House of Lords
(12 years, 11 months ago)
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Phone Hacking
(12 years, 11 months ago)
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Lord Fowler
To ask Her Majesty’s Government what estimate they have made of the number of people affected by newspaper phone hacking.
The Minister of State, Home Office (Lord Henley)
My Lords, the number affected is being assessed as part of the current investigation by the Metropolitan Police Service. At this stage, no final estimate has been made, but the Met recently reported that it has contacted more than 1,800 people, of whom around 600 are identified as victims or potential victims of phone hacking.
Lord Fowler
My Lords, even that figure of course understates the true position. Is my noble friend aware that the Metropolitan Police itself has now said that it has identified the names of 5,800 people in the notebooks of a private investigator who for six years was employed by the News of the World to hack into mobile phones? Is there not now conclusive evidence that some journalists have perverted the traditional role of the press—to expose injustice and wrongdoing—by a total determination to expose private lives? What is needed now is an effective and, above all, independent means to ensure that such abuses never happen again.
Lord Henley
My Lords, my noble friend is right when he quotes the figure of 5,795 people who the police have said may—I stress, may—have had their phones hacked. The police stressed that at this stage they cannot give a figure, which is why I gave the other figure of 1,800 people who the police have identified as potential victims, and the 600 with whom they have been in contact. I note what my noble friend said about setting up some independent body as a result of these matters. At this stage, I cannot possibly comment and we must await the outcome of the inquiry by Lord Justice Leveson. When that happens, I am sure that we will act.
Lord Rosser
My Lords, when giving evidence recently to your Lordships’ Communications Committee inquiry on the future of investigative journalism, the Culture Secretary, Mr Jeremy Hunt, said that newspapers are likely to come under the auspices of a new regulatory body that is,
“better at enforcing standards of accuracy”,
than the Press Complaints Commission. Can the Minister confirm that this is now the policy of Her Majesty's Government?
Lord Henley
My Lords, my right honourable friend was giving his view correctly to that committee, but I am sure, as the noble Lord is aware, that we cannot make any firm decisions—and it would be wrong to do so—until the Leveson inquiry has concluded. That is what we will do at the appropriate time.
Lord Soley
Do the Government have any knowledge of any other newspapers being involved in phone hacking?
Lord Henley
My Lords, I do not, but if the noble Lord wishes to provide some information, I am sure that the Leveson inquiry would be grateful. Whether or not the noble Lord’s phone has been hacked, I cannot comment.
Baroness Bonham-Carter of Yarnbury
My Lords, does my noble friend not agree that the abuse has not just involved hacking? I sit on the Commons and Lords Joint Committee on Privacy and Injunctions and heard what Hugh Grant said yesterday about the behaviour of the paparazzi. Is it not wrong that, as Sienna Miller told the Leveson inquiry, 10 burly men can pursue a young woman down a dark alley spitting and hurling abuse at her with impunity because they are carrying cameras?
Lord Henley
My Lords, again my noble friend makes a very good point and was right to emphasise that this evidence was adduced to Lord Justice Leveson’s committee. No doubt he will consider that and, after that, the Government will—as I said earlier, and I repeat—consider any reports made by the inquiry, particularly where it seeks legislative changes by the Government.
Lord Mackenzie of Framwellgate
My Lords, given the emerging evidence of the employment of private investigators by the press involved in phone hacking, can the Minister give us an idea of when the Government intend to license such people?
Lord Henley
Again, my Lords, I would not want to take these matters further at this stage. I suspect that I shall repeat the same answer quite a few times during the course of this Question; we want to wait until Lord Justice Leveson has reported.
Baroness Trumpington
My Lords, the Minister has answered various points on numbers. How do people know if they are being hacked?
Lord Henley
My Lords, that is a technical problem on which I am afraid I cannot assist my noble friend. I am sure that many people throughout the country, and no doubt many Members of this House, think that they may have been hacked. If they think that they have, I suggest that they let the police know and ask them to make appropriate inquiries.
Lord Brooke of Alverthorpe
My Lords, is the noble Lord stating that the Government have no interest in what is happening with any other newspapers unless individuals produce evidence themselves?
Lord Henley
My Lords, that is nonsense. Of course we have an interest in these matters, but at this stage it is right and proper that the Government wait until Lord Justice Leveson has reported. In the mean time, if any noble Lords or others think that they are having problems and that there has been criminality, I suggest that they get in contact with the police.
Lord Martin of Springburn
My Lords, when the BBC acquires ex-directory phone numbers, does it have a responsibility to tell the subscribers of those numbers where it got the numbers from?
Lord Henley
My Lords, the noble Lord is going slightly beyond the Question on the Order Paper, but I shall certainly make inquiries for him and write in due course.
Lord Inglewood
My Lords, does the Minister not agree that the fact that the Government have set up the Leveson inquiry is proof positive that they recognise that the existing arrangements are inadequate for regulating the press and that something needs to be done to improve matters, the detail of which, as yet, is not clear?
Lord Henley
My Lords, as evinced by the number of questions that my noble friend Lord Fowler and others have asked in this House, as well as by questions asked in another place and concerns raised elsewhere, there has been considerable concern about the degree of phone hacking. Quite rightly, the Government responded to that concern and set up the inquiry by Lord Justice Leveson. They will respond in due course.
Lord Maxton
My Lords, Maxton is the name. Why are this Government quite happy, as is Parliament and as previous Governments have been, to regulate television, radio and even the internet but are not prepared to undertake the statutory regulation of the print media?
Lord Henley
My Lords, I repeat what I said earlier: we will consider the results of this report and make the appropriate response at that stage.
Lord Phillips of Sudbury
My Lords, does my noble friend accept the gravamen of the Justice report last month—a comprehensive report into hacking of all sorts—that this issue goes far, far wider than the press? Will the Government kindly consider reviewing the Regulation of Investigatory Powers Act to try to bring it up to date and make it effective?
Lord Henley
My Lords, I always take notice of any report produced by a body such as Justice, and we will always keep the operation of RIPA 2000 under review. However, again, that will be a matter to be dealt with at the conclusion of this inquiry.
EU: Repatriation of Powers
(12 years, 11 months ago)
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Lord Grenfell
To ask Her Majesty’s Government whether they have agreed a list of powers to be repatriated from the European Union, and, if so, when they expect to launch negotiations with the United Kingdom’s European partners.
Lord Wallace of Saltaire
My Lords, the Government are committed under the coalition agreement to examining the balance of competences between Britain and the EU. We have made no commitment to a particular outcome of this review. Work on the review has begun and is in its early stages.
Lord Grenfell
My Lords, I am relieved to read that the Prime Minister has recognised that Friday’s negotiations on a fiscal compact are not the occasion to try to repatriate any powers. That is good news, and it should at least save the Prime Minister from having another ASBO slapped on him by the President of France. The Prime Minister says that he wants to be constructive at these negotiations but that he will have some modest demands to make. Does the Minister agree that the chance to participate constructively in the negotiations being held among the 27 depends on them being among the 27, because that gives him a seat and a voice, whereas if negotiations were confined to the 17 eurozone members he would have neither? If the Prime Minister arrives in Brussels with a list of concessions which he wants granted as a price for his co-operation, there is a serious risk that the 17, tired of Britain’s repeated requests for special treatment, will simply close the door on the 10 outsiders and negotiate without them. What influence will he then have on the outcome?
Lord Wallace of Saltaire
My Lords, we are now facing a clear difference of timescale in the things under way. There is a real urgency about managing the eurozone crisis. That is a matter of weeks. Examining the balance of competences within the European Union is a much longer-term investigation, with which the British Government are engaged, and on which we expect to have plenty of allies among the other member states of the European Union.
Baroness Falkner of Margravine
My Lords, would my noble friend accept that, in a spirit of constructive engagement, the Prime Minister has made it very clear that he is not about to go to the European Council with a shopping list of powers to be repatriated, that the coalition agreement did not envisage that, that the coalition agreement envisaged only a review of the working time directive and that the repatriation of powers is not on the agenda here and now?
Lord Wallace of Saltaire
My Lords, we all recognise that Britain’s future economic prosperity depends on the eurozone not collapsing and that it is therefore very strongly in our interest to do everything we can to assist in the management of this current crisis. Britain’s priorities are: first, to maintain the integrity of the EU 27; secondly, to maintain and strengthen the single market; thirdly, to promote recovery and economic growth; fourthly, to defend specific British interests in financial services; fifthly, to ensure that social and employment legislation does not hold back growth; and also to rebalance competence away from detailed regulations on matters better left to national, regional or local government.
Lord Tomlinson
Many Members of the House will agree with the first five items on that list, but as far as the sixth item is concerned—the question of better balance—will the Minister recognise that at the moment his right honourable friend the Prime Minister, in trying to appease his Back Benches, is making it almost impossible to negotiate properly in Brussels?
Lord Wallace of Saltaire
My Lords, the problem of creeping competence has been there for some time. I remember a pamphlet published 10 years ago by a rather bright young man, whom my wife once taught, called Nick Clegg on doing less better. That is what many of us want to achieve in Brussels. We all know that the Commission sometimes wants to take powers over everything. I regretted that there was a report the other week from this House’s EU Committee on Commission proposals for closer co-operation on grass-roots sport. It seems to me that grass-roots sport ought to be left to the grass roots and that sport at the international level should be dealt with by the EU. That is a reasonable, long-term proposal. Liberal Democrats have held that view for a long time and continue to hold it, perhaps against the centralisers at the European level within the Labour Party. I see the noble Lord shaking his head.
Lord Hannay of Chiswick
My Lords, what would the Government’s response be if, in the intergovernmental conference about to meet, a member state other than Britain were to introduce a proposal for the repatriation of some portion of the single market?
Lord Wallace of Saltaire
My Lords, I am happy to say that that is extremely unlikely. We are some way off an intergovernmental conference. The German Government believe that we can have a very short IGC next March and hope that ratification of limited treaty change can then take place by the end of 2012. The position of Her Majesty's Government is that treaty change is not necessary, as we argued when ratifying the Lisbon treaty and again on the EU Bill. The Lisbon treaty has an enormous amount of headroom under which powers can be taken, and we think advantage should be taken of that, rather than getting into the messy, unavoidably uncertain and long process of treaty change.
Lord Liddle
Does the noble Lord agree with the article in the Financial Times this morning by the Conservative Member of Parliament, Jo Johnson, in which he says that the last thing the City of London needs to protect its interests is for the British Eurosceptics to plaster a union jack all over it? Does he agree that the best way to defend our vital national interests in Europe is to be in, engaging our partners, rather than out, shouting on the sidelines and demanding repatriation of powers?
Lord Wallace of Saltaire
My Lords, I entirely agree with the article, which I thought was excellent, and I am very happy that the chair of the relevant European Parliament committee on this is a British Liberal Democrat Member of the European Parliament, Sharon Bowles.
Lord Dykes
Would my noble friend agree that the only important repatriation of powers for the Government—because they need to be careful on this matter—would be to repatriate Bill Cash away from the chairmanship of the European Scrutiny Committee of the House of Commons? Would he further agree that with so many exclusions, derogations and exceptions already, not least on the single currency, we have gone far enough down that road and that we need to be a good European partner again?
Lord Wallace of Saltaire
My Lords, the Lisbon treaty envisaged that national parliaments should play a much more active part in scrutiny and indeed in insisting on the importance of subsidiarity and resisting overcentralisation. This House currently does it better than the other House. We very much hope that the House of Commons will also improve and extend its scrutiny of EU measures.
Lord Pearson of Rannoch
My Lords, given the requirement for unanimity among 27 nation states before a single comma can be retrieved from the treaties of Rome, is not all talk of repatriation a convenient red herring?
Lord Wallace of Saltaire
No. There is constant negotiation. The working time directive is currently under review, as the noble Lord will be aware. Sixteen member states, including Britain, currently have opt-outs. Twenty-three member states, not including Britain, are currently under contravention for not implementing the working time directive. There is therefore room for reconsideration.
Health: Oral Cancer Detection
(12 years, 11 months ago)
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Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they will make representations to the General Dental Council to raise the priority accorded to oral cancer detection and for its inclusion as a recommended topic in the list of subjects for continuing professional development.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, yes, the department will be raising this issue with the General Dental Council. I understand that the General Dental Council is currently at the early stages of reviewing its continuing professional development requirements for registrants and plans to hold a formal public consultation on its draft proposals, probably in the first half of 2012.
Baroness Gardner of Parkes
That is a very helpful Answer because the profession wants to see that. As the Minister knows, I have encouraged the continuous inspection of people’s mouths whenever they present for some other cause. The really important thing is that when they are referred up, the person seeing that patient knows what the position is. In view of the report last week about the vast increase in hepatitis among young people due to alcohol, will the Minister comment on whether he thinks there is a parallel with our 2009 debate, when that was raised as a factor in the great increase in mouth cancer among young people?
Earl Howe
My noble friend is quite right that the worrying feature of oral cancer is that it is increasingly appearing in the young. The risk factors that have been identified for oral cancer are primarily smoking and consumption of alcohol, but particularly the two combined. It is important that we get to grips with this. A number of public health campaigns are in train, certainly on smoking, and our alcohol strategy is due out very shortly, which will also address drinking among the young.
Baroness Masham of Ilton
My Lords, does the Minister think that HPV and HIV can be first detected in the mouth by dentists, and does he not think that dentists should have more training?
Earl Howe
My Lords, my understanding is that HIV needs to be fairly far advanced before it manifests itself in the mouth. However, the noble Baroness is absolutely right with regard to HPV—human papilloma virus—because since 2009 there has been further research suggesting a link between HPV and oral cancer. There is now a sufficient evidence base to suggest that infection with HPV is a risk factor, particularly for the soft tissues at the back of the mouth. Her point about dentists picking this up is very well made. My understanding is that dentists are very much on the lookout for these symptoms.
Lord Sharkey
My Lords, according to Macmillan Cancer Support, mean survival times for cancers of the stomach, oesophagus, pancreas, brain and lung have barely increased in the last 40 years. These cancers account for 39 per cent of all cancer deaths, but attract only 13 per cent of all cancer research funding. Does the Minister think this is a satisfactory balance and, if not, can he tell us how the Government might be able to help remedy the situation?
Earl Howe
My Lords, I agree with my noble friend that it is not satisfactory. However, the position with research funding from government sources is that proposals are evaluated on the basis of merit; there is no predisposition to any particular kind of research as long as it is high quality. Both the MRC and my department, with the National Institute for Health Research, are open to proposals of high quality to address unmet areas of research.
Baroness Thornton
My Lords, I congratulate the noble Baroness, Lady Gardner of Parkes, because I answered Questions that she asked on this issue in my time. She has shown great persistence and no small amount of success in pushing this issue along. I would like to ask the Minister a question about smoking, because, as he rightly says, smoking is a factor in the incidence of mouth cancer. In the public awareness campaign about tobacco and tobacco regulations, are the Government including the implications of mouth cancer?
Earl Howe
Yes, we are continuing to invest in tobacco control activities. The noble Baroness will know that in March, we published our tobacco control plan for England, which sets out a range of action points. We are running marketing communications campaigns, with a campaign currently on television. In the new year, we will be making Quit Kits available through pharmacies across England; in the spring, we will run a campaign to highlight the risks of exposure to second-hand smoke and to encourage smokers to make their homes and family cars smoke-free.
The Earl of Selborne
Will the Minister tell us whether the tobacco industry is giving full support to this campaign?
Energy: Tariffs
(12 years, 11 months ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government what action they will take to ensure that all energy companies provide a straightforward and easily understood tariff structure for customers, in the light of the report by Ofgem published on 1 December.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, the Government welcome proposals published last week for consultation by Ofgem to simplify tariffs and billing information. The proposals should make it much easier for consumers to understand and compare tariffs. It is for Ofgem, as the independent regulator, to take forward the proposals.
Baroness Smith of Basildon
My Lords, some things work better in principle than in practice. Is the Minister aware that Ofgem admits that its proposals to do the very things he just outlined may not be implemented until after winter 2012, and even then, only if the industry fully gets behind the changes? Given that the Daily Telegraph today reports that energy company profits are higher now than at any time since privatisation, and have risen by 40 per cent in the last three months alone, are the Government ever going to do anything to tackle this problem and help customers?
Lord Marland
The Government are going to do a lot to help customers. Ofgem’s proposals to simplify bills and make them transparent are ground-breaking—particularly the proposals to have standing order charges on the bill and set by Ofgem. Make no mistake: the Government’s entire policy is based on what is to the benefit of the consumer. That is at the heart of every decision we make. In the consultation process, this Government will be talking through the proposals with Ofgem. It is not surprising that they will not be implemented until 2012 because they are under consultation. Until the consultation is over, and Ofgem has had reports from the electricity companies, we will not be able to see the final outcome.
Lord Teverson
My Lords, does the Minister agree that the Government’s plan to roll out smart meters over a five-year period from 2014, rather than have the current dumb ones, is the real way to give consumers control over their energy charges? Should smart meters not automatically be able to tell consumers the best tariff?
Lord Marland
I totally agree with my noble friend. We intend to start rolling out smart meters in 2014. Our department is spending nearly £40 million on the development of smart meters, which will be state of the art. By 2019, every home should have a smart meter that should provide this vital information for people to be able to compare the tariffs.
Lord Campbell-Savours
My Lords, how are we getting on with proposals for a rising block tariff system of energy prices whereby low volume consumers of power pay a lower price per unit than high volume users of power?
Lord Marland
I am grateful to the noble Lord for explaining high block tariffs. Clearly, it is an issue which finds favour with both sides of the House and I have noble friends on this side who are very keen to see this happen. We have facilitated consultation with Professor Hills, for example, on this subject, so that he can take it into account in the fuel poverty review he is carrying out at the moment. It is something of great consideration. The noble Lord has a long history in raising this point and I am grateful to him.
The Lord Bishop of Chester
My Lords, in the interests of the transparency to which the Minister has referred, will the Government ensure that on their bills to consumers, all energy companies include an accurate list of all the costs of government obligations—for example, under the renewables obligation?
Lord Marland
It is not for the Government to insist on what is on the energy bills. It is up to Ofgem to insist on that, which is why it is bringing in this consultative period during which it can review what is on such bills. I am sure that Ofgem will be extremely pleased to hear from the right reverend Prelate on this very constructive suggestion.
Lord Faulkner of Worcester
Will the Minister encourage the energy companies to desist from making unwanted, unsolicited and deeply irritating calls to householders attempting to entice them to change supplier and suggest instead that they should concentrate on improving their services?
Lord Marland
It is an area of grave concern, which I share completely with the noble Lord. It is particularly important when we look at things such as the Green Deal groundbreaking legislation that we are bringing in to ensure that the consumer is protected against mis-selling and is not taken advantage of in overselling. We shall look carefully with Ofgem at that.
Lord Stoddart of Swindon
Will the noble Lord tell this House exactly how much bills are increased by government action on their green energy plan? Will he also confirm or deny reports that have appeared in the press that the Energy Secretary wishes to build 32,000 more wind turbines? Does he realise that if that is achieved, it will provide 64,000 megawatts of power, which is equivalent to rather more than the present capacity of the electricity industry?
Lord Marland
I do not think that my colleague, the Energy Secretary, is in for building wind turbines yet. Clearly, there is a framework for doing so. It will not be a decision made by him: it will be for communities to decide whether they want to have onshore wind in their community. But it is part of the Government’s policy that we should continue to have them. That I think answers the second question.
On the first question, this Government are committed to green energy policies. It is part of our endeavour to have security of supply, which we had in the good old days of oil on tap but do not have any more. It is very difficult to compare what the price of green energy would be against the cost of the increased oil price which we no longer have.
Lord Grantchester
My Lords, is this not a matter of such urgency that it should not wait until 2012? With this winter seeing the highest fuel and energy prices, and given the increasing levels of fuel poverty identified by Professor Hills, could not the Government look at the level of cuts they are now imposing on winter fuel payments?
Lord Marland
I do not think the Government are making cuts in payments to the vulnerable, which I think is the general tenor of the noble Lord’s question. Let us be fair. We have the warm home discounts worth £120 which go to 600,000 homes; we have Warm Front which is still at around £100 million; we have winter fuel payments worth around £100 for those of retirement age, and if you are 80, it is £200; we have cold weather payments worth £25; and we have CERT worth £5 billion. This Government, and in fairness the previous Government, have taken a real and consistent approach to the vulnerable to ensure that through these difficult and cold winters, everything that can be done to support people is done. I think that that is a great credit to both Governments.
Renewable Transport Fuel Obligations (Amendment) Order 2011
(12 years, 11 months ago)
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Earl Attlee
That the draft order laid before the House on 14 November be approved.
Relevant documents: 33rd Report from the Joint Committee on Statutory Instruments, 44th Report from the Merits Committee, considered in Grand Committee on 5 December.
Earl Attlee
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Lord Bradshaw
My Lords, before the Motion is put to the House, I should like to draw to the attention of the House the fact that the report of the Merits Committee on this order was published last Thursday. Nine noble Lords then debated the order yesterday in the Moses Room so we all expected that some notice would be taken. This morning the order appeared on the Order Paper and so there has been no opportunity to consider what was said in the Moses Room. This does not reflect well on the House or show that the Government really value the opinions of Peers before they place matters on the Order Paper.
Lord Palmer
My Lords, I should like to echo the words of the noble Lord, Lord Bradshaw. Surely it must be an insult to those of us who spent 90 minutes yesterday in the Moses Room in that the noble Earl agreed to come back to several of us on many major points at issue on this extremely complex subject. Now, less than 24 hours later, we are being asked on the Floor of the House to agree to the order.
Lord Davies of Oldham
My Lords, the Minister had a difficult time with this order yesterday, not least because, as the noble Lord, Lord Bradshaw, indicated, the Merits Committee took a rather dim view of its inadequacies. Her Majesty’s Opposition think that this order should go through because of the real urgency of the position for the industry. But what I sought to point out yesterday, and what other noble Lords pointed out more forcefully than I did, were the inadequacies of the instrument. I am certainly of the view that we should let it go through today but I hope that the Minister will take on board the fact that the criticisms yesterday were serious ones and that we expected the Government to have taken a more definitive position on the issue so as to reassure the industry in circumstances where underinvestment in this very important sector is occurring because of a complete lack of confidence in government policy. The Minister should therefore not be surprised that he is being pressed further today, as indeed he was yesterday.
Viscount Eccles
My Lords, I do not often find myself in agreement with the noble Lord, Lord Davies of Oldham, but on this occasion he is about 110 per cent right.
Earl Attlee
My Lords, I accept the thrust of what noble Lords are saying. Regrettably this order is on a very tight timescale for a variety of reasons. I would like to make it clear that I very much value what noble Lords are saying. Yesterday, in Grand Committee, the noble Lord, Lord Davies of Oldham, said, at col. GC 160 of the Official Report, that the Opposition support the measure “inadequate” though it is. By using the word “inadequate”, I take it that he meant that the order deals only with sustainability and not the trajectory of biofuel take-up. I did of course deal with that point yesterday, and was very happy to do so.
With regard to the issue of used cooking oil, I recently answered an Oral Question on that and I agreed to write on a number of points. I am not known for speaking at length, but I spent 23 minutes responding to the debate yesterday despite the pleading looks from my noble friend Lady Verma. Relevant letters are nearly ready despite their complexities. My expectation is that I will send out all the letters strictly relevant to the order by the end of the week at the latest and some may well be sent tomorrow. I accept that the timescale is tight, but I think it is better to agree the Motion now rather than go right up to the wire later. I beg to move.
Protection of Freedoms Bill
(12 years, 11 months ago)
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Baroness Heyhoe Flint
Baroness Heyhoe Flint
My Lords, I am glad to have the opportunity to build on the comments I made during Second Reading, which highlighted the efforts made by sports bodies to provide the safest possible environment for young people to enjoy sporting activity. As I said at Second Reading, the sport and recreation sector has voiced the concern that many individuals who have regular and close contact with children will not be regulated due to their being supervised by regulated individuals.
The Bill’s criterion of “supervision” is considered by many to be a concern in relation to sport. The amendment aims to rectify this by being an exception for sport and recreational activities, thereby allowing the governing bodies to manage their risks as they deem appropriate in the context of their own activity. Sport and recreation are delivered in a wide range of environments—in sports halls, swimming pools, football pitches, on a river or, if one is so disposed, even on the side of a mountain. These are all situations in which governing bodies have to protect their young participants, yet within all these environments the nature of interaction between participants differs greatly, as does the nature of supervision.
At present governing bodies are trusted to make their own assessments of risk and implement safeguards accordingly. I think that this is a balance they currently get right. In fact, the spirit of this amendment is consistent with the position adopted by the Government. From conversations with various governing bodies, not least the England and Wales Cricket Board, of which I am a board member, it is clear that they are both willing and able to continue to take responsibility as the Minister has described. The sentiment is also expressed in the amendment tabled by my noble friend Lady Walmsley, which I also support.
There is a second and more pressing point to make on the subject of supervision in the Bill, which is that it contradicts the experience of the sports governing bodies to assume that the danger presented by an individual correlates with the degree to which they are supervised. The individuals that we seek to protect against are manipulative and calculating. They will undoubtedly seek to occupy those roles which are unregulated, and we must therefore ensure that the scope of regulated activity captures everyone who has the ability to develop a relationship of trust with a child. Therefore, I would welcome comments from the Minister about what the “supervision” criterion means for sport in practice, and I would welcome the Government’s commitment to provide guidance on this issue. Sport and recreation organisations believe that an individual who has the ability to develop a relationship of trust with a child should be regulated, regardless of supervision.
Baroness Royall of Blaisdon
My Lords, I shall speak to Amendments 59, 63A—which is on the Marshalled List but was not included on the list of groupings—60, 64 and 65. I support the noble Baroness, Lady Heyhoe Flint, and the amendment from the noble Baroness, Lady Walmsley. However, I do not think that they go far enough and I am looking for a more comprehensive approach to the problem we have before us today. In relation to Amendment 61, tabled by the noble Baroness, Lady Heyhoe Flint, I ask the Minister how he would define “recreational”. I wonder if the word would encompass all after-school clubs, youth clubs et cetera. I need further clarification on the definition. Amendments 59 and 63A reverse government provisions to admit supervised volunteers and supervised employees in places other than schools, children’s homes or children’s centres from the scope of regulated activity. Amendments 60, 64 and 65 would tighten the statutory definition of supervision from “day to day” to “close and constant”.
On entering government in 2010, the coalition announced that it would suspend the rollout of vetting provisions under the Safeguarding Vulnerable Groups Act 2006 and undertake a review of vetting and barring procedures, with the aim of restoring common-sense levels of safeguarding. This was despite the implementation of key recommendations from the Singleton report by the previous Government, which would have reduced the total number of individuals required to register with the vetting scheme by almost 2 million. The upshot of the review is that regulated activity will no longer include supervised volunteers or employees. This will, we believe, have serious implications for the safety of vulnerable groups. The key arguments put forward by the Government’s review into the vetting and barring scheme are that the requirement for CRB checks deters volunteers and creates additional layers of bureaucracy for organisations. Of course, we welcome the introduction of an electronic portable system so that individuals will no longer have to apply for new checks each time they move jobs. However, the Government’s criticisms of the scope of CRB regulations are not an accurate reflection of attitudes towards CRB checks in general.
Representations from the Sport and Recreation Alliance described safeguarding requirements under the 2006 Act as “welcome burdens”. Girlguiding UK, of which I am proud to be a member, says:
“We would like to reiterate that in our experience the requirement to undergo a CRB check, along with Girlguiding UK’s own stringent checks to ensure the protection of the girls and young women in our care, does not deter potential volunteers”.
The Government’s other principal argument is that overreliance on the state to certify safety of employees leads to complacency among employers on safety and a perception that it is solely the responsibility of the state to ensure safety. However, we do not believe that that conjecture is supported by the evidence. Of course, CRB and ISA checks are not the be-all and end-all of child protection and neither is that borne out by the attitudes of the industry, with many organisations having developed their own independent standards of best practice on child safety. For instance, 76 per cent of the England and Wales Cricket Board’s local clubs either have or are working towards independent child protection accreditation. The view from children’s charities and voluntary sector organisations such as the Sport and Recreation Alliance is clear. For example, the NSPCC says that a new definition of regulated activity excludes many people who have regular and close contact with children. This creates a risk that unsuitable individuals may gain and exploit positions of trust, and there are numerous other organisations that feel similarly. For example, Fair Play for Children has stated:
“We believe that this Bill ignores entirely the major issue of secondary access”.
I could cite many case studies, but one example is from 1998, when Barry Bennell, aged 44, was jailed for nine years for the serial abuse of young boys from 1978 to 1992, when he was the scout for north-west and Midlands junior football teams. For over a decade, he used his position to invite boys to stay with him at his home and take teams on tour, where he sexually abused them. Critically, the issue was not whether he was supervised in the workplace but that without proper checks he was able to establish a trusted position and gain unsupervised access to vulnerable adults. The Government’s changes to the scope of regulated activity take a clear system and open it up to discretion and abuse, admittedly by a small minority, but nevertheless by predatory individuals.
In relation to Amendments 60, 64 and 65, our view is that the Government should scrap altogether their proposed distinction between supervised and unsupervised work with children and vulnerable adults. However, if the Government are not prepared to move on this, we would probe the Minister’s opinion on a consensus position which would at the very least tighten the statutory definition of “supervised” better to capture the sort of roles that we feel should be included in regulated activity. On Report in another place, the Government conceded that greater clarification was needed and agreed to publish draft guidance on the definition of supervision, as the noble Baroness said. We welcome that step and ask the Minister whether he agrees to publish that draft guidance before the end of the Committee. However, like many voluntary organisations, we are concerned that the issue of guidance still leaves too much room for discretion and that, while the best organisations will continue to co-operate with the highest standards of protection, others with fewer resources will shrink back to the legal minimum.
I wish to place on record the fact that although we wish to ensure that the scope of regulated activity is not restricted, we absolutely do not wish to discourage sporting and other organisations from employing those who have previously been in prison or who have been young offenders—that is, those people who do not have a history of violence or sexual abuse. I say this because yesterday, together with other noble Lords, I met with User Voice, a charity led and delivered by young offenders. Some of those young offenders who have not offended for three, four or five years now wish to give something back to society and have been working with young potential offenders to deter them from offending, because as offenders they have been through exactly the same process. They said that they found it very difficult to find work or recreational activity in sporting clubs, precisely because they have a record. Those young people have turned around their lives and it is important that, in ensuring that people are properly checked, we do not deter sporting organisations and others from employing those who have turned the corner and, as I say, wish to deter other young people from following in the steps that they have already trod.
Lord Bichard
My Lords, as chairman of the Soham inquiry there are perhaps some who think that I was the instigator of the arrangements in place for child protection, which this legislation seeks to change, and that I would therefore inevitably be opposed to these proposals. In fact, if your Lordships looked at the Soham report, you would see that I was looking for proportionate arrangements. I believe that, in some respects, the arrangements that were subsequently introduced were disproportionate and I am not therefore in principle opposed to some amendments. I want to make it clear that I will be looking carefully at the proposed legislation when it leaves Committee to see whether the new proposals are, in my view, proportionate. If I do not think that they are, I will want to move some amendments on Report.
However, it is right to say at this point that I have particular concerns about the issue of supervision. As has already been said, we are dealing on occasions here with people who are extremely manipulative. I seriously doubt whether any form of supervision will prevent the likes of Ian Huntley from perpetrating their evil. As someone who has led and managed many organisations, of course, I am also aware that the quality of any supervision is extremely variable but I believe that it is difficult to supervise the likes of Huntley to the point where we can be satisfied that they will not work their evil. It is particularly regrettable to use words such as “day to day supervision”; I have no idea what that means. I can begin to understand “close and constant”, which is suggested in Amendment 60, but I have serious doubts whether any supervision can be close or constant enough to satisfy my requirements.
The Lord Bishop of Newcastle
My Lords, I have anxieties about this concept of supervision because the Bill does not actually define what that means. As I understand it, the definition is to be left to employers, although guidance is planned. But the Bill and these proposed amendments do not quite recognise some of the challenges that we face in a church environment. Just imagine a youth club worker, for example, who may well be supervised during a formal session but who may well have other, unsupervised contact with children and young people at other church activities, thus leaving plenty of opportunity to develop inappropriate relationships and, indeed, to groom children. It should also be recognised that those who are being supervised can still develop relationships with children who could be exploited. The limitations on regulated activity, based on this rather nebulous concept of supervision, seem to leave a great big gaping hole in the Bill.
Lord Addington
My Lords, I support my noble friend. I believe that this is the first amendment that she has moved in this House, and I congratulate her on that. The idea for Amendment 62, which stands in my name, was taken from sport. As my noble friend has stated, it is very difficult to decide who is actually in charge of a particular part of a sporting activity when it comes to training. In certain sports—Rugby Union is a good example—the sub-coach may be in charge of a session that deals with an aspect of the activity. This is the driving force behind the amendment. The noble Baroness, Lady Royall, has pointed out that the Bill goes much wider, and I look forward to clarification from the Minister.
The importance of the amendment is that it points out that in a very big sector—sport is one of the most important sectors for volunteers and one of the biggest individual volunteering sectors—you do not really know, when you are taking part in this structure of coaching, exactly who is in charge at any time. People will be taken away for specific coaching—strength, speed, endurance or technical—and will be out of the supervision and control of the overall body and will be undertaking something that the overall coach may not be able to understand; that may be why they are there.
We have to get to a position where everyone with that degree of power and control has had a full check. That is really all that this is about. I do not criticise the main principle in the Bill, but the fact is that certain people will be removed from a position of power by having someone else in charge of the session, and that should not be the case. For certain types of athlete, a certain type of coach will be in a position of power and control and will dominate bits of their lives, and we have plenty of examples where that has gone horribly wrong and there has been an abuse of trust.
I hope that my noble friend will be able to tell us that our interpretation of what he is saying is wrong, and that the extension of this and other types of activity will be caught by the Bill. If not, we will have to change it, but I hope he will be able to give us some assurances that we are worrying unduly and give us examples of why that is the case.
Baroness Walmsley
My Lords, I have two amendments in this group, Amendments 63 and 66. Amendment 63 would provide a level playing field between schools and colleges in relation to the information that they receive to help them with safe recruitment. The effect of the Bill as it stands is that colleges will no longer be able to access barring information about any newly appointed non-teaching staff, whereas schools will still continue to be able to receive this information.
All children should be given the same protection under the law wherever they study, and therefore all educational institutions should have identical access to criminal records and barring information. The current proposal places further education colleges on the same basis as leisure centres or places of worship, which children attend only occasionally, rather than in the same category as schools, which, like colleges, children attend on a daily basis and where they meet the same staff, both teaching and non-teaching, day in and day out.
This is not a minor matter affecting small numbers of young people. There are nearly 900,000 16 to 18 year-olds studying in colleges, about double the number of the same group attending sixth-forms. This number will rise when the participation age goes up to 17 and then to 18. There are also 63,000 14 to 16 year-olds who spend at least one day per week in a college, and that number is likely to increase following implementation of the recommendations of Professor Alison Wolf.
Colleges are clear that they want the ability to check that the staff they employ do not pose a risk to their students aged under 18. All staff in educational establishments are seen by children as trusted adults. Colleges want to maintain a safe recruitment procedure. The key to this is to ensure that they are able to make informed decisions regarding the suitability of applicants by continuing to receive barring information in addition to the criminal record check. This amendment would remove the anomalous differences between schools and colleges in respect of young people of exactly the same age group. It surely must not be the Government’s intention that a 14 year-old should have the full protection of the vetting and barring system from Monday to Thursday when she is at school and not have such protection on Friday when she goes to college.
The idea for Amendment 66, which is in my name, came to me during a meeting with my noble friend the Minister and my honourable friend Lynne Featherstone, the Minister at the Home Office, for which I am grateful. I am also grateful to the Public Bill Office for assisting me with the wording of the amendment. Lynne Featherstone made it clear that she wants organisations that use volunteers to work with young people to take responsibility for their recruiting practices and not rely entirely on CRB checks. I quite agree, but that is exactly what the sports organisations that were at the meeting do all the time. Indeed, their presence at the meeting was a clear indication of their conscientious care for the safeguarding of the young people engaging in their sport. They conduct their own risk assessments every day on everyone who comes into contact with the children taking part.
However, these organisations, as we have heard, are very concerned about the wholesale removal of many potential volunteers from the scope of regulated activity. They and I are concerned about what is called secondary access. We recognise that much of the abuse does not take place during the activity itself but elsewhere or on another occasion when the abuser takes advantage of the relationship of trust that he has been able to build up with the child during the activity, even where it has been closely supervised. They and I are also very doubtful as to whether any official guidance, however carefully crafted, can adequately identify the level of day-to-day supervision necessary to ensure protection and roles in which the adult cannot build up this relationship of trust.
These organisations are also concerned that although a registered body can ask for an enhanced CRB check on someone in an unregulated role, they cannot get information on whether that person is barred or not. A person can be barred on the basis of important and significant information other than by involvement with the police. Unless the information is known to the police, the organisation taking them on as a volunteer cannot get hold of it and may unwittingly take on someone who is barred and absolutely unsuitable in an unregulated role.
I think I have the solution to this problem. The people best placed to specify which roles within their organisations would give an adult the opportunity to build up that relationship of trust are the management of the organisations themselves. That is what my amendment says. It perhaps picks up the concerns expressed by the noble Lord, Lord Bichard, about the difficulty of specifying the level of supervision required. These organisations understand the situation on the ground much better than any civil servant sitting in the department writing guidance.
This amendment does exactly what the Government have said they want organisations to do. This is what it says in a document on frequently asked questions that was recently circulated by the Minister:
“The purpose of the change to the scope of regulated activity is two-fold. Firstly, it is to provide greater flexibility to employers and to organisations in using volunteers and staff who are supervised by not requiring them to carry out the checks that apply to regulated activity, but for such employers to have some flexibility in determining the level of vetting that they decide is appropriate in relation to any work. Secondly, it is to place the responsibility for safeguarding children sensibly with those who are directly responsible for the provision of services to children and to encourage them to have in place proper supervision and other safeguards”.
With that in mind, and bearing in mind similar statements made by the Minister in another place, I am very optimistic that my noble friend the Minister will accept my amendment, since this responsibility, which the Government require in the hands of the registered bodies, should be placed in the Bill.
Baroness Grey-Thompson
My Lords, I support the amendment, which was very comprehensively moved by the noble Baroness, Lady Heyhoe Flint, and supported by the noble Lord, Lord Addington. I declare an interest as a board member of UK Athletics and the London Marathon and a trustee for the Laureus Sport for Good Foundation. I believe that the definitions are incredibly important. I, too, would like to have some greater understanding of what the supervisory role comprises. In the course of my research I spoke to my own governing body, UK Athletics. It has no evidence whatever to suggest that criminal record checks put off any coaches from being involved in sport. While I accept that the CRB does not solve every problem that we might have in sport, in the early years of CRB checks UK Athletics received many complaints every week, but in the past 12 months it has not received a single complaint about the CRB process. My concern is with the grooming process. Coaches are in an incredibly powerful position. They instruct young people not just on the training programmes but on how they dress, behave and where they go. They are in charge of whether the young people are selected for the team. That might be a club team but it can get people on the path to competing at a higher level.
In recent years, two cases within my own sport have become known to the public. A 77 year-old coach was barred from working with athletes for 15 months. He had been exposed by a local newspaper but was back in a club working in a supervisory role. The danger of coaches coming back into sport after such incidents poses too great a risk to young people. Further, a 43 year-old coach abused a 14 year-old girl. Neither of these incidents took place at a club or training ground but in the coaches’ own homes. The parents of the young people involved trusted the coaches. The latter case came to light when the girl at the age of 15 reportedly ended the affair. The coach in question was sentenced to 17 years in prison. That goes to show how powerful the relationship is between a coach and young person and how easy it is for some people to groom young athletes, whether that process takes place over weeks, months or years.
There have been three very high profile cases in the US. The most recent occurred last week at Pennsylvania State University, where an assistant coach who had been abusing young boys over a number of years was exposed. Although the matter had been reported to the head coach—he has since lost his job because of this matter—and at higher levels in the university, no action was taken. It is easy to say that different circumstances apply in that case as it occurred in a different country within a university system. However, it highlights the power wielded by assistant coaches, head coaches and all coaches over the individuals with whom they work.
I understand that we need to protect the 92 per cent of people who have no CRB record and we have to make the process easier if we are to encourage people to come into sport. I encourage portability and I would never want to stop somebody coaching who may have made a mistake in the past or those whose past actions would have no effect on the children with whom they are working. The noble Lord, Lord Bichard, is absolutely right: proportionality is very important. However, governing bodies understand the nuances of clubs, coaches and volunteer structures and how they work. We could be making a big mistake by going too much the other way and exposing children and vulnerable adults to some very unsavoury individuals.
Baroness Randerson
My Lords, I rise to speak specifically to Amendment 63, which was introduced by my noble friend Lady Walmsley. I was a further education lecturer for more than 20 years and so I have some residual understanding of the relationship between further education lecturers and their students. We are not talking just about 16 to 18 year-olds. As my noble friend made clear, increasing numbers of 14 to 16 year-olds are spending at least part of their week in our further education colleges. That trend has grown considerably over the years, particularly in the past few years. We need to look at why the trend has grown. First, there has been a recognition by both the previous and current Governments that for many 14 year-olds school is no longer the most suitable environment. They do not respond well to school. Secondly, there is the Government's desire to raise the status and popularity of vocational qualifications. Unless we get the legal structure right in this regard, parental support will not be forthcoming for young people between 14 and 18 to go to college rather than to stay in school. Therefore, schools and colleges should fall in the same category. This has been recognised in other respects by the University and College Union, which has campaigned for example on the issue of the registration of further education lecturers. The union sees that parental support and confidence in colleges is dependent on their being seen as being on the same level playing field as schools.
Baroness Hamwee
My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms “day-to-day” and “close and constant” and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read—noble Lords referred to this—that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.
It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be—I do not know; other people’s language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.
I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.
I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child’s side?
The Minister of State, Home Office (Lord Henley)
My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report—the recommendations, if I may summarise them—was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.
Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo’s, who said that the Government’s proposals were a “victory for common sense”. She said:
“There is already enough safeguarding in place for people who have unsupervised, substantial access to children”;
and that:
“This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child’s life without unnecessary red tape”.
There was also support from the Scout Association, Nacro and others—I could go on. The question that we want to address is how to get the right degree of proportionality.
The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.
Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.
Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.
The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.
We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or for barred-list checks to be made. Proper supervision should help to reduce the risk of improper conduct and of inappropriate relationships developing. Noble Lords have spoken about the dangers in this area. I appreciate that there have been some concerns about what supervision means and whether this will apply, for example, to an assistant sports coach. However, I should say that we are not seeking to define supervision by a title, such as “assistant” or “deputy” coach or trainer. If such roles are working independently of the head coach and not being supervised, they would remain in regulated activity.
This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.
My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch—for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.
Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of “recreational”. As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere—paid or unpaid—would not be. In addition—a point queried by the noble Baroness, Lady Royall—it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.
Baroness Royall of Blaisdon
I am grateful for that response from the Minister but I surmised from what the noble Lord, Lord Addington, said that the intention behind the amendment was indeed to capture a wider activity than just a sporting activity and to open it up a bit further to encompass youth clubs or whatever. However, I may be wrong about that.
Lord Addington
Perhaps I may come in here to clarify the matter. I was using sport as an example of where you get activity. The noble Lord has started to answer my concern but, although he has gone some of the way in his initial response, I do not think that he has totally embraced the position of control that can be taken on by a coach, even if that coach has a subservient role to the main coaching structure. For instance, if you are a potential shot-putter, you need a strength coach. You need someone to control your diet, your exercise and the way you sleep. I am trying to get at whether that degree of control is within an organisation. The noble Lord is starting to get there but I am just saying that, unless that degree of control in this one sector is addressed, he is going to miss out a lot of things in other sectors.
Lord Henley
My Lords, obviously at this stage I cannot define “recreational” as used by my noble friends in their amendments. It is not for me to define it; an explanation will have to come from noble Lords themselves as they move their amendments. The subsidiary point to that—the concerns expressed by my noble friend—may be best addressed by my noble friend Lady Hamwee’s comments when she talked about the difficulty of getting it down to just one or two words. She talked about the need to get this consultation, and the guidance ensuing from it, which is exactly right. I hope that my noble friend now accepts that that is what we are trying to do. That is why I want to make sure that the consultation is out before the next stage of the Bill. I see the noble Baroness, Lady Farrington, twitching to get up, so I shall give way.
Baroness Farrington of Ribbleton
Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term “proper supervision”. I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining “supervision”. It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of “proper supervision” is defined as much in the Bill as in the guidance.
Baroness Hamwee
Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.
Lord Henley
The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation. That is one reason why I shall resist the amendments put forward by the noble Baroness, Lady Royall, which ask for close and constant supervision, because we think that that goes too far. However, I shall address that in due course. The important point is that we have to get this guidance right. To get the guidance right, we have to get the consultation right, and I hope to have the consultation available before we reach Report.
Perhaps I may now deal with the noble Baroness’s Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.
The noble Baroness’s amendments would change the wording to “close and constant”, which would render the definition of supervision unworkable and go against the Government’s intention of having more proportionate disclosure and barring arrangements. If you think about it, the words “close and constant” are pretty severe. I gave the example of the classroom environment, and “close and constant” does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.
We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.
Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.
Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is “controlled activity”. Controlled activity is to be abolished under Clause 68. We believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education or care of children, for example in a primary school or a nursery.
The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.
Baroness Hamwee
Will the Minister move away from the wording of this amendment—I take the point he makes about it perhaps being too blanket in its coverage—and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.
Lord Henley
My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality—I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.
Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.
We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further discussions, I am prepared to do that, although the last time we had discussions it resulted in her bringing forward this amendment, so it does not necessarily always help.
Baroness Walmsley
Perhaps my noble friend the Minister will allow me to clarify my thoughts on this matter. The main point I am trying to make is that we are having very great difficulty defining what is meant by the level of supervision that the Government want to put outside regulated activity. The point I am trying to make is that the best people to decide the roles that should correctly be within regulated activity are the organisations themselves. They know whether those roles give the person the opportunity to develop that relationship of trust with the child, and no civil servant sitting in Whitehall can possibly do that. The very fact that we are having such difficulty defining the level of supervision that we mean is an indication that I am right about that.
Lord Henley
It may or may not be an indication that my noble friend is right, but I think that further discussions, even if they do result in further amendments, might be appropriate.
Baroness Royall of Blaisdon
My Lords, it is absolutely right that the noble Lord has offered to have further discussions with the noble Baroness about this amendment, and I welcome that. Clearly we are not going to have another opportunity to discuss my amendments to do with “close and constant”. The noble Lord said that “close and constant” would be too prescriptive in the Bill and would destroy the balance he is seeking to ensure. However, after the noble Lord, Lord Bichard, expressed disquiet about the balance in the Bill, will the Minister agree to have further discussion with us about the words “close and constant”? The noble Lord says that the consultation will be launched but that he will not be able to provide the Government’s response to the consultation before Report. I am slightly alarmed. The consultation is to be welcomed, but then we are going to be expected to decide what is going to be in the Bill before we know the Government’s response to the consultation, and that seems a bit topsy-turvy to me.
Lord Henley
We can have a meeting if the noble Baroness wishes; my door is always open. I just think that “close and constant” goes far too far and more or less negates the point of what we are trying to do in this area. Obviously, we would also listen to what the noble Lord, Lord Bichard, has to say on these matters, and I will give way in a minute; we welcome his experience. I remind the noble Baroness, however, that he was not totally uncritical of what followed his report and what was done; if I can paraphrase the noble Lord, he said it was not quite as proportionate as it might be.
Lord Bichard
My problem, which is not yet being addressed, is this: we have checks to ensure that inappropriate people do not get access—particularly to young children because they are vulnerable. That is why we have the checks. The Government’s new proposals seem to be based on the belief that supervision—whether it is close, constant, day-to-day or whatever—can make an individual who is inappropriate appropriate to work with young people. That is an issue about which I have serious doubts, because I do not believe that supervision can ever deal with that issue conclusively, not least because you can supervise somebody on a day-to-day or constant basis in his work, but that does not stop him grooming the young person and meeting them at the weekend, outside of work or the activity. Therefore, I am worried that we seem to be accepting—on all sides of the House—that coming up with a definition for supervision deals with this problem. I am just not sure that it does. The Minister may want to comment on that; I certainly believe there is room for further discussion.
Lord Henley
The noble Lord seems to be suggesting that we get rid of the idea or the concept of supervision in its entirety. I simply do not accept that. I think there is a role here for making it easier for people to get involved, with the appropriate degree of supervision where necessary. I take it that the noble Lord does not agree with me on that and it might be that the noble Baroness, Lady Royall, does not agree with me on that: in which case, we will have to differ. We on this side see a role—and so do many other bodies outside—for the appropriate supervision to allow people to take on such a role. For that reason, I am not sure that a meeting on this matter would necessarily be fruitful.
Baroness Farrington of Ribbleton
There is a world of difference between close and constant, and occasional. There is a further concern that could be raised about those who are deemed to be in supervision. Were things to go wrong—and in the best of all possible worlds, there will tragically be such occasions—we must consider those who will be deemed to have been in a supervisory capacity, where they must rely on their judgment about the individual. Some people have referred to them as manipulative: they are deadly.
Furthermore, I refer to a quote in connection with a case involving a member of the Scouts. When I spoke to a young person who had come into contact with this predator, the young person said:
“We worked out that he was the one who looked for the child with no friends”.
I am concerned that if in the future we are going to rely on somebody being in a supervisory capacity, they need protection from any allegation at a later stage that they failed to supervise.
Lord Henley
My Lords, I think that we are moving away from what the amendments originally were about. There now seems to be a general attack on any idea of supervision at all. I am making it clear that we believe that supervision is appropriate but that it is just a question of getting that balance and proportionality right. For that reason, we think that we have got it right and that is why we will consult on the detail, which, as my noble friend Lady Hamwee made clear, was a matter more appropriate for the Bill. I do not think that I can add much more at this stage. I have dealt with the three subgroups of amendments within this group. I very much hope that my noble friend Lady Heyhoe Flint will withdraw her amendment and that the other amendments will not be moved.
Baroness Heyhoe Flint
I thank my noble friend for his response. Having lobbed the pebble in the water, it has drawn up several matters that I had not envisaged in my amendment. I am encouraged that the Minister has listened to my pleas, which perhaps is rather selfish, and has given assurances concerning governing bodies and further education. Working on the premise that it is better to be safe than sorry and having had the assurance that there will be further guidance and consultation, which I am sure will be balanced and proportionate, I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, these government amendments are to remedy an anomaly in the definition of regulated activity for adults. The Bill provides that regulated activity relating to adults can be broadly split into six categories, one of which is the provision of personal care. The personal care definition currently includes “physical assistance” with the care of,
“skin, hair or nails (other than nail care provided by a chiropodist or podiatrist)”,
which is on page 64 of the Bill.
These amendments will remove the current exception,
“other than nail care provided by a chiropodist or podiatrist”,
as the exception creates an anomalous situation where chiropodists and podiatrists are in regulated activity because they are regulated healthcare professionals except when providing nail care. The amendments will achieve the Government’s policy aim that chiropodists and podiatrists are wholly within regulated activity and therefore within the scope of the revised vetting and barring scheme. I beg to move.
Lord Rosser
“Alteration of test for barring decisions
(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.””
Lord Rosser
I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions.
Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief.
We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information is only included for applicants in regulated activity. No doubt the Minister will say that an enhanced CRB check will give all but the barred status, meaning that prospective employers will have access to the police records which would have led to the barring decision. However, it seems somewhat illogical that an employer should have access to all but the one crucial piece of information, which is whether experts believe that there is something sufficient to justify preventing an individual from working with vulnerable groups.
First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government’s proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA.
So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid.
The NSPCC appears to take a similar view, because the Government’s own review on the vetting and barring scheme states that:
“The NSPCC’s view is that some offences against children should always be grounds for barring”.
Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR recommendations that individuals should have the right to a full merits hearing before an independent and impartial tribunal. The Government’s proposals as they stand fall short of providing a full merits appeal for individuals included on the barred list. We believe that providing this, alongside automatic barring, reflects the correct balance—we as well as the Government will use the word—between providing on the one hand adequate protection for vulnerable groups against interference with their right to life, their right not to be subjected to inhuman or degrading treatment, their right to physical integrity and their right to respect for their private life and dignity, and on the other hand the protection of individuals’ rights to privacy and a fair hearing.
The Lord Bishop of Newcastle
My Lords, I would be grateful if I could ask the Minister for clarification. As I understand it, the intention is that the vetting and barring scheme will continue, albeit in a more scaled-down way. I understand that the current legal requirement to refer for possible barring any employee or volunteer who is deemed to represent a risk to children will continue, but the scope has been narrowed so that people will be placed on the barred list only if the ISA has reason to believe they are, have been or might in the future be working in a regulated activity. Yet at the same time the definition of regulated activity is being narrowed.
I ask the Minister if this means, for example, that a person may be barred from teaching, a regulated activity, but not from working as a voluntary teaching assistant, which is a non-regulated activity, if there is supervision; and that, further, any CRB check for the voluntary teaching assistant would not disclose that the individual is barred from regulated activity. I hope I am wrong in that—surely that cannot be right. Obviously this limitation, if it is enacted, would have very serious risks for the safe recruitment of people, not least within church and, indeed, other circles.
Lord Henley
My Lords, I thought that the noble Lord, Lord Rosser, had managed to silence the entire House, but the right reverend Prelate proved me wrong. I hope I will be able to respond to the remarks of the right reverend Prelate in due course.
I am grateful to the noble Lord for his explanation of Amendments 68 and 69, which make three substantive changes to the barring arrangements. First, they would reverse the change in Clause 67, which limits bars to those people who have been, are, or might in the future be engaged in regulated activity. The effect of this amendment would be that the barring regime would continue to extend to many people who do not work with, and do not intend to work with, children or other vulnerable groups. For example, a lorry driver or an office worker who has not worked with vulnerable groups and does not intend to would be barred from such work. We do not think that this fits with the purpose of the scheme and it does not accord with our aim of reducing the barring arrangements to common-sense levels.
Bars should continue to apply to those who have been engaged in regulated activity or who are likely to be so in the future. If an individual applies for an enhanced criminal record certificate or a barred list check, indicating that they may seek work in regulated activity, any automatic barring offences will be disclosed and referred to the barring authority at that point. In addition, enhanced criminal record certificates will continue to be available to employers of those working with children or vulnerable groups—including volunteers—and will provide information on previous criminal offences.
The second of the three changes that this amendment seeks to make concerns the category of offences that lead to an automatic bar, in relation to which representations can be made. Under the current arrangements, such representations can be made only after the person has been placed on a barred list. As a result of Clause 67, individuals would be able to make representations before the barring decision is made. Amendment 68 seeks to reverse that change, such that representations would still be made retrospectively. The provision in Clause 67 was made in response to a recent court ruling; but even if that were not the case, it seems to be a matter of basic fairness that representations about a decision should be considered when there is still a chance to influence that decision. Currently, someone may be barred, and even if that bar is revoked, they may already have been denied employment as a result.
The third change is that representations in both automatic and discretionary barring cases would be accompanied by the right to oral hearings. I do not consider that to be necessary. We have to remember that the Independent Safeguarding Authority is not a primary fact-gathering organisation but depends on information that comes from employers, regulators and others for its evidence. The person concerned may then submit representations about any or all of the evidence, which the ISA will evaluate fully. Once, having assessed all the evidence and the representations, it has determined whether the person ought to be barred, there is a final safeguard by way of recourse to the Upper Tribunal on a point of fact or law. Oral representations are not prevented under the current legislation, and the ISA will consider all requests on a case-by-case basis. We can debate the issue of oral hearings, but it seems inconsistent that the noble Lord wants to make this change while also seeking to revoke that more basic procedural change on allowing representations before the barring decision has been made.
Amendment 69 proposes that information about whether somebody is on the relevant ISA barred list should be made available on all enhanced criminal record certificates, regardless of whether the post falls within the barring regime. The Government’s position is that although there is a case to make such information available for a few specific cases falling outside regulated activity—such as applicants to foster or adopt a child—barred list information should otherwise be made available only for positions falling within regulated activity. This represents a very simple but important principle: barring by the ISA is about regulated activity and barring decisions are made in order to prevent people, by law, from working in regulated activity. They are not intended as a broader advisory tool for employers. An employer providing regulated activity needs to know if someone is barred, because they are then required by law to refuse that person’s job application. However, it is not relevant for an employer to know this when they are seeking to engage someone in non-regulated activity. Such information would only tell them that the person was barred from another area of work and making it available would be detrimental for potential employees—it is very likely that an employer in such a situation would refuse employment because they saw the word “barred”, even though the person may not represent a risk to any vulnerable people in that job. I do not believe that is a new principle. Under the existing arrangements, barred list information is not generally disclosed for positions falling outside regulated activity, so I am a little surprised that the noble Lord now advocates such a change. The changes we are making are to the scope of regulated activity.
The right reverend Prelate asked whether a person barred from teaching, but not from being a teaching assistant, could still be allowed to work. If the supervised volunteer was not on the payroll of the school, it is possible that that supervised volunteer could be barred from regulated activity and could still undertake this not-regulated activity. CRB checks and references, plus the supervision, should provide the necessary safeguard. Bars have only ever been applied to the regulated activity. That was the case before and will be the case in future. The answer, if I have got it right, is very simply that the teaching assistant could work but that obviously there would be adequate supervision —a matter that we discussed under an earlier amendment.
I hope that with those explanations, the noble Lord will feel able to withdraw the amendment. If not, I leave that matter to him.
Baroness Farrington of Ribbleton
My Lords, I hope that the Minister will take away and think about the fact that the degree of supervision that the person in the supervisory capacity feels it necessary to give may vary according to the degree of knowledge that they have about the background of the person concerned. The right reverend Prelate raised a very important issue. I go back to my point about the duty and responsibility of those in the supervision capacity.
Lord Henley
I have a sneaking feeling that the noble Baroness just does not like the idea of supervision coming in at all and would like to see yet further, more stringent measures being applied. It is a very good way in which to make sure that the appropriate checks and balances can be found. There is the appropriate degree of proportionality and there will be the appropriate supervision, which we will consult on in due course.
Baroness Farrington of Ribbleton
The Minister misunderstands my position. My primary concern is the care of children, which I share with everybody else involved with this Bill. My secondary concern is that I agree with the principle of supervision, provided that I know what it is.
Lord Henley
I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.
Lord Rosser
My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.
The Minister raised the issue of the appeal. Clearly, the Government’s intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government’s proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout—that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.
There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,
“also has effect in relation to any subsequent … application by”,
the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,
“may be withdrawn at any time”.
If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.
In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view—this is where I hope to be able to give my noble friend the assurance that she seeks—is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.
It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.
The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.
Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by “consent” is helpful, and I beg leave to withdraw the amendment.
“Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment) for subsection (2) substitute—
“(2) A person guilty of an offence under this section is liable to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”
(3) For section 4 (putting people in fear of violence) substitute—
“Offence of stalking
(1) A person (“A”) commits an offence to be known as the offence of stalking, where A stalks another person (“B”).
(2) For the purposes of subsection (1), A stalks B where—
(a) A engages in a course of conduct,(b) subsection (3) or (4) applies, and(c) A’s course of conduct causes B to suffer fear or alarm.(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—
(a) was authorised by virtue of any enactment or rule of law,(b) was engaged in for the purpose of preventing or detecting crime, or(c) was, in the particular circumstances, reasonable.(6) In this section—
“conduct” means inter alia—
(a) following B or any other person,(b) contacting, or attempting to contact, B or any other person by any means,(c) publishing any statement or other material—(i) relating or purporting to relate to B or to any other person,(ii) purporting to originate from B or from any other person,(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication,(e) entering any premises,(f) loitering in any place (whether public or private),(g) interfering with any property in the possession of B or of any other person,(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,(i) watching or spying on B or any other person,(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and“course of conduct” involves conduct on at least two occasions.
(7) The Secretary of State may by regulations made by statutory instruments add additional forms of conduct under subsection (6).
(8) A person convicted of the offence of stalking is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.(9) Subsection (10) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in the summary proceedings, the court—
(a) is not satisfied that the accused committed the offence, but(b) is satisfied that the accused committed an offence under section 2. (10) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””
Baroness Royall of Blaisdon
My Lords, Amendment 70 would introduce a new criminal offence of stalking in place of the existing offence of putting people in fear of violence under the Protection from Harassment Act 1997, and would clearly define stalking behaviour in legislation while leaving scope for the inclusion of additional types of behaviour should evidence suggest that it was needed. The amendment would also increase the statutory maximum penalty for harassment from six months to five years, and it would allow cases to be tried in the Crown Court as well as the magistrates’ court.
Before going any further, I wish to place on record my thanks to Laura Richards of the charity Protection Against Stalking and Harry Fletcher of Napo for their fantastic research and the briefing that they have provided to all noble Lords who are interested in this issue. I am also grateful to them for the independent people’s inquiry that they are undertaking.
We have debated on many occasions the freedoms of defendants and, in some cases, criminals, but now we have the opportunity to debate the protection of the freedoms of victims of stalking, many of whom are women, who are insufficiently protected at present by the legal arrangements. The British Crime Survey for 2006 estimates that up to one in five people will experience stalking in their lifetime, and that there are about 120,000 separate incidents of stalking and harassment each year. The current law is patently not working and the state is failing victims, 80 per cent of whom are women, according to data from the National Stalking Helpline.
The Protection from Harassment Act 1997 was brought in by the Labour Government to provide proper protection for victims from serious cases of harassment and stalking. However, those same victims who successfully campaigned for a change in the law back in 1997 now say that the law, when introduced, was too broad and did not go far enough to identify and prosecute the types of behaviour that distinguish stalking from other, milder cases of harassment.
Tracey Morgan is one of those leading campaigners, and I commend her for the extraordinary courage and determination that she has shown over the past 15 years in campaigning to increase awareness around stalking and to ensure that other women will not have to endure the terrible experiences that she did. For those noble Lords who are not familiar with her story, Tracey was stalked for 10 years by Anthony Burstow. Aged 22 and happily married, Tracey had sympathy for Burstow, who was a colleague and whose wife was serving abroad, inviting him out several times with her husband Andy. However, Tracey began to be disturbed and increasingly frightened by the number of times that she bumped into him outside the workplace, and then she noticed him parked outside her home. It was a pattern of behaviour that escalated into a terrifying ordeal that lasted for almost 10 years. Tracey was one of the key campaigners for the Act and is now leading the voices calling for a change in the law to create a specific offence of stalking. She states:
“Victims are never taken seriously—from police forces, to courts, to the whole criminal justice system. Claire Waxman is saying the same thing I was 15 years ago. What’s changed? There needs to be a sea change in attitude. It's about murder prevention”.
Leading campaigners such as Tracey and organisations such as the National Association of Probation Officers and Protection Against Stalking all argue that the law in its current form is not set up to deal adequately with cases of stalking. We therefore believe that the existing sentencing provisions must be changed to allow greater protection to victims and recognise the seriousness of the crime. The prosecution of stalking under the offences of harassment or putting a person in fear of violence rarely results in a prison sentence. Responses to Parliamentary Questions tabled in the spring of this year showed that of the 4,365 found guilty of the offence of harassment under Section 2, only 565 received a custodial sentence. The overwhelming majority of sentences were of less than 12 months and some were of a matter of days.
Just as alarming is the lack of data on the true extent of stalking. Answers to Parliamentary Questions tabled this year reveal that the Government have no idea how many homicides were preceded by stalking behaviour, or how many domestic homicides were stalking-related, since probation reports do not routinely contain social histories but focus rather on the offence in front of them. A report on the Victim’s Voice survey of 143 victims, published by Protection Against Stalking, states that there is an overwhelming feeling among women victims in particular that, despite reporting numerous past incidents, which occurred time and again, these are not taken into account by the courts when assessing the seriousness of the indexable incident before them. Police, prosecutors and courts are in general incident-focused and so will look at the offence in front of them when sentencing, rather than draw conclusions from the pattern of behaviour that led up to it. However, we know from cases such as Tracey’s that it is this pattern of behaviour, escalating in threat and intensity, that provides the crucial warning signs of stalking that are all too often missed.
The tragic case of Clare Bernal is a case in point. In September 2005 she was shot dead in a store in Knightsbridge by Michael Pech. He had stalked her after their three-week relationship ended, following her in the street and bombarding her with threatening calls and messages. However, after being arrested and charged with harassment, he was bailed and travelled back to Slovenia, where he purchased the gun that he used to shoot Clare while awaiting sentencing. We need greater clarity in the law to ensure that other women do not have to experience what happened to Clare. A report by Protection Against Stalking identified countless similar cases in which the law in its present form failed to protect victims—most of whom are women—and failed to intervene until it was too late.
The amendment before us today would represent the first step in ensuring that the criminal justice system properly recognises and responds appropriately to cases of stalking, not only by identifying a clear definition in law but by ensuring that victims are properly protected from perpetrators by increasing the statutory maximum penalty for harassment from six months to five years, and by allowing cases to be tried in the Crown Court as well as the magistrates’ court. The changes would also mean that police had the power to enter properties and seize evidence such as computers, which are crucial to the prosecution of the growing problem of cybercrime.
As I said at Second Reading, the Government seem to be very keen on the Scottish way of doing things in other areas of criminal law. Therefore, I hope that the Minister will support the amendment today. It replicates the offence of stalking and the accompanying charges and sentencing that were introduced in Scotland by the Criminal Justice and Licensing (Scotland) Act 2010. If ever evidence were needed of a successful change in the law, the experience in Scotland provides it. In the 10 years prior to the Act, an estimated 70 cases of stalking were successfully prosecuted. Following the introduction of an offence of stalking, 140 prosecutions were made in the first four months in Strathclyde alone. Following on from Scotland, a criminal offence of stalking was introduced in Sweden in October of this year.
The people’s inquiry into stalking, the National Association of Probation Officers, Protection Against Stalking, many courageous women such as Tracey Morgan and the parents of stalked women, such as John and Penny Clough and Tricia Bernal, are all calling for a change in the law to create a specific criminal offence of stalking and increase the sentencing arrangements. We welcome the announcement of a government consultation on the introduction of an offence of stalking following calls from my right honourable friend Yvette Cooper at the Labour Party conference. However, we urge the Government to use this as an opportunity for a comprehensive root-and-branch evaluation of how the criminal justice system deals with vulnerable women and male victims of stalking and other related offences.
Baroness Howe of Idlicote
My Lords, I fully support the amendment of the noble Baroness, Lady Royall of Blaisdon, which aims to incorporate the same law against stalking in English and Welsh law that already exists in Scotland. The campaign to establish a law against stalking in Scotland was launched in March 2009 by Ann Moulds, who was herself a victim of stalking, and other supporters. These efforts led to two clauses being inserted in the Criminal Justice and Licensing (Scotland) Act 2010.
It is particularly significant that the Scottish campaigners decided not to press for a version of the Protection from Harassment Act 1997—the current law in England and Wales. As we have already heard from the noble Baroness, Lady Royall, a similar position was taken in September 2011 by the Swedish Government. Their decision was taken on the grounds that the 1997 Act does not in practice contain sufficient powers to deal with the increasingly complex crime of stalking. In their view, harassment covers everything from rows between neighbours to domestic disputes but omits to recognise stalking behaviour per se. Stalking, they argued, is quantifiably different from harassment in law, not least in its increasing use of modern technology, particularly the internet, for what is now known as cyberstalking. It is all too easy for a stalker to reinvent himself as somebody else making inquiries about his victim. That has opened up a whole new area.
The campaign in Scotland was launched at a meeting in Ayrshire. It gathered momentum during that year and involved lobbying MSPs, officials, pressure groups, government departments and third-sector organisations over a 12-month period. During the 10 years to 2010, Ann Moulds estimated that no more than 70 cases of stalking were successfully prosecuted under British legislation. However, since the introduction of the new Act in Scotland, there has already been a number of prosecutions in Strathclyde alone in the first four months, as we have heard.
The campaign to establish a stalking law and offences of causing fear and alarm was achieved in a remarkably short period. The campaign ran for roughly a year and led to all-party agreement on legislation. The legislation has the support of the police, who have adopted operational guidelines to ensure that police are aware of stalking and harassment behaviour and take appropriate action. Again, as has been stressed, much more training will be needed.
Since the Scottish Act took effect, the number of prosecutions has visibly increased, with the vast majority of those prosecuted pleading guilty. The experience of Ann Moulds and other victims prior to the introduction of the legislation was the same as in England and Wales: namely, a feeling by victims—the vast majority of whom, as we have heard, are women—that the crimes were not taken seriously and that there was underreporting and underrecording, a lack of confidence in the justice system and a failure of the state to provide proper victim advocacy.
The seeds of the English and Welsh campaign are already being sown. We owe a tremendous amount to Harry Fletcher of Napo and Laura Richards of Protection Against Stalking. Among other things, they have encouraged the setting up of a cross-party group of parliamentarians who have taken evidence for the past few months. We hope that a report will be produced in the new year that will speed up decision-making on the legislation that we need in this country.
Stalking is a dangerous and often vicious crime that causes not just immense concern but a huge amount of damage to the individuals involved and all their family. Violence plays an inevitable part, particularly if early action is not taken. Other forms of psychological harm are used the whole time. I hope that if not today then on Report we can debate the issue in much greater depth and, I hope, reach the same conclusions as in Scotland that such a law is certainly needed urgently in England and Wales, too.
Baroness Brinton
My Lords, it is frequently said that one of the strengths of this House is its expertise and experience. However, I am afraid that I have some unwelcome experience in this area that colours my views about the effectiveness, or otherwise, of the Protection from Harassment Act 1997 and the stalking Act in Scotland on which Amendment 70 is based. I had the misfortune to be the target of a sustained, three-year criminal campaign that included a number of stalking and harassment incidents, as well as criminal damage, which was waged by my Conservative political opponent Ian Oakley when I stood for Watford at the 2005 and 2010 general elections.
It started in the run-up to the general election of 2005 when posters with my name had very unpleasant swear words painted on them in large letters. To spare noble Lords' blushes, I will refer to the C-word, the WH-word and the B-word. They were so graphic that at the sentencing of the perpetrator they were not read out in court. Although it was unpleasant, the police and my team felt that it would stop when the 2005 election was over—at this point we did not know who was doing it.
Sadly, that was not the case. Over the next three years, the individual's campaign escalated to include repeatedly sending me and mainly six other individuals gay and lesbian literature, including very unpleasant and increasingly hard-core pornographic material, making repeated silent telephone calls, particularly late at night after I had gone to bed, and sending a large number of untrue and very unpleasant letters first to party supporters and then increasingly to neighbours and random members of the public. I often felt that we were being watched, and I certainly did not like being on my own.
The perpetrator continued the campaign of minor criminal damage, which also escalated from breaking car wing mirrors and fence-posts to repeatedly slashing tyres on people’s driveways—not just one tyre but three or four on each car on a driveway, and done with, the police told us, a large nine-inch knife. The nature of the letters, notes and fake leaflets became more offensive and sexually explicit, which was very distressing.
Here I want to raise the issue of stalking of men. Well over 80 per cent of victims are women and the public are often unaware that men are targeted too. My close friend and colleague, a local councillor who became the second principal target in Watford, was at the receiving end of really vicious treatment in the same campaign. He was targeted simply because the perpetrator did not like the idea of a Liberal Democrat councillor in what had previously been an exclusively Conservative ward. His neighbours received anonymous letters saying that he had not paid his ex-wife’s maintenance—he is still happily married to his lovely first wife. A few months later his neighbours and some random members of the public received letters saying that the councillor was a convicted sex offender. A letter a few weeks later “named” the little girl and the effect this was having on her family. The whole thing was pure fiction. But those who did not know him said to me, “There’s no smoke without fire”, even when told it was not true. It affected him, his wife and his adult children. This was typical of the power that stalkers try to gain over their victims through using other people near and dear to them and, sometimes, complete strangers.
As the main target, and because I was the parliamentary candidate, I co-ordinated the reporting of all these events, because in the early stages we could not get the police to take them seriously. Surveys of stalking victims show that often they suffer 100 incidents before they go to the police or can get the police to take it seriously. So it was in our case. Only when I collated all these so-called minor incidents and put them in a spreadsheet with dates, times and locations—and often one incident covered actually eight incidents of criminal damage—did the police recognise that this was more than, in their description, occasional interparty political games but was a determined and sustained campaign by an individual.
When the tyre slashing started, the police attitude changed completely. Their profiler said that the next step would be danger to people and we were warned and trained how to deal with any future events. This included saying a code word—“Operation Tuition”—when ringing about an incident so that anyone taking our call in the police control room would alert detectives immediately. This worked for a bit, but as personnel changed so the vigilance dropped, and on at least two occasions the perpetrator could have been caught if control had responded as originally intended.
My husband installed around a dozen CCTVs at the homes of the main targets, including ours, at his own personal cost and time, in an attempt to get the perpetrator's fingerprints. The targets and our families, including my teenage children, already alarmed at what was going on, were taught to use police-issue gloves to pick up anything posted through our doors.
Following an incident where my husband took a photo of the perpetrator when he was being very aggressive to me and two councillors one day, the police were able to use the photo and subsequent CCTV of a graffiti incident to link him to the vandalism, and at last, in July 2008, he was caught. Thankfully, given the weight of the evidence, he pleaded guilty to seven specimen charges: five of criminal damage and two of harassment. He asked for a further 68 to be taken into account. Another 80 or so incidents—including a large number stalking/harassment ones—were not even included.
Our case was typical of this kind. Having got some evidence, the police and the CPS wanted to close it down quickly, for which I have some sympathy. This meant that they used the incidents with forensic evidence for the charges, but stalking and harassment is harder to prove. In fact, in law, an “index” crime such as GBH or ABH will at present cancel out the need for the harassment even to be logged. This must be changed as it is making stalking and harassment invisible. We also need a higher sentencing tariff than is currently available under the harassment Act.
It may be peculiar to say this, but I was lucky—lucky because I was not on my own. With six other colleagues—five councillors and a candidate—who were also targeted by this man, and dozens of supporters having criminal damage to their properties or receiving extremely unpleasant literature about me or my colleagues, we were able to band together as a little team and support one another. Most victims of stalking are on their own. They do not have the benefit of knowing how to explain to the police or of having local newspapers, such as the Watford Observer, taking them seriously and refusing to publish the repeatedly really offensive letters about me. It is therefore essential that more support and advocacy is available to victims of stalking, especially those struggling on their own.
Lord Dear
My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term “violence” needs to be ameliorated in some way and the wording in the amendment that refers to “fear or alarm” would take us closer to the course of conduct referred to in many parts of your Lordships' House.
This issue has grown in modern society over the past 10 or 20 years. I do not offer any suggestion as to why that has happened. Perhaps we have, paradoxically, an anonymous society on the one hand and a society with a plethora of information in it on the other. There is certainly a growth in technology and perhaps a celebrity culture. Whether celebrity is real or imagined hardly matters; the fact that it is now possible to become the focus of someone’s attention is clearly at the root of what is proposed. I believe that we need to do something to alter this very tight definition of violence. The question of whether the wording of the amendment is too prescriptive I leave for a later debate. Personally, I think that much of the legislation coming through your Lordships’ House is far too prescriptive, and that in itself presents a trap. I hope that the Minister can take away the comments of this House, including my own, to examine what has been said, and perhaps we can return to this matter for further consideration on Report. I support the amendment.
Baroness Hamwee
My Lords, perhaps I may raise two small points. They seem almost trivial in the context but they are important and, as the noble Baroness said earlier, the opportunities for this sort of discussion are limited to Committee. I appreciate that this is existing legislation in Scotland. My first point relates to proposed new subsection (4) in the amendment, which states,
“where A knows, or ought in all the circumstances to have known”.
The existing Section 4(2) brings in the notion of a reasonable person. I read the existing law as objective and this proposal as being subjective, and I am not sure whether it is strong enough.
My second point relates to new subsection (2) of the proposal, where it would be necessary for the course of conduct to cause “fear or alarm”. Again, I wonder whether that is strong enough. What if the victim is a particularly resilient person? Should the person engaging in the conduct be able to do so because of the toughness of the victim?
Lord Sharkey
I thank the noble Baroness, Lady Royall, for tabling this amendment, whose objectives I strongly support. As noble Lords have already noted, the situation relating to stalking in England and Wales is entirely unsatisfactory. It is clear that the offence of harassment is not an effective way of dealing with the problem of stalking. It is not effective for the protection of possible victims; it is not effective for the successful prosecution of offenders; and it is not effective in the delivery of appropriate punishment for those who are found guilty.
A recent survey conducted by the members of the National Association of Probation Officers showed that the overwhelming majority of victims were in constant fear and many were physically injured. Most victims claim that there are a number of incidents before they feel they can go to the police. Often their complaints are not properly investigated, and the perpetrator’s behaviour escalates over time if there is no criminal justice intervention or treatment.
It appears that stalking behaviour is simply not recognised by the majority of professionals who have to deal with the cases. Probation staff are concerned that when sentences are handed down they are often too short for rehabilitation or treatment to occur, or even to match the gravity of the offence and its effect on the lives of victims. We should not allow things to continue as they are. The suffering caused to victims is often harrowing and sometimes life-destroying.
The current methods for dealing with the problem are clearly inadequate. However, as noble Lords have pointed out, there is an obvious way forward, which is to learn from the experience in Scotland. As noble Lords have indicated, Scotland chose not to introduce a version of the Protection from Harassment Act 1997—currently the law in England and Wales—on the grounds that the Act did not transfer powers into practice. Instead, a new law, on which this amendment is based, was passed in December 2010 creating a specific offence of stalking and offences of threatening and abusive behaviour. This legislation has the support of the police, who have themselves adopted new operational guidelines to ensure proper awareness of stalking and harassment. There are clear signs of the success of this Act, even at this very early stage.
I acknowledge that the Government take this matter extremely seriously, and I know that the consultation on the issue runs until 5 February. It is important that we learn from it. Nevertheless, I urge the Minister to take account of the strong views expressed today and the terrible plight of the victims of stalking and not to delay legislation on this issue one moment longer than is absolutely necessary.
Lord Henley
My Lords, I note what my noble friend Lord Sharkey and all other noble Lords said. I think it was the noble Lord, Lord Dear, who said that we should take away all the comments. My noble friend said we should look at this and not delay legislation. As he reminded us, we have a consultation that runs to 5 February. Obviously, we want to see the result of that consultation before we move much further, but I am grateful to the noble Baroness for explaining how her clause works and allowing us the opportunity to debate these matters.
As the noble Baroness will know, my right honourable friend the Home Secretary’s ambition, and the Government’s ambition, is nothing less than ending all forms of violence against women, including stalking. I am again grateful to my noble friend Lady Brinton for reminding us that stalking is not committed just against women and that some 20 per cent is against men. It is an offence that affects and can be devastating to many lives, and that is why we included stalking as a priority in our Call to End Violence against Women and Girls strategy published last November and why we followed it up with specific actions to tackle stalking in our action plan published this spring. It is why my right honourable friend the Prime Minister in response to a Question said:
“It is important that we take forward the work that the Home Office and the Ministry of Justice have done in looking at a proper, separate offence for stalking and recognising that there is a gap in the current law that we should fill, because there are people who are not getting the protection and help from the police that they need”.—[Official Report, Commons, 23/11/11; col. 292.]
The noble Baroness is seeking to strengthen the law on stalking and, as I said, there may be a case for that, but we should remember that we have that consultation and we want to look at it in some detail. There might be a degree of unanimity about what we can do and that at a later stage of the Bill—I do not know—something might be possible. That is a matter for the future, but before I go into some of the detail about what we have at the moment and what the noble Baroness’s amendment does, I think it is important to get that on the record.
I would like to make one comment that I think is relevant and to deal with the question of police training and training for others that was raised by the noble Baroness, Lady Howe, and my noble friend Lady Brinton. It is important that the right attitude exists within the police and those who have to deal with these things. We recognise that in the past that was not always the case. The Home Office has been working very hard with ACPO, the Crown Prosecution Service—which is important in this—the Ministry of Justice and, equally importantly, various stalking charities to ensure that best practice guidance has been disseminated. We are trying to do that through a series of regional events to make sure that how they must deal with these matters gets down to the police at the grass roots. ACPO now thinks that 65 per cent of forces currently have officers trained in risk assessment in this area, and it hopes to get that up to all forces by the end of the year, so awareness is improving and training will go on, but I recognise that there are concerns in this field.
I shall go back to some detail because I would like to get this on the record so that the noble Baroness can understand where we are with the existing Act—it was possibly the first Act that the previous Government passed, with the exception of that rather pernicious Act, which I was involved with, that abolished grant-maintained schools, but we will not deal with that at the moment. Probably one of the earliest Acts they passed was the Protection from Harassment Act. That was brought into force primarily to tackle stalking, but extends to any other persistent conduct that causes another person alarm or distress.
Baroness Brinton
Would my noble friend not accept that the increase in reported cases and convictions in Scotland since the introduction of the 2010 Act shows that the present guidance under the Protection from Harassment Act is insufficient?
Lord Henley
My noble friend makes a very good point and this is something we should look at. It is obviously early days for the Scottish legislation and we would obviously want to examine that. The point I am making is that it is covered by the 1997 Act; the question is whether there is sufficient awareness. Whether one should legislate just to increase awareness is another matter.
That said, as I hope I indicated in my opening remarks, the Government are committed to ensuring that we do all we can to protect victims of stalking and bring perpetrators to justice. I repeat that we introduced the consultation that has been referred to by myself and other noble Lords on 14 November to ask for views on how we can protect victims of stalking more effectively. The consultation includes a question on whether there should be a specific offence of stalking. We are keen to hear from anyone who has views or evidence in relation to this issue and will consider all submissions carefully before deciding on the next steps.
However, I hope that in light of that consultation and the work we are doing, in light of the commitment that I am making on my own behalf but also on the behalf of my right honourable friend the Home Secretary, and in light of the remarks that I repeated from the Prime Minister, the noble Baroness will agree that it might be premature to go down the route of immediately bringing in her amendments, and I respectfully ask her to consider not doing so in advance of the conclusion of the consultation, which ends in early February next year. I hope that I can assure the noble Baroness that this is something that my right honourable friend is keen to act on as quickly as is appropriate.
Baroness Royall of Blaisdon
My Lords, I am grateful to all noble Lords for this excellent if rather short debate on stalking. It is a very important debate and I pay particular tribute to the courage and honesty of the noble Baroness, Lady Brinton. The evidence that she gave today is deeply shocking, both in the treatment that she and her colleagues received but also the lack of support and advocacy over this whole issue. Of course, I also pay tribute to Ann Moulds in Scotland, who was mentioned by the noble Baroness, Lady Howe.
We have received mixed messages from the Minister today. He sort of expressed sympathy—indeed, he quoted the Prime Minister himself, who said that there is a gap to be filled—and in some ways he recognised that the current law is inadequate. However, when he went on to talk about the law as currently constituted, I think he was somewhat sceptical of the need for a new law. He said that the Section 4 offence—putting a person in fear of violence—was adequate. However, this is very rarely used by the police, and it is very difficult to prove it and to charge people. Sentences currently tend to be very few and far between and for a very short amount of time. In 2008, 839 people were found guilty under Section 4, but only 170 were given custodial sentences. It is clear from everything we have heard this afternoon that there is a gap in the law that needs to be filled.
I hear from all the comments around the Chamber—from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dear—that there may be questions about the wording of my amendment. I also know that the Government’s consultation is taking place at present. It might seem reasonable to say, “Yes, of course, I am prepared to wait until the end of the consultation”. What bothers me is that, as the consultation is going to end in early February, the Government may well then say, “It is going to take us a couple of months to respond”. By that time, some time in March, this vehicle that we have before us—a Bill going through Parliament—will have passed. The bus will have gone by, and we will then have to wait for perhaps another year for a law to be on the statute book, by which time more women and possibly more men may have been killed because they were victims of stalking. I do not think that I am prepared to wait for that long.
I ask the Minister to consider two options. The first is delaying the start of the Report stage, or this part of the Report stage, until we have had the responses to the consultation. The Government might then agree to do a swift turn-around of that consultation so that by the end of February, we could debate an amendment which took into consideration the results of that consultation. If the Minister is not prepared to give that assurance, I will work with noble Lords from all around the House to craft a suitable amendment to bring back on Report, which would at least take into account the evidence of the people’s inquiry, which I understand will report at the beginning of January. I would then seek to bring forward an amendment on the basis of the evidence brought forward by that inquiry.
Lord Henley
I cannot give the total assurance that the noble Baroness would like to have from me, but obviously we will work in the way we normally do—with great speed, as she knows full well—to do whatever we can. All I can say is that I cannot bring forward the end of the consultation beyond 5 February. How quickly we can work after that will be another matter, but we will do what we can.
Baroness Royall of Blaisdon
I well understand that, but I will be seeking an assurance in writing from the Minister. If we are going to have Report stage in January, I will bring forward an amendment then—
Lord Henley
The noble Baroness knows full well that Report is unlikely to be reached in January. We still have not completed the Committee stage; we are not going to complete it this side of Christmas. We still have two days of this Bill after Christmas. We then have to have a two-week gap between those two days in Committee before Report. The noble Baroness can do her maths and work out that the Report stage will not be with us for a few weeks.
Baroness Royall of Blaisdon
I struggled with O-level maths, as is apparent. In that case, I hope that when we reach the Report stage in February, the Minister will have had an opportunity to respond to the consultation. If that is not the case, then on the basis of the other evidence which we will have had before us, I will bring forward an amendment and will certainly move it at that stage. I am grateful to all noble Lords who have contributed, and I beg leave to withdraw the amendment.
Lord Henley
Lord Goodhart
“Restriction on information provided about rehabilitated offenders
Section 9(3) of the Rehabilitation of Offenders Act 1974 is amended as follows—(a) in paragraph (a) omit “or to another person at the express request of the rehabilitated person”, and(b) in paragraph (b) omit from “or to another person” to “the rehabilitated person””
Lord Goodhart
My Lords, we have just heard one of the most remarkable statements that has been made in your Lordships’ House that I can remember since being here. Now it is time to move to much more ordinary amendments.
The amendments in this group are concerned with rehabilitation of offenders. The Rehabilitation of Offenders Act was enacted back in 1974. I have had an interest in this subject because I am, and was in 1974, a member of JUSTICE, the law reform and human rights organisation. JUSTICE supported the Rehabilitation of Offenders Act, particularly through the work of Paul Sieghart, who was then its executive chairman. It managed, after a great deal of effort, to get the Act through the Houses of Parliament.
The Rehabilitation of Offenders Act gives a new chance to people who have been convicted of minor or moderate offences and have not repeated other offences during a reasonable period after their release. This gives them a better chance of getting a decent working job than if they were required to admit their offences to their prospective employers. The Rehabilitation of Offenders Act has been a very obvious success in the 37 years since it was enacted. It can benefit not only potential employers but also other people as well, because ex-prisoners who are unable to obtain a decent job are more likely to revert to crime than those who can get such a job.
Unfortunately, some employers have found a way of getting access to the past record of a rehabilitated person which is technically legal but plainly contrary to the purposes of the Act. The main way in which this happens is through Section 9(3) of the Act, which allows official documents containing full records of the offence to be provided to rehabilitated criminals and also to anyone else at the specific request of the rehabilitated offender. That means that any prospective employer can ask the prospective employee to authorise the official disclosure of his or her record. If the prospective employee authorises the disclosure of the criminal record, he or she is very unlikely to be appointed by the new employer. If the prospective employee refuses to disclose his or her record, then he or she is equally unlikely to be appointed.
This was plainly not what was intended when the Rehabilitation of Offenders Act was introduced, nor was it intended at any time since. The correction of this defect is the purpose of my Amendment 71A. In the course of drafting this amendment, I have consulted the Information Commissioner’s office; I have had a good deal of assistance from that office both in relation to Amendment 71A and to the other amendments in this group. I believe that an amendment to the Protection of Freedoms Bill with the aim of my Amendment 71A would help the Rehabilitation of Offenders Act to continue its work which has, as I said, been very successful.
Turning to the other amendments in my name, I can quickly get away from Amendment 76B, which turns out to be out of date. I believe its objective has already been dealt with and it would not, in any event, have furthered my objective. My aim in Amendment 84, as in Amendment 71A, is to protect rehabilitated offenders from other circumstances in which their criminal record might be disclosed in circumstances which do not require disclosure. The legislation involved in Amendment 84 involves not only this Bill and the Rehabilitation of Offenders Act but also significant amendments to the Police Act 1997 and the Data Protection Act 1998.
Clause 84, which accidentally has the same number as my Amendment 84, changes the numbering but not the operation of the Data Protection Act. It is fair to say that Chapter 2 of Part 5, which will improve Clause 84, improves the situation of rehabilitated persons. However, there is one matter in which further improvement should be made, which concerns Section 112 of the Police Act 1997. The Police Act contains provisions that might make possible delay in the commencement of Section 112 of that Act. This possibility continues under Clause 84 as it now stands. It would however be for the benefit of rehabilitation to bring Section 112 of the Police Act into action. This is made clear in a document published by the Information Commissioner’s Office on the same subject as that of Clause 84, which was circulated since the Bill has come to the House of Lords.
I should like to read a brief paragraph from the circulated document. It states:
“The commencement of section 112 of the Police Act 1997 would be welcome. The Commissioner would also continue to stress the importance of introducing an offence of Enforced Subject Access under section 56 of the Data Protection Act as a matter of urgency. The opportunity to introduce these important and long over due measures should not be missed”.
The form of Amendment 84 may need alteration. Certainly, it would require reconsideration because I had to deal with my amendments extremely quickly and they may not yet be correctly worded. But it is my belief that the desirability of the purpose of my amendments is plain. I hope that the Government will be able to consider including them in their amendments. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lord Goodhart for providing the context and thinking behind his amendments. First, I will focus on Amendment 84, which would require that Section 56 of the Data Protection Act 1998 be commenced at most six months after this Bill becomes law, rather than, as now, no earlier than the commencement of various sections of the Police Act 1997.
As my noble friend has indicated, Section 56 of the Data Protection Act makes illegal what is referred to as “enforced subject access”; that is, when someone, in connection with employment or the provision of goods and services, requires a person or a third party to provide them with information about that person’s convictions, which they will have obtained through a subject access request. This means that if the subject of the request has convictions, they are able to obtain all the information that is held by the police themselves, thus making them the subject of the request. This would be made most likely to the police under Section 7 of the Data Protection Act. This loophole allows employers to circumvent the safeguards in the Rehabilitation of Offenders Act and in the criminal records regime to find out details of somebody’s spent convictions.
I agree with my noble friend that enforced subject access is wrong because it allows employers potentially to coerce employees and hinders the rehabilitation of offenders. Section 75 of the Data Protection Act provides that Section 56 of that Act is commenced only once certain sections of the Police Act, including Section 112, are in force. Section 112 of the Police Act makes provision for “basic” criminal record checks which provide details of any unspent convictions. If the section in the Data Protection Act, if it was commenced, would make it illegal for an employer to make an enforced subject access request, Section 112 of the Police Act makes provision for a basic criminal record check. An employer has another legal and legitimate route to find out information about unspent convictions only. He would be provided with information of unspent convictions and not full access to information which may not be relevant.
While Section 112 is in force in Scotland and Northern Ireland, it has not been commenced in England and Wales. The issue is when we introduce basic checks. Noble Lords may have seen the Written Ministerial Statement published this morning in relation to the Government’s response to Mrs Sunita Mason’s review of the criminal records regime. Mrs Mason recommended the introduction of basic checks by the Criminal Records Bureau in England and Wales. As our response to her makes clear, we accept the principle that basic checks should be introduced in England and Wales, but we do not plan to do so through the Criminal Records Bureau at the present time. We are, however, minded to introduce basic certificates in step with the establishment of the Disclosure and Barring Service, but further work is needed on the implications of doing so.
Meanwhile, some individuals already approach Disclosure Scotland for basic certificates and we are discussing the provision of a full service for all those working in England and Wales through Disclosure Scotland while the long-term position is considered. For these reasons it would not be feasible to introduce basic checks through the Criminal Records Bureau to the timetable set out in Amendment 84 in the name of my noble friend. That said, the question of enforced subject access and the commencement of Section 56 is one to which we will return in the context of our discussions with Disclosure Scotland flowing from Sunita Mason’s review. I hope that what I have said provides some reassurance to my noble friend and encourages him not to press his Amendment 84.
As my noble friend has explained, Amendment 71A would amend Section 9 of the Rehabilitation of Offenders Act. Section 9 makes it an offence for a public official to disclose information on spent convictions other than in the course of their public duties. They may do so only to the rehabilitated person or someone whom they reasonably believe to be the rehabilitated person, or to a third party to whom that person expressly requests them to make that disclosure. The noble Lord’s amendments would remove the capacity to disclose the information to a third party. From his explanation today, I understand that the intention behind the amendment is further to safeguard against enforced subject access. However, there are likely to be situations where a person may, quite legitimately and consensually, ask that details of their spent convictions be passed to a third party; for example, a minor requesting disclosure to their parent or guardian or an elderly person requesting disclosure to their carer. We therefore believe that the better approach is simply to commence Section 56 of the Data Protection Act at the appropriate time.
On the basis of that information, I hope that my noble friend has the assurance he is looking for and that he will feel able to withdraw the amendment.
Lord Goodhart
My Lords, what the noble Baroness has said is certainly a move in the right direction and that pleases me considerably. I hope that developments of the kind she has suggested will be brought about and that that will be done without undue delay. This is a serious problem, as the statement made by the Information Commission has shown, so I hope that things will go forward. I will withdraw the amendment but I will bring it back again at the Report stage if there is any reason to believe that there is undue delay or a backward movement in what is proposed.
Lord Henley
“(3) After section 120AB of the Police Act 1997 (procedure for certain cancellations or suspensions of registration) insert—
“120AC Registered persons: information on progress of an application
(1) The Secretary of State must, in response to a request from a person who is acting as the registered person in relation to an application under section 113A or 113B, inform that person whether or not a certificate has been issued in response to the application.
(2) Subsections (3) and (4) apply if, at the time a request is made under subsection (1), a certificate has been issued.
(3) In the case of a certificate under section 113A, if it was a certificate stating that there is no relevant matter recorded in central records, the Secretary of State may inform the person who made the request that the certificate was such a certificate.
(4) In the case of a certificate under section 113B, if it was a certificate—
(a) stating that there is no relevant matter recorded in central records and no information provided in accordance with subsection (4) of that section, and(b) if section 113BA(1) or 113BB(1) applies to the certificate, containing no suitability information indicating that the person to whom the certificate is issued—(i) is barred from regulated activity relating to children or to vulnerable adults, or(ii) is subject to a direction under section 128 of the Education and Skills Act 2008 or section 167A of the Education Act 2002,the Secretary of State may inform the person who made the request that the certificate was such a certificate.(5) If no certificate has been issued, the Secretary of State must inform the person who made the request of such other matters relating to the processing of the application as the Secretary of State considers appropriate.
(6) Subject to subsections (2) to (4), nothing in this section permits the Secretary of State to inform a person who is acting as the registered person in relation to an application under section 113A or 113B of the content of any certificate issued in response to the application.
(7) The Secretary of State may refuse a request under subsection (1) if it is made after the end of a prescribed period beginning with the day on which the certificate was issued.
(8) In this section—
“central records” and “relevant matter” have the same meaning as in section 113A,
“suitability information” means information required to be included in a certificate under section 113B by virtue of section 113BA or 113BB.
(9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in that paragraph as in that Act.””
Lord Henley
My Lords, in moving Amendment 73 I shall speak also to Amendment 82. Within this group we shall also consider Amendment 75, tabled by my noble friend Lord Addington, and Amendment 75A, in the name of the noble Baroness, Lady Royall, and others. It might assist the Committee if I first set out what Clause 79 intends to do before speaking to the government amendments in this group, as this is the first amendment in Chapter 2 of Part 5 of the Bill.
At present, a criminal record certificate is simultaneously sent to the individual applicant and to the registered body that countersigned the application, for example an employer or sports governing body. This means that the employer or voluntary organisation gets to see any conviction or other information included on a certificate before the individual applicant has an opportunity to contest the accuracy of any conviction information or the accuracy or relevance of any non-conviction information. The Government’s independent adviser for criminality information management, Mrs Sunita Mason, concluded that this approach was unfair to the applicant. We agree, as indeed does the Information Commissioner. Clause 79 therefore provides that henceforth a criminal record certificate should be sent only to the applicant. This allows the applicant to review and, where they deem it necessary, challenge any information on the certificate before it is passed to an employer, prospective employer or voluntary organisation. This change will also allow the individual to approach a prospective employer and provide background about why a particular record exists or provide further explanation or context that might not be apparent directly from the disclosure.
Some sports governing bodies and voluntary organisations, such as Girlguiding UK, have expressed concern about the impact of this change on their recruitment processes. I was able to hear about these concerns at first hand when I met a delegation of bodies referred to in the first amendment led by my noble friend Lady Heyhoe Flint, and I know that yesterday she had further meetings of a constructive nature with officials in my department. I can assure your Lordships that in implementing this change, we want to minimise any disruptive effect it may have on current recruitment processes. Having listened to the representations from the England and Wales Cricket Board, the Football Association, Girlguiding UK and others, we recognise that Clause 79 as originally conceived did not get that all-important balance right, which I have referred to on a number of occasions.
We believe that the government amendments in this group address the concerns that have been raised. Amendment 73 provides a clear legislative basis to enable a registered body to track the progress of an application online and be informed about its status. This tracking facility would also enable the registered body to ascertain whenever a certificate is clear: that is, that it contains no convictions or other police information. This is a significant point, as currently some 92 per cent of criminal record certificates are clear, so such a facility will ensure that in the overwhelming majority of cases the recruitment process can proceed with confidence, even if there is some small delay in the certificate being sent by the applicant to the registered body. Government Amendment 82 ensures that the same arrangements will apply to the up-to-date arrangements.
For the one in 10 cases where a criminal record certificate is not clear, the registered body will know the date on which the certificate was issued and, as such, will be able to take appropriate follow-up action if the applicant does not provide a copy of the certificate within a few days of that date. I should stress that there is no reason why sports governing bodies and others should not continue to run their recruitment processes from a central team. It follows that there is similarly no reason why these changes should require the local football coach or scout leader to become involved in individual recruitment decisions.
I also want to allay concerns that this change will put children at greater risk. That is absolutely not the case. Where a position falls within the scope of regulated activity the employer or voluntary organisation will be obliged, as now, to undertake a barring check before a person takes up that position. In any other case—that is, where the position does not fall within the regulated activity—it will be for the employer or voluntary organisation, again as now, to undertake a proper risk assessment and consider whether it is safe for a new employee or volunteer to be given supervised access to children before all the appropriate vetting processes have been completed.
Having spoken to the two government amendments, the first of which I will move formally in a moment, I will wait to hear what my noble friend Lord Addington and the noble Baroness, Lady Royall, or perhaps the noble Lord, Lord Rosser, have to say about their amendments before I respond to them. I beg to move.
Lord Addington
My Lords, the amendment tabled in my name and that of my noble friend Lady Heyhoe Flint addresses a concern that has been raised by the major sporting bodies. As the Minister said when speaking to his own amendment, there is a concern that the central recruitment process, which they are happy with and reasonably confident about, would in effect be reduced in power by the fact that there will now be an individual process.
By bringing forward Amendment 73, it is clear that the Government have been listening to an extent, but the major sporting bodies are still worried. They are concerned that the process being proposed by the Government, even with the tracking facility described by the noble Lord, will allow the way in for certain types of fraud and pose problems of individual disclosure that will affect the volunteering process. There is also a fear that the individual presentation of a certificate will get in the way of a centralised system that has become used to and confident about dealing with situations where, if there is a disclosure on a criminal record certificate that does not affect an individual’s ability to conduct a voluntary activity, it will actually not be disclosed. Such a disclosure might involve long expired convictions of a criminal nature that have no effect on the individual’s voluntary coaching activity. Offences such as those acquired after Saturday night boisterousness or other minor offences against property that go back a long way might become relevant. That is one of the problems the sporting bodies have with this. For instance, some 15 per cent of applicants into football have these types of convictions, or perhaps even more serious ones, but they are certainly not regarded as being that relevant to the safeguarding of individuals.
Also, although the Minister thinks that he has dealt with this, there are still concerns about there being a built-in process of delay—potential stalling. Stalling might come down to the volunteering. One example is the volunteer who has only just applied for this because they have increased their position in an organisation, they have been associated with the club for a long time, or they are an ex-player who has come back in a coaching role. That person makes a presentation to that club, goes to the central body and starts to stall. This is a person who is intent on doing something bad. How does one chase them up? When do you know that you should do something? When does a central authority know it should start chasing? We propose a maximum two-week delay between the application coming through and being informed that something has gone on.
That gives a timeframe, which addresses one of the major concerns about inaccuracy on those applications. It is said that only 0.06 per cent of all applications are wrong, so we have something here that involves a very small number. A two-week delay before having to make this announcement would give you a chance to look at this and say that there was a mistake. It would give you a finite period during which you can find out what is going on. It would remove from someone the responsibility to have to stall so that the person does not have access to the positions of authority that we discussed earlier. This is what the application process is for.
Sports governing bodies are very concerned to have a system that works and that they are confident about. That system is being undermined and interfered with, maybe not as much as the Government’s amendment initially proposed, but they are still concerned. I look forward to hearing what the Minister has to say.
Baroness Heyhoe Flint
My Lords, I will speak to the Government’s Amendment 73 and in support of what my noble friend Lord Addington has said.
I sincerely thank the Minister for meeting me and sports colleagues and Girlguiding UK and for such a constructive discussion. However, while I am sure that the new amended clause will produce a system that works quickly and efficiently for the vast majority of people—92 per cent was mentioned—there remains, particularly on the sporting side, a concern about governing bodies’ ability to deal effectively with the remaining 8 per cent.
Amendment 75, moved by my noble friend Lord Addington, recognises that organisations that take on the responsibility for providing safe environments for children need information about those individuals who may pose a risk. The amendment does not challenge the Government's very sensible aim, which I share, of allowing individuals to dispute inaccurate information. I believe that that period, whether it is 10 days or two weeks, might be appropriate.
There are two very sensible reasons to continue sending copies of disclosures to the registered body. The first is that organisations can handle individual cases more effectively if they know whom they are dealing with. The Government's amended system highlights content but does not reveal the details. At present the governing bodies of sport are able to take appropriate action based on an assessment of the individual's unique criminal record. Where the criminal record poses no threat to children, the individual will be approved. Where further information is required to make that judgment, the governing body can make discreet inquiries until it is able to make an assessment. Where information clearly gives cause for concern, measures will be put in place to remove that individual from the sport, but only once the information is confirmed as accurate.
The Lord Bishop of Newcastle
My Lords, I, too, wish to register some anxieties about the proposals, and support some of the comments made by the noble Baroness, Lady Heyhoe Flint. As we know, under the Bill only one CRB certificate will be produced and provided to the individual concerned. That is a significant change to the current well established practice whereby a replica certificate is provided to the appointing body. The report that made the recommendation was based largely on the difficulties caused when inaccurate information has been disclosed. However, the Criminal Records Bureau, as the noble Lord, Lord Addington, said, reports that inaccurate information has been disclosed in just 0.07 per cent of cases. I do not believe that such a small number of admittedly distressing cases could justify such a significant change. The CRB also says that many more certificates are returned marked “undeliverable” when addressed to the applicant than when they are addressed to the registered body. If only one copy is to be sent to the applicant it risks, at the very least, further delay in any appointment process. Are we as registered bodies to be totally dependent on the individual—volunteer, in our case—concerned?
I am anxious that the Bill might miss the opportunity to set up a safe and workable system. I speak for safety in our churches, and my belief is that appointing authorities need to have access to enhanced CRB disclosures for all those who will have significant contact with children or vulnerable adults, not just those who are engaged in regulated activity as narrowly defined in the Bill. Repeated abuse tragedies highlight the importance of carefully scrutinising those who seek to work with children. We have a very particular responsibility in the church to ensure that robust and safe procedures are in place for recruitment and afterwards. Access to CRB disclosures is not the only element in the process, but it can be crucial in a small number of cases. I, too, hope that the Minister might think again about this particular part of the Bill.
Lord Rosser
My Lords, we also have an amendment in this group, Amendment 75A, the thrust of which is very much in line with the amendment in the names of the noble Lord, Lord Addington, and the noble Baroness, Lady Heyhoe Flint. The effect of our amendment, too, is to delete the Bill provisions to remove the requirement for the CRB and enhanced CRB certificates to be sent directly to the employer as well as the employee, and instead to provide for certificates to be sent to employers two weeks after being sent to the individual applicant, unless that applicant has lodged an appeal.
As has been said, currently organisations and companies providing work with children or vulnerable adults receive a copy of the regular or enhanced CRB check when it is sent to the individual applicant. The Government propose to scrap these existing provisions on the grounds that they do not leave individuals with a chance to appeal or query information on the record. Our view is that the Government’s proposed changes would place unnecessary burdens on organisations, would damage the voluntary sector—as has been said, by potentially deterring volunteers with irrelevant criminal convictions from applying—and would also put children and vulnerable adults at greater risk by creating loopholes in the system that would be open to exploitation, to which reference has already been made.
Currently of course, many larger organisations process their CRB checks centrally through qualified professionals. The CRB checks are sent directly to the central departments at the same time as being sent to the applicant, which enables swift processing of applications and minimises delays in employment. However, there are now concerns about the additional resources and time that will be spent chasing CRB checks with the individual under the provisions of this Bill. Perhaps more importantly, by requiring the individual applicant to submit their CRB certificate to the organisation, there is major concern within the voluntary sector that the Government’s proposed changes could deter volunteers with minor and irrelevant criminal records from coming forward.
The Minister has stated that the Government envisage that the applicant would simply be informed of the central address to which they should send their certificate and would pass it directly to them. However, that will not be the case in all organisations and will only add to the delay in processing applications. On top of that, it still does not address the point that, if the CRB check is revealed to the individual before being submitted to a central bureau in the organisation, it may prompt the individual—wrongly—not to proceed with the application on the basis of wrong assumptions about the relevance of the information on that record.
Finally, we believe that changes to the CRB disclosure process will create a system that is more open to exploitation from the small minority of individuals who should not be seeking access to children and vulnerable adults. Organisations such as Fair Play for Children and sports associations all point to examples of the extent to which predatory individuals will go to manipulate and exploit procedures in place. I will not repeat any of those, since the one I have is the same as the one referred to by the noble Baroness, Lady Heyhoe Flint.
The Government’s amendments today propose to address the problem by sending an electronic notification to the employer, once the certificate has been issued to the applicant, where the certificate is clear of any previous convictions or police information—as is the case, as has already been said, in 92 per cent of cases. However, we do not believe this goes far enough in addressing the problems that have been identified. Organisations will still have to chase certificates and delays will still occur in the 8 per cent of disclosures that are not clear. Applicants will still be required to submit certificates themselves, and therefore the potential to deter volunteers remains, for the reasons I have mentioned. In the minority of cases that are not clear of offences, the requirement for the individual to submit the check still leaves open the possibility of fraud and abuse by individuals.
Our proposed amendment would simplify the system while still allowing reasonable opportunity for the applicant to appeal any information. Our proposal is almost identical, as I understand it, to the one proposed by the noble Lord, Lord Addington, in that it would provide for a delay between the time that the certificate is sent to the applicant and the time it would be sent to the organisation and the employer. The only difference is that we have proposed a delay of two weeks, whereas the noble Lord, Lord Addington, has proposed a delay of, I think, 10 working days, so we are talking about the same period of time in reality. Our amendment also ensures that, should the applicant lodge an appeal within that period, the CRB would suspend disclosure to the organisation for the duration of that appeal.
The line of argument running through the Government’s changes to existing safeguarding arrangements in this Bill is one of what they describe as proportionality and common sense—or, to use the Minister’s favourite word, balance. However, the Government’s approach to CRB check disclosures is wildly disproportionate. According to the Criminal Records Bureau—and this point has already been made on more than one occasion—just 0.06 per cent of disclosures have inaccuracies in them and some of these are simply a case of a misspelled name rather than a serious matter for appeal. The reality is that the Government are proposing changes that will increase bureaucracy for organisations, deter volunteers and create a potential loophole to be exploited by highly manipulative individuals; all apparently for the sake of 0.06 per cent of CRB checks. Our amendment addresses these issues.
Lord Henley
My Lords, the first point I had better make clear—as I sensed a degree of doubt in my noble friend Lord Addington’s amendment—is that the centralised system will still be there. I hope we made that clear to the various bodies that he and various other noble Lords brought to the Home Office to discuss these matters. I started off finding it rather difficult to understand precisely what his and my noble friend Lady Heyhoe Flint’s concerns really were. He talked about the possibility of individuals stalling. I suppose he was trying to make a “the cheque’s in the post” type of argument, which is probably one of the commonest lies we come across—the constant delay of one particular individual. I honestly do not think that concern is there, because of the various safeguards that I want to get built in.
I also want to make clear the problem with the two amendments—which are broadly similar but slightly different—and why they are not necessary and are possibly too absolutist in insisting that something should happen after precisely 10 days or after precisely 14 days. I am concerned that it undermines the core principle that underpins this clause. I agree that there should be an expectation on the recipient of a criminal record certificate to decide quickly whether to dispute any information on that certificate. However, that may not always be feasible, for perfectly valid reasons such as that the person concerned is on holiday or unwell. There could be other reasons behind it. These amendments make absolutely no allowance for such situations. As soon as the clock has elapsed, a copy of the certificate has to be issued to the registered body.
Amendment 75 also seems to assume that any disputes would be resolved quickly. I know noble Lords all say this involves only a very small number of people—nought point whatever the figure is—but it is a number of individuals and it concerns their individual liberties. That is something that we should be aware of. Although almost 98 per cent of disputes, I understand, are resolved within 21 days, some inevitably take longer and Amendment 75—and, I imagine, Amendment 74 —makes no allowance for this. I also add that the changes we are bringing in with the new system of portable criminal record certificates will substantially reduce the number of new certificates in the system, perhaps by as much as 50 per cent once the new system matures. The whole aim of these changes is to enable, for example, a teacher, classroom assistant or whoever has obtained a criminal record certificate for employment purposes to take that certificate along to the local football club, Scout group or wherever he wants to work. In such circumstances, all that the voluntary organisation would need to do is to check the existing certificate against the online system. There it will be told immediately whether that certificate is the most recent and whether there is any new information; if there is none, a decision could be taken there and then to decide whether to accept the person as a volunteer. I believe that that will significantly speed up the process for voluntary organisations in the great majority of cases. Given this new way of working, it would simply no longer be appropriate or necessary to issue a fresh certificate if someone takes up a secondary role working with children or vulnerable adults.
Lord Rosser
I notice that the Minister said that he would continue discussions with his noble friend and sporting organisations. Does that mean that he does not intend to discuss it with ourselves on this side, even though we have tabled a very similar amendment?
Lord Henley
The noble Lord has taken offence because I accidently used the words “noble friends” and did not include the entire House. I said that I would write to everyone—I will certainly include the noble Lord in these discussions if he feels he is being left out. I made the point purely because it was my noble friend who brought the sporting organisations to see me, having made a request. I am not aware that the noble Lord came along with any sporting organisations—or, if he did, I did not notice them. But anyway, I will include him in this offer. I would be more than happy to see him.
Lord Rosser
The Minister knows that I was not there with any sporting organisations, but I have an amendment down, which I take it that the Minister is not terribly enthusiastic about, which is very similar to the one tabled by the noble Lord, Lord Addington. The Minister has made it clear that he is prepared to discuss the amendment with the noble Lord, Lord Addington, so I am not quite sure why he originally intended to exclude ourselves.
Lord Addington
The noble Lord would of course add to any gathering that we had, and I hope that he comes at least as my guest to any meeting.
Lord Henley
I was not trying to exclude the noble Lord, Lord Rosser. I just thought that he was taking offence unnaturally, and in a manner that surprised me, because it was by a slip of the tongue that I referred to “my noble friends”. I could have included everyone; I included the sporting bodies. I look forward to seeing the noble Lord.
On the basis of what I said, I hope that as I move my amendments other noble Lords with amendments down will not want to press theirs.
Baroness Doocey
“(3) In section 113B of the Police Act 1997, after subsection (4) insert—
“(4A) Prescribed purposes under subsection (2)(b) include licensing authorities determining the fitness of—
(a) taxi drivers to be licensed in London under section 8 of the Metropolitan Public Carriage Act 1869 and paragraph 25 of the London Cab Order 1934;(b) private hire vehicle drivers to be licensed in London under section 13(2)(a) of the Private Hire Vehicles (London) Act 1998;(c) taxi drivers to be licensed outside London under section 47 of the Town Police Clauses Act 1847 and section 59(1) of the Local Government (Miscellaneous Provisions) Act 1976; and(d) private hire vehicle drivers to be licensed outside London under section 51(1) of the Local Government (Miscellaneous Provisions) Act 1976.””
Baroness Doocey
My Lords, the purpose of this amendment is to ensure that licensing authorities have access to information disclosed in enhanced criminal records checks, for the purpose of licensing the drivers of taxis and private hire vehicles. I declare an interest as a Member of the London Assembly.
Local licensing authorities must determine whether an applicant is a fit and proper person to hold a licence or whether public safety would be compromised by issuing a licence to a particular individual. Licensed taxis and minicabs provide a vital service in many parts of the country. Both are crucial to the vibrancy and sustainability of the night-time economy. They are particularly important late at night, as other services wind down or become less frequent, but there can be risks. This is why Transport for London, which is responsible for licensing in London, has launched a “Safer Travel at Night” campaign, which stresses the importance of using a licensed taxi or minicab and warns that using an unlicensed car is the same as getting into a stranger’s car.
Anyone who uses a taxi or minicab is effectively putting their faith in the checks that the licensing authority has made into the background of their drivers. Department for Transport figures suggest that women aged 16 to 20 undertake the greatest number of trips in taxis and private hire vehicles. These women would not fall into the legal definition of a vulnerable adult, but they are vulnerable when they get into a taxi or a licensed minicab late at night, particularly if they have been drinking. To ensure the public's confidence in licensing, authorities rely heavily on the information disclosed in an enhanced criminal records check. This provides the authority with valuable information relating to offences and so-called soft intelligence on the interaction between applicants and the police or the judicial system that is not available under a lower level of disclosure. It allows the authority to consider information on the balance of probabilities and to look for patterns of behaviour, which is very important. In some instances, there may never have been any convictions or cautions. However, the additional information provided through an enhanced disclosure can often show a pattern of behaviour that raises alarm bells with the police force and/or the licensing authority.
Earlier this year, licensing authorities were informed by the Criminal Records Bureau that enhanced criminal records checks should no longer be sought for taxi and private hire drivers unless they transported children or vulnerable adults under a contract. That move by the Criminal Records Bureau would end a system that has operated well for the past 10 years in which authorities have been able to base their decisions on information from an enhanced disclosure. In London, approximately 10 per cent of applications for a licence were turned down in that period on the basis of something picked up from the enhanced disclosure. In London alone, that amounted to at least 240 licences annually that were not issued on the grounds of public safety.
The bodies representing the taxi trade recognise the importance of the information provided by an enhanced disclosure to the reputation of their members. The Suzy Lamplugh Trust and London TravelWatch both agree with licensing authorities that the information in enhanced disclosures is crucial to ensuring public safety. This amendment would address their concerns by amending Clause 79 to add at the end a subsection inserting in the Police Act 1997, as amended, a clarification that the prescribed purposes for which an enhanced criminal record check can be sought include the licensing of taxi and private hire vehicles in London and by other licensing authorities in England and Wales. I beg to move.
Baroness Royall of Blaisdon
My Lords, I support the noble Baroness in her amendment. It seems extraordinary that taxi companies are going to have to desist from requiring enhanced disclosures. I completely agree with her point that it is not just children and vulnerable adults at risk; many young women, especially when they have had a drink, are extremely vulnerable. I fully support the noble Baroness.
Lord Harris of Haringey
My Lords, I think that the noble Baroness, Lady Doocey, has put forward an extremely helpful amendment. The reason for thinking that is because, tragically, there have been too many instances when minicab drivers, and indeed licensed taxi drivers, have turned out to be a danger to those whom they ferry. Those instances are comparatively rare, and of course it is much safer to use a licensed vehicle than otherwise, but the danger remains.
My only regret is that the noble Baroness, in her normal ingenious way, has not found a way to encompass what I consider to be the increasingly dangerous fraternity of rickshaw drivers in London. I am sure that a few extra words would have enabled us to have a licensing regime for rickshaw drivers on top of all this, with the added protections of enhanced record checks. I appreciate that I have now caused a flurry on the Front Bench while the correct answer as to why that is incredibly difficult is explained to the Minister. However, as I think that the noble Baroness, Lady Hamwee, is about to speak, I am sure that he will have a chance to mug up on the subject.
Baroness Hamwee
My Lords, perhaps I will give the Minister thinking time, but I was going to say that rickshaw drivers present more dangers than those which are the subject of this Bill—the noble Lord has referred to the small number of very horrific examples.
I support my noble friend. There have been important steps in licensing over the past few years, certainly in London, but legislation cannot remove every risk. A perpetrator may not previously have been caught or may just be starting on a course of action. However, the more tools that are given to employers and to the organisers of different activities, the better—within the overall objective of a sensible regime that is not overbureaucratised.
Perhaps I might make one comment, which I wondered whether I should come in with in a previous discussion when I think the Minister was accused of being unimaginative about the amendments. I can tell the Committee that at the meeting which I attended with the various sporting groups, which has been referred to, both our Minister and Lynne Featherstone made it absolutely clear that an employer or an organiser cannot abdicate responsibility to an unthinking bureaucratic process. I, for one, was very impressed at that meeting by the common-sense attitude being displayed. We were being reminded that we cannot do everything through legislation. We will do as much as we can, but we cannot do everything.
Baroness Farrington of Ribbleton
My Lords, should the noble Baroness, Lady Doocey, need additional support, I worked with the noble Baroness, Lady Gardner of Parkes, on extending the checks and the licensing to the minicabs. For some time, some of the other cab drivers resisted licensing minicab drivers. I am quite sure that the Minister will agree that, should the noble Baroness, Lady Doocey, who has presented her case strongly and got all-round support, need additional support, then I can recommend the noble Baroness, Lady Gardner of Parkes.
Lord Henley
My Lords, such is the benign nature of my speaking note—I am not even sure that “Resist” appears on it, as sometimes is the case—that I thought I might be able to get through the whole of this debate without an intervention from the noble Lord, Lord Harris. This was going to be a little test to see whether I could manage that. Unfortunately, he then mentioned rickshaw drivers and associated problems. I had a quick word with my noble friend Lord Attlee, who assures me that this matter was hotly debated during the Localism Bill. I am sorry that I was not there for that, but I will remember the occasion and make a point of looking up those debates. I have a picture in my mind of the noble Lord, Lord Harris, setting off home this evening to Haringey with the long-suffering rickshaw driver.
Lord Henley
Anyway, my Lords, I express my gratitude to my noble friend for moving this amendment. She is seeking to amend the Police Act 1997 to make taxi and private hire vehicle drivers eligible for the enhanced criminal record checks. The legislation currently provides that, in the majority of cases, they are eligible for only standard criminal record checks. I assure my noble friend that we have had representations on this issue from the Mayor of London and Transport for London, and at this stage we are actively considering whether a change in the law is needed. In examining this issue, our priority obviously will be to ensure the safety of the travelling public. Further, we hope to come to a decision on this issue very soon indeed—certainly in advance of Report. I undertake to write to my noble friend and, on this occasion, to all other noble Lords who have taken part in this debate when an announcement is made.
I also offer an assurance on one small technical point. Were we to conclude that it was appropriate that all taxi drivers and private hire vehicle drivers should be eligible for that enhanced criminal record check, we could effect that approach through secondary legislation. On this occasion, primary legislation would not be needed as we could do that under the Police Act 1997. Briefly, I say to my noble friend that we are alive to this issue and intend to come to a very early decision that will certainly be before Report, which we have worked out is not likely to be before the beginning of February. I hope, therefore, that on this occasion my noble friend can withdraw her amendment and await that sympathetic letter, which she will get in due course.
Baroness Doocey
My Lords, I thank the Minister for that sympathetic response and I look forward to receiving the letter. I hope that this can be sorted out because it is a very serious matter. Most parents, in my experience, say to their young children, “Whatever you do, make sure that you get into a licensed taxi or a licensed minicab so that you will be safe”. I am sure we all want to make sure that it is kept that way. With that assurance from the Minister, I beg leave to withdraw my amendment.
Lord Addington
“Criminal conviction certificates
After subsection (2A) of section 112 of the Police Act 1997 (criminal conviction certificates) insert—“(2B) In carrying out the duty specified in subsection (2A), the Secretary of State must wait ten working days after sending a copy of the certificate to the applicant before sending a copy of that certificate to the registered person.””
Lord Addington
My Lords, I will make a speech consisting merely of two questions that I did not get a chance to ask. The grouping session occasionally catches us out, no matter how long we have been here.
Both my Amendment 75 and Amendment 75A, which were considered earlier, have limitations in them. Mine has 10 working days and the noble Lord’s amendment has two weeks. If that was made more flexible, would some of the objections to these amendments be removed? There might be something there, as 10 working days probably is more flexible, but does this slightly different definition of the time-lag make these more workable? It is workability that we are dealing with.
Also, can we have a little more consideration of the idea of the disclosure process? As proposed in the noble Lord’s amendment, if you have something which is irrelevant to the person, there may still be the concern of safety with your CRB check. Can the noble Lord give a bit more consideration about that process of disclosure? At the moment, one would be told that there was something on the check but not what it is. I wonder if the noble Lord could give a little consideration to that. I beg to move.
Lord Henley
My Lords, on the first point I would certainly be more than happy to consider a greater degree of flexibility. I am not sure whether I would accept that what my noble friend was offering—10 working days, rather than 10 days—actually adds much in the way of flexibility, but if he comes forward with some ideas, we would look at them. I can say no more than that, but it is flexibility we are looking at, rather than the precise duration.
On the second question, disclosure would be, again, a matter that we could discuss at the useful meeting I am hoping to have with my noble friend, at which we are very much looking forward to seeing the noble Lord, Lord Rosser, as well.
Lord Addington
I thank my noble friend for that response, and I beg leave to withdraw the amendment.
“Additional grounds for refusing an application to be registered
After subsection (3) of section 120AA of the Police Act 1997 (refusal, etc. of registration on grounds not related to disclosure) insert—“(4) Subsection (6) applies if an application is made under section 120 by an individual who—
(a) has previously been a registered person; and(b) has been removed from the register (otherwise than at that individual’s own request).(5) Subsection (6) also applies if an application is made under section 120 by a body corporate or unincorporate which—
(a) has previously been a registered person; and(b) has been removed from the register (otherwise than at its own request).(6) The Secretary of State may refuse the application.””
Baroness Stowell of Beeston
My Lords, government Amendment 76 inserts a new clause into the Bill that will strengthen the current powers of the Criminal Records Bureau to refuse to register an individual or organisation as a registered body. A registered body is a body or organisation registered by the bureau as being responsible for the countersignature of applications for criminal record certificates. Such a body will typically be a large employer or voluntary organisation—for example, the England and Wales Cricket Board or the Scout Association.
None the less, beyond the minimum requirements for a body currently to be registered by the Criminal Records Bureau, as set out at Sections 120 and 120ZA of the Police Act 1997, the bureau has the power to refuse registration only if it has concerns about an organisation’s ability to properly protect sensitive information that would be disclosed on a criminal record certificate.
Some 4,000 bodies are registered with the Criminal Records Bureau and all must adhere to their conditions of registration, which provide for a framework to ensure that registered bodies operate in a fit and proper manner. These conditions include requirements that application fees are paid within 15 days of invoice; that the organisation can demonstrate that it makes every effort to check that the position being applied for by an individual is eligible for a criminal record check; and that the registered body has verified the identity of the applicant before submitting the application.
The most common reason for the Criminal Records Bureau to be forced to cancel a registered body’s CRB registration is the non-payment of fees. This is usually where the organisation has continually failed to make the necessary payments to the bureau for the submission of applications to it and has repeatedly failed to pay its arrears or made any substantive offer to do so.
Of course, the Criminal Records Bureau will always seek to work with registered bodies as far as possible to address any short-term difficulties where there is an apparent breach of the conditions of registration and before considering any suspension or cancellation action. However, there is a gap in the powers available to the bureau. In practice, this means that an organisation that has previously failed to meet the conditions of registration, such as the non-payment of fees, and has had its registration cancelled can simply re-register, provided that it meets the basic criteria required under Sections 120 and 120ZA of the Police Act. Quite simply, this amendment will close that gap by extending the current powers to allow the Criminal Records Bureau to refuse to register a body that has previously been registered and subsequently removed—for example, due to a breach of the conditions of registration.
For any noble Lords who may be concerned that such organisations will therefore no longer be able to carry out criminal record checks, I assure them that the new clause will not impact on an organisation’s ability to apply for criminal record checks—that is, the original organisation that might use a registered body as an agent by which to apply for a check against it. In such circumstances, the organisation will be able to continue to access the Criminal Records Bureau service through another organisation that is registered satisfactorily with the bureau, typically referred to as an umbrella body. I beg to move.
Baroness Stowell of Beeston
My Lords, government Amendments 77, 78, 79, 80 and 81 make two technical changes to the provisions in Clauses 81 and 82. First, Amendments 79 and 80 provide that a request by the subject of a criminal record certificate, or a person on their behalf, to the Secretary of State or the independent monitor to challenge the accuracy of the information on such a certificate should be made in writing. This is to bring these processes in line with other provisions in Part 5 of the Police Act 1997.
Secondly, Amendments 79 to 81 will ensure that the updating service, which is being introduced by Clause 82, will continue to operate in a given case where a new criminal record certificate is issued following a successful challenge to the accuracy of the information contained on the original certificate. The updating service can be triggered by an application for a criminal record certificate. These amendments will ensure that the service is not unintentionally terminated following the issue of a fresh certificate. I beg to move.
“( ) Condition C is that—
(a) the certificate was issued under section 117(2) or 117A(5)(b), and(b) the certificate which it superseded—(i) was subject to up-date arrangements immediately before it was superseded, and(ii) would still be subject to those arrangements had it not been superseded.”
Lord Henley
“(7A) If up-date information is given under subsection (7)(a)(i), (7)(b)(i) or (7)(c)(i) and the certificate to which that information relates is one to which subsection (7B) applies, the up-date information must include that fact.
(7B) This subsection applies to a certificate which—
(a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records,(b) in the case of a criminal record certificate, is as described in section 120AC(3), and(c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4).”
Lord Henley
My Lords, I spoke to this amendment with Amendment 73. I beg to move.
“Inclusion of cautions etc. in national police records
After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984 (recordable offences) insert—“(4A) In subsection (4) “conviction” includes—
(a) a caution within the meaning of Part 5 of the Police Act 1997; and(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.””
Baroness Stowell of Beeston
My Lords, Amendment 83 will provide parity with convictions for the recording of cautions, reprimands and warnings on the police national computer. The names database on the PNC contains the national police record of all convictions for recordable offences. It also contains details of cautions, warnings and reprimands. It is this database which is searched by the Criminal Records Bureau when it receives an application for a criminal record certificate. In the case of an application for an enhanced criminal record certificate, a separate search is also run against the police national database, which contains non-conviction information held by local forces.
Clearly, it is essential that the police national computer holds all relevant records. The current position is that cautions, reprimands and warnings are entered on to the PNC by the police using their common-law power to do so, whereas the recording of convictions is expressly provided for in Section 27 of the Police and Criminal Evidence Act 1984. The amendment will simply put the recording of cautions on the same statutory footing as that which applies to convictions. I hope that noble Lords will agree that this is a sensible tidying-up exercise, and I commend it to the Committee. I beg to move.
Life Sciences
(12 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat a Statement made in another place yesterday by my right honourable friend the Secretary of State for Health.
“Mr Speaker, the life sciences industry is one of the most promising areas for growth in the UK economy. It has consistently shown stronger growth than the UK as a whole. It accounts for 165,000 UK jobs and totals more than £50 billion in turnover. Pharmaceuticals alone account for more than a quarter of our total industrial research and development spend. Global pharmaceutical sales are predicted to grow by up to 6 per cent a year in the coming years, and in emerging economies medical technology is achieving growth rates of more than 12 per cent. A flourishing life sciences sector is essential if we want to build a more outward-looking, export-driven economy. The partnership between industry, the NHS and our outstanding universities is not just essential to economic growth—it will benefit millions of future and current NHS patients, fuelling more rapid development of cutting-edge treatments and earlier access to those treatments for NHS patients.
Like many industries, the life sciences industry is undergoing rapid change. The old big pharma model of having thousands of highly paid researchers working on a pipeline of blockbuster drugs is declining. A new model has emerged, one that is more about collaboration, the outsourcing of research and early clinical trials on patients. Excessive regulation can mean that the uptake of new treatments and technology is slow. That is a challenge felt acutely by an industry that sometimes feels that the return is not there quickly enough to satisfy investors. It is felt even more acutely by patients, who understandably expect that they should be able to access the latest and most effective treatments and that new innovations in care should be adopted rapidly by the NHS.
We have a leading science base, four of the world’s top 10 universities and a National Health Service that is uniquely capable of understanding population health characteristics. However, those strengths alone are not enough to keep pace with what is happening. We must radically change the way we innovate and the way we collaborate. The life sciences strategy that we launched yesterday, alongside the NHS chief executive’s review on innovation, health and wealth, sets out how we will support closer collaboration between the NHS, industry and our universities, driving growth in the economy and improvements in the NHS. All the documents have been placed in the Library.
Among other key measures, we will set up a new programme between the Medical Research Council and the Technology Strategy Board to bring medical discoveries closer to commercialisation and use in the NHS. There are many medical products being developed to treat patients. The cost of developing them is high because they take a long time to develop and test. Investors want to see at least some evidence that the products might work in people and robust validation of the quality of the research and development work being undertaken, as well as of the capability of the company to bring the product to market, before they will finance the development of the products. That means that some of the best medical innovations are not making it through to patients. We are already providing investment to address that but we believe that we can do more to support the development of these products across funding organisations and the successive stages of product development, which will support the development of promising innovations and help to increase the number of treatments being made available to patients. We are therefore introducing a £180 million catalyst fund for the most promising medical treatments.
It can take more than 20 years from the first discovery of a drug until patients can be prescribed it by their doctor. We have already taken steps to address that. Through the National Institute for Health Research, we are investing £800 million in new research centres and two major translational research partnerships that will help to cut the time between the development of new treatments and their application in the NHS—from the bench to the bedside.
Now we are going further. As part of a major drive to improve innovation and access to medicines in the NHS, we are announcing proposals on a new early access scheme, which could allow thousands of the most seriously ill patients to access new cutting-edge drugs up to a year earlier than they can now. Through the early access scheme, the medicines regulator—the Medicines and Healthcare Products Regulatory Agency—will provide a scientific opinion on the emerging benefits and risks of very promising new drugs to treat patients with life-threatening or debilitating conditions for whom there are no satisfactory treatment options. That will mean that seriously ill patients of any age, who have no other hope of being treated or having their life extended, could benefit from drugs more quickly—around a year before they are licensed.
We must also ensure that we make better use of our unique NHS data capability. It is often said that the NHS is data-rich but information-poor. As a national health service, it contains more data about health than any other comparable health system in the world. However, neither the NHS itself nor scientists developing new drugs and treatments have always been able consistently to make good use of these data, or to use them to drive further scientific breakthroughs. We have seen how powerful the release of data can be. For example, South London and Maudsley NHS Trust and the Institute of Psychiatry now have access to a database covering 250,000 patients. It includes their brain scans, medical records and notes—a wealth of information, all consented to and all anonymised, that is helping them to find new answers in the fight against dementia.
We need powerful data-handling capacity and the skills to write the software to mine them. That is why we are investing in e-infrastructure, which will provide secure data services to researchers. The Clinical Practice Research Datalink is being introduced by the MHRA in partnership with NIHR and will provide a specialised service to the research and life sciences communities. Let me reassure the House that we will take all necessary steps to ensure safeguards for patient confidentiality.
We will also make sure that more UK patients get the opportunity to take part in national and international clinical trials and play a much greater role in the development of cutting-edge treatments. We believe that patients should have the right to access new treatments and be involved in research to develop new medicines. We have responded to calls from research charities and clinicians for the Government to get patients more involved in supporting research. A recent Ipsos MORI poll in June found that 97 per cent of people believe it is important that the NHS should support research into new treatments. In addition, 72 per cent would like to be offered opportunities to be involved in research trials.
We will therefore consult on changing the NHS constitution so that there is an assumption, with the ability to opt out, that data collected during a patient’s care by the NHS may be used for approved research. That would make it clear that researchers and companies with new and potentially life-saving medicines could access the data of patients and could approach patients whom they feel could benefit in order to discuss their involvement in research studies. This would encourage growth in the life sciences industry as more people and more detailed data would be available for the important trials and research needed to get breakthrough treatments used more widely.
Additionally, we have set out actions to improve incentives for investment in innovation and reduce regulatory bureaucracy. With the creation of the Health Research Agency, we will streamline regulation and improve the cost-effectiveness of clinical trials. As the NHS chief executive’s review of innovation has shown, the NHS needs to be quicker and smarter in adopting new technologies and approaches to care that can both save more lives and cut costs. Sometimes, it is a question of evidence. Until recently, we could not say with certainty that telehealth could keep people out of hospital and save lives. There was understandable reluctance among parts of the NHS and councils to invest in untried technology. However, as early results from the Whole System Demonstrator pilots show, the potential of telehealth is nothing short of remarkable, with dramatic reductions in mortality, hospital admissions, emergency visits and the number of hospital bed days. To make the most of this, we will support the NHS and work in partnership with industry and councils dramatically to spread the use of telehealth over the next five years. In doing so, we are looking to transform the lives of 3 million people in this country. We will become a global leader in the management of chronic and long-term conditions, generating massive opportunities for UK companies developing this technology. It will be innovation in practice; and we will foster other proven innovations such as fluid management technology techniques that were developed for use in high-risk surgery and critical care to help clinicians administer fluids and drugs safely.
In March 2011, the National Institute for Health and Clinical Excellence published guidance recommending that this technology should be used for patients undergoing major or high-risk surgery. Currently, it is used for fewer than 5 per cent of applicable patients despite evidence showing that it could benefit 800,000 patients and save the NHS £400 million. We will launch a national drive to make sure that fluid management technology is used in appropriate settings across the NHS. That is one example of many.
The innovation review sets out how we will address all the barriers to innovation in the NHS, whether they involve culture, leadership, training, use of information or lack of incentives and investment. We will also introduce a NICE compliance regime that will mean that medicines approved by NICE will be available on the NHS much more quickly. The plans set out in today’s strategies will help to drive the development of new technologies to diagnose and treat the most complex diseases in this country for the benefit of NHS patients. This is a strong package of measures that will support economic growth and innovation in the NHS and will drive significant improvements in patient care. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Thornton
My Lords, I thank the Minister for repeating the Statement. I, for one, certainly believed it was important that we took this Statement in the House, even if it is a day later than we might normally have done, because our great panoply of scientists, doctors and experts should have an opportunity to respond to it. It is likely that we can see the Minister’s hand in this initiative as research is one of his responsibilities and, indeed, one of his passions.
I share the Minister’s pride in Britain’s strength in life sciences. We all agree in the House that the industry needs government support and focus if its potential to contribute to the country’s industrial future and to its people is to be maximised. I also think the whole House will agree that there are huge potential benefits to British patients from closer collaboration between the NHS and the industry. We all want patients to have the quickest possible access to the latest life-saving and life-enhancing treatments. Indeed, it was for those two principal reasons that when we were in government we prioritised the life sciences sector and established the Office for Life Sciences to support an industry that employs more than 100,000 people. Indeed, we created a Life Sciences Minister—a contact point for the industry and someone of huge experience and real personal commitment to it. It has to be said that one of our criticisms of this Government is we believe that they have allowed the momentum that we established behind promoting this industry to fall away. Indeed, the unexpected closure of Pfizer earlier this year exposed the Government asleep at the wheel and was a wake-up call. Therefore, to some extent we see this as the Government playing catch-up but it is nevertheless an extremely welcome development and we wish it well.
Although the Minister is concerned about the need to lift a regulatory burden from industry, I think we all agree that proper regulation on the use of patient data is most certainly not a burden that we want to lift. We want that properly addressed. My questions are around those issues. Some patient groups have already expressed concern about the media-briefed statement from the Government and the lack of accompanying detail, so I hope that the Government will be able to give some reassurance here. Will all patients have the ability to opt out of sharing their data, even in anonymised form? Will the fundamental principle of consent form the bedrock of any new system as control of data should be possible in today’s information age? I understand that the patients’ representatives walked away from the Department of Health working group on these important matters. If that is the case, why did they do so? Does the Minister accept that he needs to work harder to uphold public confidence in this process or risk undermining trust in the whole principle? Therefore, the safeguards are very important. What safeguards will there be to ensure that patient data are stored securely? What precisely are the changes that the RHG plans to make to the NHS constitution?
Is it the case that the anonymity of data cannot always be guaranteed? If that is the case, what are these circumstances, and why not? The Minister is very familiar with this issue, as, indeed, is his noble friend Lady Northover, because in May 2002 both of them were involved in a debate on precisely this issue. It was a debate on the safeguarding of patient data. It was said in the debate:
“For example, the Gulf War-related research and the research relating to leukaemia in the area of Sellafield could not have been carried out with purely anonymised data. There has also been recognition of new variant CJD and its relation to the BSE epidemic”.
It is not appropriate to use anonymised data in that context either. It was also stated, in my view very wisely:
“Apart from the medical profession, who else will be subject to the contractual duty of confidentiality? What type of contract does the Minister envisage will be entered into by, for example, civil servants and those who act with the various agencies which may process that information? What review process for the regulations will be followed by the Secretary of State in 12 months' time? Will it be an open and transparent process? Will there be an opportunity for debate? There is also the very important issue of informing patients that their information has been processed. I believe that the Minister should spend some moments explaining how patients—or, at least, doctors—will be able to tag their medical notes in some shape or form so that it is clear that their information has been processed by researchers”.—[Official Report, 21/5/02; col. 750.]
I could not have put those questions better myself, and they are the ones that the Minister needs to address in this case.
Who will judge which companies will receive this information when they are in competition with each other? The Statement assumes a very prettily organised and co-operative world but that is not the world out there in the pharmaceutical industry. Companies are competing with each other for the research they do, its outcomes, availability and how you make it available. How will the Government judge which companies they make this information available to and what criteria will they use under those circumstances?
I wish to ask the Minister a specific question about one of our great institutions which is involved in this research—Cambridge University. It seems to me that the Government need to manage these sorts of challenges, and this is a very serious one. I have given the Minister notice that I was going to raise this question. In October 2011, the European Court of Justice, responding to a reference from a German court about the interpretation of the European directive on the legal protection of biotechnological inventions, made a judgment which will have the effect of banning the issuing of patents for embryonic stem cell research. The ruling means that existing patents involving the use of embryonic stem cells are no longer valid and that future patent applications will not be considered. Many researchers at Cambridge are concerned that the ruling could damage the entire field of research and drive much of it abroad. The ruling could act as a huge disincentive for investment as patents are important if pharmaceutical companies are to recoup their investment in clinical trials and turn a profit. It could therefore set back possible new treatments for a range of disorders from heart disease and diabetes to blindness and Parkinson’s. The ruling also leaves scientists in the contradictory position where they are funded to do research for the public good yet prevented from taking discoveries to the marketplace where they could be developed into new medicines. It would be a tragedy if our great institution of Cambridge University had to take this research abroad because of a ruling of the European Court of Justice. I would like to know what the Government intend to do about that.
I am afraid that I cannot resist making this final point. It is a great irony that while Ministers are happy to offer up other people’s data, they continue to withhold the risk register on their own reforms despite a clear ruling from the Information Commissioner to publish.
Earl Howe
My Lords, if I may I shall pass over that final remark. I am not sure that it is strictly relevant to the Statement. I was happy to hear from the noble Baroness of her support for the initiatives that we have taken and of her welcome for the measures. She said that the coalition Government had lost momentum in this area. From my perspective as a Research Minister, that is not the case. The Office for Life Sciences was an initiative of the previous Government that we eagerly continued. I pay tribute to the noble Lord, Lord Drayson, for his work in establishing the bridge between BIS and my own Department of Health. That relationship remains very active.
We recognised from the outset that a strong research base was vital for our future as a global knowledge economy. I refer both to basic research—curiosity-driven research—and research applied to the challenges that face business and public services. Despite enormous pressure on public spending, the BIS science budget of £4.6 billion a year has been protected; and in my own department the research and development budget is increasing year by year over the period of the spending review. In the current year it is just over £1 billion. That shows our commitment to the sector.
The noble Baroness asked several questions. The first concerned the use of patient data. There are very clear information governance rules that will protect the confidentiality of patients. We are not changing the rules. They will apply to whatever sector a researcher may come from: the public sector, a charity or the private sector. The rules are the same. All approved research is conducted to strict ethical standards. It is subject to robust regulation. Before any data are given out about a patient, the following conditions must be met. There must be confirmation that the data requested will support the health question being researched. There must be approval from an ethics committee to ensure that the research is ethically valid, including a check on the data requested. There must be information governance checks and approvals to ensure that the recipient can receive and process the data legally to conduct their research. There must be confirmation that the data are anonymised. No data will be disclosed to a researcher unless all the conditions are met.
The NHS gives out data in anonymised form. Before they are given out, they will be checked to ensure that reidentification is not possible. The main exception is where a patient gives consent for identifiable data to be disclosed. Except in that instance, companies or other researchers who receive data in anonymised form will not be able to identify the patient. The data will be checked before they are disclosed to any company, and legal contracts for the use of the data will require all recipients to comply with strict controls on using data lawfully. The companies will be subject to spot checks.
The noble Baroness asked whether patients would be able to opt out. The answer is yes. Patients will be able to opt out of their personal electronic health record being used for research purposes in an identifiable form. Patients should tell the NHS that that is their wish. The GP will record this in the patient’s record. We have tested technical ways of delivering this and of enabling researchers to identify patients who might be able to contribute to a research project without physically searching through records. Our pilot projects have been very successful.
The noble Baroness asked how all of us can be sure that our patient data are secure. Both the clinical practice research datalink and the NHS Information Centre will hold data securely. They are governed by strict access protocols to ensure that the data are processed lawfully, including when information is disclosed to researchers. Services are subject to the highest levels of independent audit and to regular checks. The data are held in a secure data centre not connected to the internet and are managed to the highest standards of information governance. I hope that that reassures the noble Baroness.
She also mentioned the European Court of Justice ruling on human embryonic stem cell patenting. As she knows, the UK is a world leader in the research and development of stem cell therapies, and the Government will continue to support and fund this work. The judgment of the court applies only to human embryonic stem cell lines, not to other stem cell sources such as adult or induced pluripotent stem cells that are used in stem cell research and regenerative medicine. The judgment does not impact on the regulation of embryos and embryonic stem cells in the UK. However, it is a landmark judgment and we will work with BIS and the Intellectual Property Office to further explore the options on how to address the issues from the ruling. The noble Baroness will understand that the ruling is recent and it is important that we consider the implications very carefully.
Earl Attlee
My Lords, we have plenty of time but perhaps I may remind the House of the need to avoid the trap of making a detailed speech rather than asking a short question.
Lord Walton of Detchant
My Lords, I congratulate the Government on this excellent and far-sighted Statement. It was anticipated to a degree by the article in yesterday's Times by Mr David Willetts and by the Times’s first leader today that highlighted the importance of these developments. I was very glad to see that it was stressed that excellence in health service research is not entirely in the south-east of England. The leader picked out Newcastle University Medical School as another centre of excellence in this programme of research.
Some 15 years ago I chaired the House of Lords Select Committee inquiry into international investment in UK science. We found that 40 per cent of all American overseas investment in science came to the UK and 42 per cent of all Japanese investment came to the UK because of the perceived strength of the UK science base. The science base remains strong and powerful, as the Statement makes clear. However, at the time we recognised that translation of the results of the research into effective changes in patient care was inadequate. The Statement makes it clear that the Government intend to support translational research to the benefit of our community.
I will ask the Minister one or two questions. We live in an era in which genomic medicine and the results of molecular biology are being translated into new developments that may benefit patients with many severe crippling diseases and long-term conditions, not least some that are genetically determined. Genomic medicine is identifying the gene defects and medicines are beginning to be introduced that may overcome these genetic defects.
The catalyst fund is crucial. I would rather not call it a valley of death fund but a postponement of death fund, because if the drugs that are introduced as a result of this major research come to market, it is very important to recognise that in many instances the number of patients likely to benefit, particularly those suffering from rare diseases, will be small, and therefore commercial exploitation will be extremely difficult. The drugs that are now emerging are known as orphan and super-orphan drugs. The previous Government put money into a cancer drugs fund because of the expense of many of the new drugs that were being developed. Will this Government consider the possibility of developing a fund for the exploitation of these orphan and ultra-orphan drugs, because today's discovery in basic medical science will bring tomorrow's practical development in patient care?
The previous Government produced the Technology Strategy Board as a major halfway house between universities and science institutes on the one hand and commercial exploitation by companies on the other. The Statement takes that one step further with the catalyst fund. Will the Government consider funding orphan drugs for the treatment of these rare diseases?
Earl Howe
The noble Lord makes an extremely important point. He will know that the Government have already established a cancer drugs fund which is designed to enable patients to access drugs that their doctors feel they should receive but which the NHS will not otherwise fund. We are putting £200 million a year for the next three years—totalling £600 million, in other words—towards this fund. That fund is there for orphan medicines and for the treatment of rarer cancers as much as it is for more common cancer treatments. So, as a temporary device, that fund exists.
We have taken the view that the development of a value-based pricing structure for medicines should enable us to move to a situation where drugs are assessed for value in their broadest sense and priced accordingly. In that way, if the value is computed as being high for patients, the NHS will pay the corresponding price and the patient will be able to access that drug. I would, however, say that in the case of orphan medicines the work is at an early stage. It is clear that some orphan drugs are likely to be priced very high, and it is of course necessary to ensure that the value of those drugs as reflected in the price is one that the NHS is prepared to pay. As I say, we have work to do. I can update the noble Lord as time goes on in that area. However, I can tell him that this is very much within our sights.
Baroness Sharp of Guildford
My Lords, I should like to thank my noble friend for repeating the Statement and say how much I, like other noble Lords, welcome it. In so far as the new strategy being adopted gives earlier access to new drugs and new technologies for patients, it can only be a very good thing. I have a number of questions for the Minister.
Quite a few NHS hospital data are already available to researchers. One example is the link-up between Yale University and University College, London, where data on cardiac medicine are being mined and exchanged. With the NHS we have cohorts that can be followed through, which is not available in the United States. Am I right in thinking that the difference is that GP data as well as hospital data can now be mined in the same way, enabling cohorts to be followed? If so, and if we are developing these huge computerised databases, how confident can we be that they will not go the way of Connecting for Health, the £13 billion project that hit the ground well over six years behind schedule and which the coalition decided was no longer worth pursuing?
Finally, how confident can we be that these new proposals will change the trend in clinical trials? There has been a dramatic decrease in clinical trials in the UK, from something like 6 per cent of trials done in 2000 to only 1.4 per cent today. Part of the idea behind these new developments is to bring some clinical trials back to the UK. Can the Minister explain precisely how this is expected to be done, and how confident can we be that it will reverse this trend despite the advantage of the growing markets in the Far East, in particular, in attracting clinical trials?
Earl Howe
My Lords, my noble friend has asked some extremely pertinent questions. In answer to her first one, data from GP practices as well as data from hospitals are available today. However, the clinical practice research datalink, which is the new service for researchers being established under the umbrella of the Medicines and Healthcare products Regulatory Agency, will for the first time enable researchers to access very much larger banks of information on a population basis and to target their questions appropriately at the database. I do not see that there is any risk to the technological aspects of that system. The CPRD is using existing data structures in the NHS. It is not changing systems as Connecting for Health attempted to do and has done.
Will this make a difference to clinical trials in the UK? I believe that it is one ingredient of a package that will make the UK more attractive. On its own, perhaps it is not enough. When I recently visited Japan and spoke to pharmaceutical companies there they were extremely interested in this, but of course they take into account the wider picture. That has to include the fiscal environment, where we are introducing a patent box which will protect patents, at a very advantageous rate of tax, on intellectual property invented in this country. There are various incentives aside from that including the corporation tax rate, with ours being the lowest in the G7 in a few years’ time. Also, the establishment of the Health Research Authority is designed to streamline the ethical approvals for clinical trials. The establishment of the National Institute for Health Research also is designed to streamline the all-too-slow process that we have been used to over the past few years. We are determined that, across the piece, we must make this country and the NHS, in particular, the platform of choice for clinical trials in the world. I believe that this can be done, but of course it will not happen overnight.
Lord Patel
My Lords, of course I am extremely biased but I absolutely commend the Government for bringing about this strategy. It was necessary to highlight our leadership in all these areas of stem cell therapy, regenerative medicine and other areas of drug development. Those who are concerned about the development of a clinical, practice-based research data bank need not be concerned. We have developed and used such a bank for many years and it works. The unfortunate thing about it is that it has been local. We now need a nationally based clinical-practice research data bank. Such a bank helps not only with clinical research but to improve patient care. Diabetes is an example where such a bank has been used, and where it has worked it has produced improvements in patient care. Last year, for example, it reduced peripheral limb loss by 40 per cent in diabetics. The current figures show that it will probably do the same for eye complications in diabetics. I commend the Government for this strategy.
I am biased because I am a member of the Medical Research Council. I am also a chairman of Cancer Research UK’s Dundee cancer research centre, which co-ordinates clinical research, basic research and clinical practice to deliver better research. For five years I was also chair of the Stem Cell Oversight Committee and developed the stem cell bank, which is the world's biggest stem cell bank. Other countries are envious and want access to our stem cell bank. We are the only country that has clinical-grade stem cells lodged in our bank. No other country has them. It is the clinical-grade stem cells that we will need to use for therapy, and next year we will be the first country to carry out clinical trials for age-related macular degeneration using embryonic stem cells. I do not worry about the patients ruling, either. I know that as scientists we do worry—but somehow we will overcome.
One strategy that the noble Earl did not mention was that of synthetic biology—I am also excited about that, because there was a risk that we would fall behind. The strategy states that an independent panel will be established to produce a road map for technological development in synthetic biology, which is a means of sequencing the effective things that occur in plants and other areas from which drugs can be developed. There are already examples of these in the United States, which have been used there to produce drugs. We will fall behind if we do not develop our research.
The idea of developing an independent road map for synthetic biology is commendable. I therefore ask the Minister, what is the timeline for developing that road map because, otherwise, others will leapfrog over us?
Earl Howe
My Lords, I am pleased that the noble Lord mentioned that part of our initiative. As he rightly said, we have undertaken to develop a strategic road map that will set out the timeframe and actions required to establish a world-leading synthetic biology sector. That will be published in spring 2012. To oversee the delivery of the road map, we will establish a synthetic biology leadership council, co-chaired by my ministerial colleague David Willetts, the Minister for Science and Innovation, and Dr Clarke of Shell Global Solutions. I am told that the total timeline for this is 12 months. We therefore intend to move forward on this with some speed. I share the noble Lord’s enthusiasm for its potential.
Lord Brooke of Sutton Mandeville
My Lords, first, I congratulate my noble friend on having omitted a reference in his Statement to a valley of death fund. Secondly, having picked up the reference to big pharma in this welcome Statement, I called to mind the historic and dramatic decision of the late Austin Bide of Glaxo to increase the planning horizon for research in that company from five years to 25 years. The Statement makes clear the acceleration that we shall see in drug development. Can my noble friend hazard any estimate of what effect today’s announcement will have on the planning horizon of research, in the manner of the late Mr Bide’s remarkable extension?
Earl Howe
The planning horizon for research, as my noble friend will know, has always been a long one. With the increasing cost of research, particularly in later stage clinical trials, companies end up making an extremely significant investment in order to bring one molecule to the market. What we seek to achieve for big pharma in this package of measures is a sense that we in the UK have, as it were, an unrivalled ecosystem that brings together business, researchers, clinicians and patients to translate discovery into clinical use for medical innovation within the NHS. What we want them to appreciate is that the UK provides an environment and infrastructure that supports pioneering researchers and clinicians to bring innovation to the market earlier and more easily so that this country becomes the location of choice for investment. I am thinking here particularly of our proposals for setting up academic health science networks that will span the NHS. That is our ambition. I am thinking of the early access scheme for medicines, which was mentioned in the Statement. We want to break down the regulatory barriers to speeding up clinical trials that have beset the industry. For all those reasons, I should like the industry to see this as facilitating a shorter time horizon. However, we cannot do anything to get around the essential safety and quality standards that the patient and the citizen rightly insist upon.
Lord Willis of Knaresborough
My Lords, I welcome the Statement from my noble friend. I realise that other noble Lords want to get in. I should like to ask a few brief questions. First, we have to recruit patients on to trials. It is interesting that there is a proposal automatically to opt patients in to trials—or at least have access to them. How will that be achieved? Will it be achieved through this Bill? Secondly, will the £180 million catalyst fund for the valley of death replace the Health Innovation Challenge Fund that currently operates between the Department of Health and the Wellcome Trust? If not, where will the £180 million come from?
Earl Howe
My Lords, I shall answer the second question first. The £180 million biomedical catalyst fund is a completely new fund for industry. Its object is to nurture innovative technologies from the academic or commercial sector through to companies with products or technology platforms in order to attract private equity. I shall probably need to write to my noble friend with further details of where the money is coming from. It is coming from the budget of BIS, rather than my own department, and it is therefore necessary for me to ask my colleagues in BIS precisely where the money emanates from. I am happy to let my noble friend know.
The proposal to which he referred is only a proposal. We are suggesting that the public should be asked whether the NHS constitution should be changed so that patients are aware that their data, as now, can be used in anonymised form for research. Our intention is to ask more patients whether they wish to be approached for research if that research is relevant to them. As the Statement made clear, we know that more than 70 per cent of the public wish to be informed if a piece of medical research is relevant to them. Patients are keen to be involved in this. It is important to have a public dialogue about the extent to which patients may be approached so that they may know in advance that there is a possibility of a project being relevant to them. We are formulating these proposals now and it will be some time before we issue the consultation. I shall make sure that I let my noble friend know as our proposals crystallise in this area.
I can, in fact, answer my noble friend’s earlier question as to whether the Health Innovation Challenge Fund is being replaced. No, it will continue.
Agriculture: Animal Feed
(12 years, 11 months ago)
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Baroness Jenkin of Kennington
To ask Her Majesty’s Government what assessment they have made of the environmental and economic impact of feeding food waste to livestock.
Baroness Jenkin of Kennington
My Lords, I should like to start by thanking noble Lords for joining me in this debate. There are many competing events this evening and I am most grateful to your Lordships for your interest in this subject.
Nine thousand years ago, humans domesticated pigs and chickens in order to recycle waste back into food. This eliminated the problem of waste disposal and increased the total amount of food available. More recently, feeding food waste to livestock has been mired in difficulties, particularly after the outbreaks of foot and mouth disease and classical swine fever, both of which were traced to badly managed swill-feeding systems, causing billions of pounds worth of damage to the UK economy and huge distress to farmers and citizens here and abroad. In 2001, the UK Government and the EU banned the feeding of catering and domestic food waste to livestock. Coming on top of the previous controls on feeding animal by-products to livestock that followed the BSE scandal, this put an end to an age-old practice.
Those measures may have been justified in the short term but there is now a compelling case for reassessment. At a time when increasing demand for food is putting a strain on natural resources and food security, and contributing to a global food system that leaves 1 billion people malnourished, we have an obligation to produce our food in the most efficient ways available to us. Needless to say, the top priority is to reduce the amount of food wasted in the first place, but the second best option is to use unwanted food to feed livestock.
It was obviously always a bad idea to feed animal by-products to herbivorous ruminants such as cows and sheep, but pigs and chickens are monogastric species like ourselves and are naturally omnivorous, thriving on the leftovers of our own food supply system. Sterilising food waste simply by heating it has been shown to be a guaranteed way of killing pathogens such as foot and mouth and classical swine fever, rendering it a safe source of livestock feed. There is peer-reviewed evidence that feeding food waste, including processed animal protein, to pigs has measurable benefits for their health and well-being, and there is an absence of evidence that feeding PAP and/or catering waste to pigs and chickens under appropriate rigorous controls creates an undue risk. Defra officials confirm that at the time of introducing the ban the British Government did not undertake research into the environmental or economic impacts of banning the feeding of food waste to livestock. This was an extraordinary omission, and we welcome the fact that Defra has now commissioned FERA to look into this issue.
The Governments of other countries such as Japan, South Korea and China and many states in the USA take the view that this is the best way of turning food waste into a valuable resource. Instead of banning the practice, the Japanese Government assist pig farmers who wish to convert to use feed derived from food waste. Supermarkets, manufacturers and catering establishments divert their food waste for this purpose, and the resulting pork is sold at a premium as eco-pork on the same supermarket shelves from which the waste originated.
This process must obviously be conducted strictly in accordance with robust controls to prevent the outbreak of animal diseases. Collecting food waste in centralised processing plants, many of which have been established in Asia, ensures that the heat-treatment process can be electronically monitored to ensure that all food waste is properly sterilised. This gets over the fear that individual rogue farmers will bypass the heat-treatment stage, as is believed to have occurred with the outbreak of foot and mouth in 2001. Japanese farmers are thereby able to save up to 50 per cent of their feed costs, putting them at a competitive advantage over British and European producers, who must purchase commercial feedstuffs on an increasingly volatile and unaffordable world market. The vulnerability from livestock feed imports is reflected in the fluctuation in the price of soy, which has increased by almost 200 per cent in 10 years.
British pig farmers are an endangered breed. Thousands have gone out of business in recent years and more are expected to lose their farms in the future. One of the main reasons for this has been the price of wheat, maize and soy—the principal ingredients of pig and chicken food—on the global marketplace. This is largely because farmers are competing with the growing global livestock industry, as well as with people who buy these grains for their own consumption. By relying on these commodities for pig and chicken feed, the British farming sector is dependent on foreign imports. While I would like to expand on this aspect, time does not permit, and I expect it to be addressed later in the debate. Resuming the practice of recycling food waste for livestock feed would therefore be a way of increasing Britain’s food security for the future.
Anaerobic digestion is rightly promoted as an alternative to landfill that can convert food waste into energy and digestate that can be used as fertiliser. However, where food waste is fit for animal consumption, research published by Tristram Stuart in his book Waste indicates that feeding it to livestock can save up to 500 times more carbon dioxide emissions than are saved by sending food waste for anaerobic digestion. Producing pork from food waste is also several times more profitable, economically speaking.
Some types of unwanted food—namely, bread, dairy, fruit and vegetable waste—can still be legally fed to livestock as long as it has not come into contact with meat. Whereas waste producers pay in the region of £80 per tonne to dispose of food waste in anaerobic digestion, if the food waste can be separated from animal products it can be sold to farmers for roughly £20 per tonne. I understand that one food manufacturer which introduced this system recently has saved in the region of £100,000 per year.
The Food and Drink Federation has successfully promoted the diversion of food co-products and by-products for animal feed, announcing in 2008 that its members had diverted to livestock feed over half a million tonnes of food that would otherwise have been wasted. Research shows that in the UK and across Europe millions more tonnes could be salvaged in this way. Defra is now working with some supermarket chains and local authorities to ensure that more legally permissible foodstuffs can be used in this way. Sainsbury’s confirmed last week that it now collects all its bread waste from stores across Britain and diverts this for animal feed. That is much to be welcomed. Wholesale markets such as the New Covent Garden Market in London also have their unwanted fruit and vegetables collected for pig feed. Further encouragements to food companies, local authorities and farmers themselves are needed to ensure that this is replicated across the whole retail sector and beyond.
One significant advantage of this is that there is currently insufficient anaerobic digestion capacity in this country, and new plants are expensive and take time to commission. By contrast, there already exists abundant capacity for diverting food waste to livestock feed; namely, Britain’s cash-strapped livestock farmers. To aid this process, it would be helpful to have clearer data on the quantities of different types of food that are currently wasted in Britain’s food supply chain. Supermarkets do not currently make these data publicly available, and that hinders the ability of businesses and Governments to invest in the infrastructure required to divert unwanted food for livestock feed.
Under the current legal framework, it is clearly essential that foodstuffs being diverted for animal feed should be kept absolutely separate from banned animal products. The NFU and the National Pig Association rightly raise concerns that retail outlets and manufacturers would need to be able to guarantee that any food being sent for livestock feed should never have come into contact with meat or other banned food products. Retailers sell bread, fruit and vegetables to consumers every day and guarantee that these have not been contaminated by contact with meat. They are presumably capable of operating systems that can guarantee this for food going for livestock feed with the same degree of rigour.
We should consider a three-pronged action programme. First, the Government, local authorities and the food industry should work together to promote the diversion of legally permissible foodstuffs such as bread, dairy, fruit and vegetables for livestock feed. This does not require any changes to existing regulations; it merely requires a rigorously practised safe method of separation and distribution. Secondly, there should be further much-needed research into the environmental and economic benefits of lifting the ban on feeding catering waste to livestock. Lifting the ban would require agreement from the majority of EU member states and the EC. This process will take time, but it should begin now. In a world of finite resources, maintaining the ban is not a sustainable option. Thirdly, the Government should support the proposed revision to existing animal by-products legislation to allow non-ruminant PAP from pigs and chickens to be used for pig and chicken feed.
I do not underestimate consumer concern but I do believe that the British public are able to understand that pigs and chickens are naturally omnivorous and that there is a pressing environmental and economic case for reintroducing the recycling of unwanted foodstuffs back into food in this traditional fashion. I very much welcome the Government’s interest in this issue and encourage a wholesale review of processes that could be used to enhance the environmental and economic performance of the British livestock sector.
Lord Greaves
My Lords, I thank the noble Baroness, Lady Jenkin of Kennington, for securing this short debate on an important issue and congratulate her on the parliamentary campaign that she is waging on this issue. I am sure that we will hear a great deal more from her on this topic before too long. I also congratulate her on her very comprehensive survey of the issue and the measured way in which she has put forward proposals for change. By and large, I associate myself and the Liberal Democrats with what she said.
I shall make a few more peripheral comments as I do not want to repeat everything she said about this issue. The background is that many millions of tonnes of edible food are sent to landfill in this country as well as a lot more inedible food. It is estimated by the community interest company Food AWARE that perhaps 18 million tonnes of edible food ends up in landfill. Other people have different estimates of the amount of food that is thrown away and where it ends up, but what is common to all of them is that it is many millions in all cases. Again according to Food AWARE, we are in effect throwing away £23 billion a year, a figure that is rapidly rising as food prices are going up at the moment.
The environmental damage that this creates is obvious. Landfill costs and the landfill taxes that local authorities have to pay are equally obvious. Perhaps a little less obvious is the effect on people. Many people, particularly those on low incomes, are unable to afford what is described as, and is, healthy food and end up buying cheap junk food, although the price of that may be going up too. The effect of this food policy is ironically increasing malnutrition among such social groups and at the same time there is an increasing problem of obesity in the country. People are eating the wrong food, and they are eating too much of it. They are getting fatter, but they are not getting healthier. Disposal costs are passed on to consumers in higher prices and the landfill taxes that local authorities have to pay.
The NFU, quoting research at the University of Sussex, suggests that 20 million tonnes goes in the bin from domestic use alone. I do not know where it all goes. A lot of it perhaps does not go to landfill, but many million tonnes of food are still being thrown away. The statistics across the world are fairly well known. In Europe, on average 90 kilograms—200 pounds —of food is thrown away per person per year. In North America, it is even worse. Other parts of the world are similar. In industrialised Asia, it is 180 pounds. In much poorer parts of the world it is less. In south and south-east Asia it is 33 pounds, in Latin America it is 55 pounds and in sub-Saharan Africa it is only 11 pounds.
The fact that the richer parts of the world are throwing away so much edible food is a global disgrace. There is enough food produced in the world to feed the entire global population and, in fact, the projected global population for many years. The fact is that those of us in countries such as ours are depriving people in other parts of the world of that food because of the amount that we throw away. Looking at the famous waste hierarchy, the first thing we have to do is not to talk about what we do with the waste food that we throw out but to cut down the amount of waste food that we have in the first place. Efforts are being made by supermarkets, caterers, commercial producers of meals and some households, but it is nothing like enough. Until we tackle that basic problem, all the other things are really irrelevant.
The NFU is not against what is being proposed, but quite rightly advocates caution. It points out that feeding waste from catering establishments, including home kitchens and restaurants, has been banned, even if it is only vegetable waste, ever since the 2001 foot and mouth outbreak, which some of us remember with horror in our own areas.
The noble Baroness went back 9,000 years, which is a long time even for the House of Lords. Those of us who go back to the years just after the war remember when we all had pig bins in our streets in which we put our food—thoroughly smelly things they were—in order for it to be taken away and made into pig swill. We do not want to go back to that kind of thoroughly unsanitary situation, but it appears that a cautious but determined approach to using much more waste food for feeding animals, particularly pigs, which are capable of eating animal and vegetable waste food, is a sensible way forward. The NFU is not against that. It says:
“This coupled with the obvious environmental benefits of reducing the tonnage of waste disposed in landfill each year, will lead to mounting pressure on the UK Government and within the EU to re-instate food waste into livestock diets. Yet due to historical precedents, the issue must be approached with an air of caution”.
I do not think any of us can disagree with that. Studies that are taking place are being approached in that way.
In order to do anything with domestic food waste, anaerobic digestion has an important part to play. I understand the point made by the noble Baroness that ultimately anaerobic digestion puts a great deal of the CO2 back in the atmosphere, whereas if you feed it to animals it just recycles it within the system.
Whether food waste is used for anaerobic digestion, feed to animals, generating energy or whatever, it has to be collected. There are great concerns at the moment about whether local authorities will be able to collect food waste separately in ways that allow it to be reused and recycled under the proposals being put forward by the Government and being promoted particularly by the Secretary of State for Communities and Local Government, Eric Pickles, even though it seems essentially to be a Defra matter. His obsession is weekly collections of food waste. They are an excellent idea if the food waste is collected separately from everything else. If it is simply put into the grey bins with the residual waste and mixed up, and given the state of the technology that most local authorities have access to at the moment for the separation of the waste that has been collected, that food waste will simply end up in landfill. That would be a highly undesirable side effect of what Mr Pickles is proposing. Of course, where local authorities at the moment are not collecting food waste, it will make no difference because it simply goes in the fortnightly collections, but where local authorities are already collecting food waste separately, would like to do so or would be willing to do so, the fundamental question is whether the amount of money that Mr Pickles is offering to local authorities—£250 million in total—will be able to be put towards separate weekly food waste collection as opposed to food waste going in the grey bin.
I asked a Written Question about this recently and got a brush-off, really, which was, “We are still thinking about it”. I do not blame my noble friend the Minister here because it was not he who gave the Answer; the DCLG replied to the Question, even though it is a Defra matter. There is real confusion here and it really would help if the Minister could either answer the question or, if not, go back to his colleagues in the DCLG and say that lots of local authorities want to collect food waste separately and want to collect it weekly, but if Mr Pickles is providing all this beneficence to local authorities can he please provide it in a sensible way and not in a very old-fashioned way that just results in the stuff going to landfill?
Baroness Byford
My Lords, I thank my noble friend Lady Jenkin of Kennington for introducing this short debate. It is actually very timely. She asked us to consider the environmental and economic impacts of the proposed changes, at a time when we have so much waste, which she has clearly identified. I should perhaps remind the House of our family’s farming interests. My original profession was in fact breeding poultry and we also had pigs on our farm, neither of which I am involved in any more.
As my noble friend has indicated, the pig industry already uses over 1 million tonnes per annum of co- and by-products from food manufacturing, mainly in the form of wheat feed, biscuit meal, cake, bread and cereals products, starch extract products, and whey products. However, it is a highly regulated industry. I cannot stress this enough. All the products have to be FEMAS-assured and do not come from manufacturing plants that have any meat products, in order to minimise the risk of cross-contamination.
I was shadow Minister at the time of the foot and mouth outbreak in 2001, and I cannot stress enough the huge impact it had across the country, not just closing farms but movements of markets, countryside access, and rural concerns put out of business in the long term as a result of it. The ban on pigswill also, sadly, put 60 of those swill feeders out of business. What has come through from the NPA and NFU briefings is a note of real caution, and I hope my noble friend will reflect that caution when he responds—that it is not totally dismissed—as there have to be very strong rigours to ensure there is no question of cross-contamination.
From the briefings that we have had, the other big issue that has been raised is—as at the time of the foot and mouth outbreak—public concern and public confidence. Certainly the one thing the farming industry does not wish to see is another shake of that confidence, which has been restored over the years so that people trust the food they eat. Whatever the European Commission or our Government decide to do, very strong systems should be built in to make sure that there is no contamination.
The National Pig Association also goes on to say quite clearly:
“Whilst the focus should be on reducing the amount of waste produced in the first place, we would support alternative methods of dealing with waste food such as anaerobic digestion and gasification”.
Obviously these are also useful forms of energy. Taken with the briefing from the National Farmers’ Union that has been quoted by others already, it is important to recognise that here are two organisations that you think would be very much in favour of it, which say, “Yes, we will consider it but there are indeed questions attached to it”.
As I mentioned earlier, we are in an era where we have waste on one hand and increasing costs on the other. This debate gives me an opportunity to raise a couple of questions with the Minister. As the briefing from the NFU says:
“This waste utilisation issue coincides with a severe shortage of availability of GM free animal feed protein, particularly soya, which is grown predominantly in South America, and used by the pig and poultry sectors. Whilst EU GM feed restrictions continue, the price of GM-free soya is rocketing”—
which my noble friend referred to earlier—
“putting inflationary pricing pressures on UK produced pig and poultry products, whilst perversely, imported products are allowed to have been fed GM diets”.
So my question to the Minister is: should this aspect not be looked at again? Should the EU not be reconsidering its stance on GM? If it wants to maintain that stance, surely it should be looking at ways to protect UK pig and poultry producers from having to compete unfairly with products that are allowed to be brought into this country. It is an important part of the debate we are having tonight.
I have also looked up the letter that the noble Lord, Lord Rooker, sent on behalf of the Food Standards Agency. While I do not always agree with the Food Standards Agency, it too recognises the need for caution. The letter to my honourable friend Jim Paice on 15 September, discussing the current feed ban, also says that,
“provided effective controls to prevent infective material from entering feed are maintained, the proposed changes would give rise to a negligible risk of exposing farmed animals to BSE. Hence the risk to consumers would also be negligible. The Board was concerned, however, that this assessment relies on controls and enforcement, and that the risk would be negligible only if the controls were effective”.
Therefore, the recommendation from its recent meeting was that,
“the Board agreed to advise Ministers that the UK should not support the proposed\ changes”.
This is a very important discussion and I am really grateful to my noble friend for raising it. For me, it raises some very basic issues. We have waste; we need to deal with it. It would be better not to have it in the first place, to be perfectly honest, but there are ways in which we can use that waste without necessarily feeding it to pigs and poultry. We can use it in biofuels, anaerobic digesters and pet foods. We have the cost of purchasing and getting non-GM food for our producers here. The EU has to look at both sides of the equation.
I am very grateful for this short debate tonight to give us a chance to think about the ways in which we produce food in this country and where we would aim to go in the future. At the end of it all, the main goal should be to reduce food waste. Something like a third of the food that we produce here in this country is wasted. My noble friend Lord Greaves mentioned countries overseas. Their problem is different. Their waste is not what is actually put on the plate, but is a result of a lack of infrastructure to get it from the field where it is grown into the shops or markets—wherever people buy their food. Internationally, it is a slightly different challenge that they face.
I say to my noble friend Lady Jenkin that, while I support her thoughts behind her debate tonight, I cannot emphasise enough the degree to which we must be very careful, whichever way we go in the future. We could look back at the foot and mouth outbreak of 2001; if one accepts that it came from pigswill, it would mean that there was a system in place which should have made that not happen, but sadly it did happen. Therefore, whatever system goes on in the future, those controls and inspections need to be in place and reviewed regularly. I thank the noble Baroness for giving us this opportunity to speak tonight.
Baroness Miller of Chilthorne Domer
I, too, would like to thank my noble friend Lady Jenkin of Kennington for this debate tonight and also for her brilliant analysis of why we must change our attitude to food waste. I further thank her for introducing me to Tristram Stuart and his book, which she has generously lent me, Waste: Uncovering the Global Food Scandal, which I felt could have been subtitled “a philosophy for life”. I feel passionately that it is immoral to waste the planet’s resources; he gives the facts and figures behind that immorality and shows that there is a different way forward.
My noble friend Lady Jenkin mentioned the examples from Japan showing how it is technologically possible to separate out food waste streams and create an entirely safe way of feeding food pellets—perhaps the term “swill” is not helpful anymore—to non-ruminants with no risk at all, to create a better, more premium product. That is an entirely desirable vision which is actually realisable. It is all about having the confidence to regulate the food streams in that way and giving industry the confidence that the regulators can do it. I think that consumer confidence will then follow. People go off quite happily to Japan and other places that are doing this and eat pork, so it is not as though this is an impossible vision to realise.
In my contribution tonight, I mostly want to talk about the environmental damage that will occur if we do not change our attitude. First, I want to pick up something that my noble friend Lady Byford mentioned—the question of GM soya. I will be very sorry if this debate about food waste was in any way hijacked—I am certainly not suggesting that my noble friend was doing this—by those who want to promote the increased use of soya feed, whether or not it is GM. We cannot import GM soya into the EU at the moment, but this should not be seen as a marketing opportunity for GM feed producers to push their product, just because the non-GM soya has got so expensive. This is all about replacing the soya, and that is what I want to concentrate on: why we should be replacing it.
The ban on feeding food waste to livestock necessarily meant that Europe has had to increase imports of commercial livestock feeds, including soy meal, of which roughly 40 million tonnes are imported to Europe annually. The amount of land needed to produce soy for the European market since the ban on meat and bone meal in 1996 is roughly equal to the area of deforestation in the Brazilian rainforests since that date. That might be coincidence, but it is a very good example of this destruction. It is for this reason that the United Nations called on the EU to reconsider the overcautious legislation, concluding that encouraging the recycling of food waste into livestock feed could,
“contribute substantially to the feed supply, and by the same token release pressure on land”—
thereby reducing,
“biodiversity erosion, pollution and greenhouse gas emissions”.
Poultry feed accounts for more than half of all soya used in the UK livestock sector and much of this could be replaced by using food wastes, including processed animal proteins.
As well as land use causing deforestation, another knock-on effect is that of local farmers in Latin America who are evicted from their landholdings to make way for the large ranches and soya plantations. Last month, at the All-Party Group on Agro-Ecology, of which I must declare an interest as a co-chairman, we heard from the national co-ordinator of the Landless Workers Movement in Brazil about the effect on families who not only lose their land but can no longer grow food for their communities.
In Paraguay, 2.5 million hectares of soil were planted in 2006-07. Friends of the Earth found that every year in Paraguay alone 9,000 rural families were evicted because of soya production. Therefore, those families are not producing food for themselves and their communities. I have seen for myself the importance of corn, rice and beans in the Latin American diet. That food production is being displaced by soya production and the effect is that families are no longer able to afford a basic nutrition basket.
It is certainly not just me who has made that link. Defra has made the link between what happens when we import so much soya feed and what happens on the ground in Latin America. Recently, the Environment Secretary, Caroline Spelman, announced that Britain would contribute £10 million to help to protect the Cerrado in Brazil. She said:
“The Cerrado is rich in biodiversity and yet, alarmingly, it has almost halved in size, because of wild fires and the demand for agricultural products”.
Because of time I will not go on with what she said, but she made a very good analysis of the problem. She spoke about the loss and in conclusion she said:
“We won’t succeed in tackling climate change unless we deal with deforestation”.
We really must wean ourselves off this extreme need for soya.
I should like to look at the points of resistance that allow us to throw away so much; that is, the FSA, the NFU, the supermarkets and the food processing industry. The FSA is tasked to be rigorous in its risk assessment but, in its recent analysis, it said that the risks to human health of feeding PAP to pigs and chickens was negligible. That does not suggest a high risk or even a medium risk; it is a negligible risk. It is probably the sort of equivalent risk to something that is very common and highly regulated—the spreading of sewage on farmland. The FSA’s conclusion was that the risks were negligible. But its board also did not look at the benefits in environmental terms of stopping some of the issues that I have mentioned, such as deforestation. That might be because it is not in its remit but in our globalised world where everything is linked, it is hard to think that it should not have had a view on that.
I am sorry to say that I found the NFU brief for this debate rather shocking. Most of its reasons for why this was not a good idea were not mentioned tonight. They included staff in supermarkets being less well informed and not understanding the importance of properly segregating the products. Furthermore, the NFU believes that pet pig owners might pose a problem. Finally, in this regard, it states:
“Should the focus become more about using pigs to dispose of waste, the level of ammonia and nitrogen excreted from pigs could increase”.
I think that the NFU has been missing the point. I would ask it to go back and look at some of the examples that the noble Baroness quoted of things that are happening abroad and think about whether it could not help the pig industry here by taking a bit more of a positive attitude.
Finally, WRAP, the supermarkets and the processors have made some very good steps with the Courtauld commitment. Phase 2, which is happening now, is all about achieving the more sustainable use of resources. Pretty much all our major supermarkets and processors are signed up that. Part of that commitment must be to address this issue and to make progress on it. So my question for the Minister is this: does he think the Government could help with the very unhelpful regulation on the one-roof policy, which means that if something is produced under the same geographical roof of an establishment that also deals with meat products, that is always going to be a huge hindrance? Is this not more about working towards a total separation plan and making sure that it is regulated and enforced? That is the way forward.
In conclusion, this is all about education in schools and getting our children to realise the effect of wasting anything. Some great examples can be found in the Food for Life Partnership in schools and by the Royal Horticultural Society. Earlier today a parliamentary delegation went down to Wisley to see some of its work with school children, who completely got the thing about, “If you have put all that effort into growing food, do not waste it”.
Lord Knight of Weymouth
My Lords, I congratulate the noble Baroness, Lady Jenkin, on instigating this short debate and on the way she introduced it. She made a powerful case for change and asked valid questions on, for example, what is being done to encourage supermarkets to divert more food waste for animal feed. I also agree that more research is needed on feeding catering waste to animals. The noble Lord, Lord Greaves, supported her and wanted more to be done to reduce food waste in the first place, although I felt that he advocated a little more caution. The noble Baroness, Lady Byford, then went much further down the caution spectrum in harmony with the National Farmers’ Union. Finally, the noble Baroness, Lady Miller, gave an equally well informed speech inspired by the work of Tristram Stuart. Her contribution was particularly important in articulating some of the environmental arguments.
For my part, it is clear that this is a very sensitive issue; sensitive for consumers and producers alike. At one level, it could be thought that this is quite simple and a win-win-win for producers, consumers and the environment that has been turned into a lose-lose-lose for all three by dint of risk-averse stable-door regulation—and, indeed, the argument is tempting. Each year, as we have heard and according to the Farmers Guardian, some 16 million tonnes of food is wasted in this country at a cost of £22 billion. That is truly shocking and the Government need to explain how they hope to reduce it.
A couple of weeks ago I was talking to a friend who lives with a somewhat obsessive son in his early 20s who is now a “freetarian”. He will only eat free food. I gather that a couple of times a week he goes out in the small hours in his van and sees what he can find in the skips at the back of supermarkets. His family and their friends now rarely buy food. They already have the Christmas turkey in the freezer and some whole cheeses, while the rugby club has a good supply of out-of-date beer. Some supermarkets are apparently much better than others. I gather that Marks & Spencer very rarely throws away anything that is edible. It is not for me to comment on the safety or legality of this practice, but it demonstrates that a lot of food is thrown away and, in this case, is being used for human consumption with no ill effect that I am aware of.
The argument goes that if all this food is being thrown away, why not feed it to animals under a regulatory regime that protects human and animal health? Would not that be better for the environment than putting it into landfill? We have heard those arguments articulated very well this evening. Indeed, as the noble Baroness, Lady Miller, particularly made clear, the environment would also win because the feed would displace costly imports, especially of soya. I read an article in the May edition of Farmers Weekly by the much quoted Tristram Stuart in which he stated that,
“the EU imports 40 million tonnes of soya a year. Producing that soya comes at a huge environmental cost. If we made use of waste food for animal feed, we could substantially reduce pig farmers’ costs of production as well as having a significant environmental impact”.
This is exacerbated by the shortage in availability of GM-free animal feed protein, which causes prices to rocket while imported products are allowed in, despite having been fed GM diets. Perhaps in passing the Minister could answer the questions put by the noble Baroness, Lady Byford, on essentially whether there are plans to level the playing field for producers. Or, perhaps, given what I saw today on the BBC website around the difficulty of banning the import of illegally produced eggs from battery hens, it might be in Defra’s “too difficult” drawer. I am sure that the Minister will enlighten us.
On the face of it, waste food that is being thrown away could be fed to livestock that currently are being fed expensive, environmentally damaging food. It looks like a win-win-win, for producers, environmentalists and consumers. This is reinforced by other academics. I saw a paper this evening by Elferink, Nonhebel and Moll—I think they are Dutch—in 2007, which concluded that,
“the use of current food residue keeps the environmental impact of livestock foods relatively low”.
However, as the National Farmers’ Union points out, it is not as simple as that. As we have heard, the practice of feeding waste food from home kitchens and catering establishments was banned following the 2001 foot and mouth outbreak. With the devastation caused by that outbreak, I think it is right to be cautious.
It is also the case that over a million tonnes of co- and by-products from food manufacturing are already used by the pig industry, and that was detailed in the speech by the noble Baroness, Lady Byford. As she said, all products have to be Feed Materials Assurance Scheme-assured, and the use of waste products as animal feed is fine as long as it is properly audited. The risk of going further is that the risks of cross-contamination with meat products increase and we have another animal health disaster.
If a viable scheme were possible, with supermarkets that separated food waste so that only suitable waste went to livestock, would the retailer risk the reputational damage if anything went wrong? What if one of their staff accidentally sorted the waste wrongly? If hobbyist pig farmers—I know this was in the NFU briefing—saw that supermarket food waste was being fed to animals, would they go back to feeding their animals anything and regarding pigs as a natural dustbin? That would be a disastrous outcome. We, therefore, need to proceed with care. That is why, in the end, I am more at the Byford end of the caution spectrum.
The obscene levels of food waste need to be tackled. I ask the Minister what his Government's proposals are to tackle it. Is this something the grocers’ adjudicator could also report on? Are there going to be incentives for others uses of food waste? We have heard a little about anaerobic digestion, and had some enthusiasm from one or two of the supermarket chains about it. Could that be encouraged by Defra and DECC? As others have said, what can be done in relation to biofuels? Are there more industries that have food waste as a by-product that could dispose of their food by feeding it to livestock?
I end by repeating some of the questions raised by the noble Baroness, Lady Jenkin, around research. Is the department funding research into sterilization of some food to make this possible? As we have heard tonight, there are conflicting claims about the scientific evidence that proved the feeding of waste food to pigs links to foot and mouth or swine fever. Is the Minister confident of the scientific link? If not, is the chief vet ensuring the research is being done?
This is not straightforward. It is right to take a precautionary approach, however tempting it is to go for the win-win-win. The Government need to take a lead, and reassure producers and consumers that they will be led by the science. We need to be reassured that the Minister then has the budget to ensure the science is being done.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, I would like to thank my noble friend Lady Jenkin of Kennington for bringing this topical debate to the House. It has been a very interesting debate—not quite a love-in but, none the less, we seem to have all agreed on a number of elements in this issue.
Perhaps I can help the debate by updating the House on the current position. Defra is funding a review of the available evidence on the benefits and risks of using food waste in animal feed, which lies at the heart of the debate we have had this evening. This is a desk study, being conducted by FERA, and it is due to report in May 2012. Six months from now we should have further information on the science, as the noble Lord, Lord Knight, rightly asked about. The study will review the existing evidence base to examine the risks to human and animal health, the social and environmental sustainability and the economics of using food waste in animal feed.
Preventing food waste is better, environmentally, than any other treatment and can offer benefits for businesses and households. I am grateful to my noble friend Lady Miller of Chilthorne Domer for making it clear that WRAP has been working really hard on this front and indeed reducing waste, by consent, through the Courtauld agreement, with Courtauld commitment 2 about to come in. However, some food waste will always arise. The waste review states that such waste should be kept out of landfill and treated in the most sustainable way.
Anaerobic digestion and composting enable treatment of food waste as a valuable resource. Anaerobic digestion provides renewable energy and a valuable source of biofertilisers. I share with my noble friends my thanks to my noble friend Lady Jenkin for the opportunity to read the book by Tristram Stuart, which has been much quoted this evening. I am not sure that, on the information currently available, I can accept his thesis as it stands, but our research should inform us on this subject, and I am sure noble Lords would want that to be the case. It is certainly a very welcome contribution to this debate. We can say that all of us this evening share a common agenda to reduce food waste.
I know that evidence has been presented to show that feeding food waste to pigs may be better in some cases than the recovery of its energy in an AD plant. I hope the Defra-funded study currently under way will clarify the evidence that exists on the issue. Meanwhile, I am anxious to encourage the charitable distribution of potential retail food waste. My noble friends also introduced me to FareShare and FoodCycle, organisations that are receiving considerable and increasing support up and down the food chain. This is an excellent way of reducing food waste as well as, at the same time, providing much-needed support to families and individuals with low disposable incomes.
There are some very real animal health concerns, however, about feeding food waste to animals. Under EU legislation, both ruminant and non-ruminant farm animals may not be fed catering waste, sometimes known as swill, as it may be a vector for serious animal diseases. This is waste food from kitchens or catering outlets. Feeding this waste to livestock was banned in the UK and the rest of the EU following the outbreak of foot and mouth disease in 2001, which has been referred to several times. The ban stayed in place following a recent revision of the EU animal by-products regulations because it was recognised that disease risks—evident then—still remain.
No one wishes to see another situation like the foot and mouth outbreak of 2001, so a degree of caution is prudent. The Government are keeping their position on feeding catering waste under review, and further examination of the scientific evidence base is important to ensure that our policy is founded on strong evidence. However, even if we were convinced that swill feeding could be reintroduced safely, a relaxation of the ban would probably require scientific support from the European Food Safety Authority. Given the need for this and—we must not forget nowadays—the EU co-decision process, we are likely to be several years away from the prospect of any changes to the ban on feeding catering waste to livestock. It has been very interesting to hear from my noble friend Lady Jenkin about the way in which this matter has been dealt with in Japan, and Europe has the opportunity of studying that further.
As I mentioned, catering waste is the waste food from kitchens and catering outlets. There are different rules for surplus food that originates from manufacturers and retailers and is no longer intended for human consumption. As the noble Lord, Lord Knight, pointed out, such food can be fed to livestock if it comes from premises with appropriate separation procedures to prevent any contact with animal by-products such as meat and fish. This includes bakery waste that does not contain meat or fish and surplus fruit and vegetables. Some of the larger supermarkets are already working to increase the supply of surplus bakery products to animal feed, and Defra has been working with them to ensure this can be done safely.
My noble friend Lord Greaves challenged me on the whole issue of domestic food waste and sought to extend the debate a little further outside its immediate confines by raising the issue of bin collections. All I can say to him is that I am not in a position to make the announcement, as a decision on that rests with the Secretary of State for Communities and Local Government. I know that he will shortly make an announcement on what he proposes on this issue.
Then there is the whole issue of processed animal protein, which cannot be made from catering waste but can be made from foodstuffs no longer intended for human consumption from manufacturers and retailers, such as meat or bones, as well as abattoir by-products including blood and feathers. The European Commission is proposing to lift the ban on feeding processed animal proteins from non-ruminants to other omnivorous or carnivorous non-ruminants. The ban on cannibalism —that is, an animal eating a like animal, not something more dramatic, I have to say—would be retained.
Lord Taylor of Holbeach
Yes. My noble friend Lady Byford rightly emphasised the need for caution and referred to the NFU position on the issue, which was similarly cautious. I remind noble Lords that we need to take consumers with us on these issues. We know how difficult that can be to ensure that consumers are totally reassured on issues of this nature.
The Duke of Montrose
My Lords, my noble friend mentioned the fact that the EU is reviewing this attitude to processed animal protein. It is generally accepted that meat and bone meal from dedicated poultry slaughterhouses could be perfectly safely fed to pigs. Does he have any indication when the EU will make a decision on this point? Otherwise, will it be included in the review that is due to be brought out in May 2012, which Defra is currently conducting?
Lord Taylor of Holbeach
Indeed, this is exactly the sort of issue on which we want to have proper scientific evidence before we take our own position within Europe. I hope that I can reassure my noble friend on that very point.
As my noble friend Lady Byford said, we know in this country that bodies such as the Food Standards Agency have already made comments on the European proposal, which lies at the heart of why this debate has become more topical. The UK Government, working with the devolved Administrations, are currently considering this proposal. In reaching a negotiating position, we will need to take account of the science, the control tools available, the likely market demand, and consumer views. Existing legislation does not necessarily condemn PAP to waste, and our assessment shows that most PAP produced in the UK goes into the pet food market. I have a very useful schedule of statistics here, which I will make available to all noble Lords who have shown an interest in this topic by being in the Chamber this evening. I will make sure that we make those figures available, because they are very interesting. They show, for example, that within the EU 98 per cent of poultry PAP is used in pet food. The figures are quite striking and should inform our debate.
I understand my noble friend Lady Byford’s point about GM. It is a matter to which we are alerted. I will not, however, describe it as being in the “too difficult” drawer. It is of course a complex issue, but to put it in a drawer and suggest that it is shut away for ever would be to misdescribe Defra’s view of it. We are supporting scientific work because we want to understand more what potential and opportunities may exist through the use of this technology as long as science lies at the bottom of it all.
To sum up, we are funding a review of the available evidence on the subject of today’s debate and expect the results in May next year. This is part of our commitment to tackling the problem of food waste: reducing it where we can and dealing in the most sustainable fashion with what does arise. I hope that the results of this research will help us in this aim but we must recognise the need for caution here and prioritise the need to protect public and animal health. This has been a good debate and there has been a strong consensus that reducing the amount of food waste we produce should be a major aim of us all.