the issue of risk assessment, the European Food Safety Authority is producing a guidance document for risk assessment of nanomaterials which will provide practical recommendations on how to assess applications made by industry for the use of engineered nanomaterials. This would apply to food additives, enzymes, flavourings, food contact materials, novel foods, food supplements, feed additives and pesticides. A first draft is due to be completed by July 2010 and will be subject to public consultation before it is finalised.
The noble Lord, Lord Krebs, mentioned that two products are known to be on the UK market. This was true in 2009 but I understand that one product became outlawed in January this year with changes to the law on food supplements.
My noble friends Lord Crickhowell and Lord Selborne questioned whether the research councils were sufficiently proactive in tackling the knowledge gaps in relation to the safety of nanomaterials. The relevant research councils have all taken measures to stimulate research into the safety of nanomaterials. A number of projects have been funded in recent years and these efforts are being intensified. For example, a programme on environmental exposures and human health has been launched jointly by the MRC and the Natural Environment Research Council working with the Department for Health and Defra. The programme specifically highlights nano-scale materials as an area of interest. It will fund four to six strategic collaborative consortiums to a value of £8 million to £10 million. The research proposals are currently under review and it is anticipated that the grants will be awarded in August 2010.
My noble friend Lord Selborne emphasised the importance of better research co-ordination to address gaps in knowledge and, as I have indicated, the cross-government research group has recently updated its priorities for nanotechnology research. A list of priorities was published after the committee report in March 2010 and provides a new focus for publicly funded research to fill the gaps that we fully acknowledge.
My noble friend Lord Crickhowell asked about progress on international collaboration of research. Government officials continue to work with the OECD programme on the safety of manufactured nanomaterials and I am informed that the underpinning research that has been commissioned with the help of the research councils is progressing well. At EU level the Technology Strategy Board is exploring further interactions with EU counterparts through involvement in a new research network focusing on the safe implementation of innovative nanotechnologies.
We have had a most valuable and constructive debate and I will take away the many points made. In conclusion, I emphasise the Government’s commitment to fostering a responsible attitude towards innovation and in creating the space for new developments, such as nanotechnologies, while ensuring the right level of regulatory oversight. Many have spoken of the importance of transparency. There is much that the Government can do to help the UK to benefit from innovation but none of this will matter if the public are not properly informed or are suspicious of the motives of those who seek to market new and innovative products. That underlines the critical role of transparency if the benefits of nanotechnology are to be realised. The Government, industry and the research community must all play their part.
Lord Krebs
My Lords, I thank the Minister for his response and other noble Lords who have taken part in this excellent debate. I do not propose to delay us for long but simply wish to note the positive response from the Minister, recognising that the coalition is still formulating its policy in certain areas. As it becomes clearer and the recommendations in our report are considered more extensively, I hope that I can remain in touch with the Minister and understand the full set of responses.
I note briefly a few points. I was very pleased to hear the Minister confirm a continuing role for the Food Standards Agency, that the regulatory issues that we addressed in Brussels are being taken forward, and that the activities of the research councils in commissioning research in this area seem to be moving ahead. The Minister also indicated the Government’s recognition of the importance of communication and he mentioned that the food industry sees its work at a very early R&D stage. In our opinion in the sub-committee, that was precisely the stage at which communication should start. If we wait until products are about to come on to the shelves it is too late. We are pleased to hear that the dialogue is being initiated under the aegis of the Food Standards Agency.
I thank noble Lords once again for contributions to the debate.