Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Haskel)
My Lords, I have to inform the Committee that if there a Division in the House, the Committee will adjourn for 10 minutes.
Misuse of Drugs Act 1971 (Amendment) Order 2012
(12 years, 8 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Misuse of Drugs Act 1971 (Amendment) Order 2012
Relevant Document: 43rd Report from the Joint Committee on Statutory Instruments
The Minister of State, Home Office (Lord Henley)
My Lords, I apologise for my near lateness but I am here on time. I beg to move that the Committee considers the draft Misuse of Drugs Act 1971 (Amendment) Order 2012, which was laid before Parliament on 28 February. I will have problems with some of the pronunciations but this order will bring 2-DPMP and its related compounds—phenazepam and any ester or ether of pipradrol—under the control of the 1971 Act, based on the recommendations put forward by our independent experts, the Advisory Council on the Misuse of Drugs, following its assessment of all available evidence.
The drugs subject to the order are so-called legal highs or new psychoactive substances which imitate the effects of and are chemically related to existing illegal drugs. I make three points. First, the ACMD likens the harms of 2-DPMP and its related compounds to controlled class B drugs which include amphetamines. We accept the ACMD’s assessment of evidence that 2-DPMP and its related compounds, as defined by the generic definition which the ACMD has provided, are sufficiently harmful to warrant class B control under the 1971 Act. Secondly, the order makes a technical amendment to include any ester or ether of pipradrol not captured by the generic definition as class C drugs alongside the main drug pipradrol to which they are chemically related. This ensures that we are consistent with current definitions used in the 1971 Act. Thirdly, the order adds phenazepam, via its full chemical name, to the list of—I now have a very difficult one—benzodiazepines which are controlled class C drugs under the 1971 Act.
The ACMD’s advice highlights evidence that websites selling so-called legal highs have exploited the current position that phenazepam is not one of the benzodiazepines covered by the 1971 Act, while the harms indicate that it is one of the more potent benzodiazepines. This order, if it is made, will enable law enforcement agencies to take full steps to curtail the availability and misuse of these harmful psychoactive substances.
There will be two negative instruments to complement this order. A designation order will be made to designate 2-DPMP and its related compounds under the generic definition, as they have no recognised medicinal or legitimate use. The designation order will amend the Misuse of Drugs (Designation) Order 2001. Regulations will also be made to amend the Misuse of Drugs Regulations 2001. It will include designated 2-DPMP and its related compounds in Schedule 1 to those regulations while phenazepam and esters or ethers of pipradrol will be placed with Schedule 3 drugs under the 2001 regulations to reflect their medical properties. These negative instruments will be prepared to come into force at the same time as the order. We will publicise these legislative changes through a Home Office circular addressed to all United Kingdom police forces and our criminal justice partners. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Lord, Lord Henley, for his explanation of the instruments and the other negative instruments that are to be seen in the context of this instrument. I congratulate him on his pronunciation— I do not intend to follow him down that route. As the noble Lord said, the Merits Committee has also advised us that the draft instrument supersedes a draft of the same title because of new advice from the Advisory Council on the Misuse of Drugs. I take this opportunity to pay tribute to the work of the advisory committee, which will obviously be taken very seriously by the Grand Committee.
I noted in paragraph 8.1 of the Explanatory Memorandum that the consultation process involved consulting the MHRA, which I had the pleasure to establish, and the Department for Business, Innovation and Skills. Were other organisations consulted in that exercise? The explanatory note also refers to guidance to be issued, and I noticed that it makes reference to communicating with young people. Can the noble Lord say a little more about how it is intended to do that? Finally, paragraph 12.1 refers to the fact that the policy is to be monitored and reviewed as part of the drugs strategy. Can he say anything about how the monitoring and review will take place? Other than that, I have great pleasure in supporting the order.
Baroness Hamwee
My Lords, reading about these substances makes me grateful that I was young in the comparatively harmless 1960s.
The orders are difficult for the non-scientist, not just in pronunciation. Like the noble Lord, Lord Hunt, I am grateful to the advisory committee. I do not know whether Parliament has ever rejected one of these orders. The noble Lord referred to paragraph 8.1 in the Explanatory Memorandum. The point I took from that was the comment that these substances have not been identified as having any legitimate medical or chemical use beyond potential research use. If legitimate researchers wish to use them for research, is there a route for that to happen? In other words, can research still take place?
I have no doubt that we will consider further orders which, to those of us who are not scientists, will look much the same but which, to the scientists, will be about different substances. I doubt that it is ever possible to be fully upstream and ahead of the manufacturers, particularly in the Far East, but I, too, support the order.
Lord Henley
My Lords, I shall briefly deal with some of the questions raised and comments made by noble Lords. First, I apologise for not paying tribute to the work of the ACMD. I am very grateful to the noble Lord, Lord Hunt, for doing so. We are very grateful for all the work that the committee puts in. The 25 or so members are all giving a considerable amount of their time free. What they do is very useful and we are grateful for it.
On the question of consultation raised by the noble Lord, as he will understand, we have consulted widely. The ACMD was involved. The noble Lord then mentioned the MHRA, which he was responsible for setting up, and BIS. Obviously, we will discuss these matters with other partners as and where appropriate. I am grateful that he emphasised the importance of doing that.
The noble Lord also discussed how we get the message over to young people. I just mention the Government's own advisory service for young people through FRANK, which he will be aware of, the website that provides information to them about exactly what are the dangers of certain drugs. That is all done in a manner not to appeal to the noble Lord or me but to be understandable to our children and others. As he also knows, FRANK was updated last year to improve the service available.
My noble friend Lady Hamwee mentioned the fact that she was somewhat younger in the 1960s. We were all younger in the 1960s. What was that remark—“If you can remember the 1960s, you probably weren’t there”? I leave that and make no further comment; it is probably something that we do not want to discuss.
I understand what the noble Baroness said regarding what we ought to be doing about research, and I give her an assurance that we will be facilitating research as far as possible through the licensing regime. I hope that that deals with the points that have been made.
Lord Cobbold
The noble Baroness, Lady Meacher, who I am surprised is not here today, is leading a group in this House to undertake a review of drug policy in general. If this measure is adopted as policy for this House, will it be possible to look at it again later on?
Lord Henley
I have recently spoken to the noble Baroness, Lady Meacher, who chairs the All-Party Group on Drugs Misuse. That group’s work is effective and important, and I want to continue to work with the noble Baroness. We are looking at whether, between myself as chair of the cross-ministerial group on drugs and her as chair of the All-Party Group, we can have further discussions. We are very grateful for all the work that she and her group put in on these problems, which sometimes seem more difficult than it is possible to be. I will certainly continue to have discussions with the noble Baroness on this matter.
Statistics and Registration Service Act 2007 (Disclosure of Social Security and Revenue Information) Regulations 2012
(12 years, 8 months ago)
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Lord Wallace of Saltaire
That the Grand Committee do report to the House that it has considered the Statistics and Registration Service Act 2007 (Disclosure of Social Security and Revenue Information) Regulations 2012
Relevant Document: 42nd Report from the Joint Committee on Statutory Instruments
Lord Wallace of Saltaire
My Lords, I am about to discover that I have mislaid my speech—no, I have not. These regulations are the fifth use of the data-sharing powers under the Statistics and Registration Service Act 2007. The Disclosure of Social Security and Revenue Information Regulations create a gateway for the sharing of information in relation to individuals in connection with certain social security and revenue payments with the Office for National Statistics. The information that these regulations allow to be shared is held by the Department for Work and Pensions and HMRC. The ONS is the executive office of the UK Statistics Authority, which is referred to in the legislation as the Statistics Board.
Access to that information will enable the ONS to develop ongoing research as part of the Beyond 2011 programme. This programme is to consider possible alternatives to the traditional census in producing census-type statistics. With this information, the ONS will be able to investigate the feasibility of developing more accurate and cost-effective methods for producing population statistics. The ONS will report the outcome of this feasibility work to Parliament in 2014. The information will also be used to quality-assure and validate the 2011 census counts.
Data confidentiality and security arrangements are being assessed as a fundamental part of the preparation for sharing the information. The ONS already works to very tight confidentiality guidelines and has an excellent data security record. It is putting the necessary measures in place to protect the information and to ensure there is no disclosure of any personal information about individuals. The information provided will be used for statistical purposes only.
Section 39 of the Act makes it an offence for a member or an employee of the authority to disclose personal information it holds other than in tightly defined circumstances. Any unlawful disclosure could result in imprisonment and/or a fine. These regulations allow the ONS to disclose the information to the National Records of Scotland and the Northern Ireland Statistics and Research Agency, but only for the purpose of assisting the UK Statistics Authority in producing population statistics.
These regulations enable administrative information already collected by the Government to be further utilised.
Lord Wallace of Saltaire
These regulations enable administrative information already collected by government to be further utilised, but only for the purposes as set out in the regulations—that is, for the improvement of population statistics.
In summary, allowing access to information in relation to individuals associated with certain benefits and Revenue payments will lead to developments in the production of census-type statistics under the Census 2011 programme. Ultimately, it will lead to more accurate resource allocation, policy development and service planning and delivery. Simply put, better statistics will inform better policy-making. I therefore ask the Committee to support these regulations.
Lord Hunt of Kings Heath
My Lords, I am sure that we are very grateful to the Minister for his comprehensive description of the regulations before us. Of course, as he said, the context in which these regulations are being debated goes beyond the 2011 programme established by the UK Statistics Authority, which is testing and establishing alternative models for census-type statistics. Obviously, there is a great deal of interest in that and in the programme, and I should like to come back to that in a moment. However, the Explanatory Memorandum very helpfully says that the effect of sharing social security and Revenue information will be subject to internal review after 12 months and that the legislation may be amended accordingly. Will the outcome of that internal review be made public?
I also take this opportunity to ask the Minister to explain what will happen to the 2021 Census. Can he also say whether there will be parliamentary scrutiny in the event of the Government deciding to replace the current 10-year Census? Will it be subject to a legislative order or primary legislation or to a debate? It would be helpful if he could clarify that for me.
My understanding is that the UK has carried out a Census every decade since 1801, with the exception of the 1941 Census during World War II. It is of course the only time that everybody in the country is counted and the information is used by the Government to determine spending priorities and to track population movements. In addition, academics, charities and religious organisations all use information gathered in the Census, because it asks wide-ranging questions in relation to people’s households, nationality, faith and marital status. The information is also of great interest to many members of the public. The online publication of the 1911 Census, for instance, was a very great success and hugely popular. I understand that 3 million people accessed the data within a few months of its being established.
I would just like to ask the noble Lord to comment on the remarks of Geoffrey Robertson QC, a constitutional barrister, who said the news was regrettable since some sort of count had been carried out by the monarchical government for almost 1,000 years. He said that future historians will be less able to interpret Britain in the Cameron-Clegg era as a result of this decision. He actually went on to say that perhaps that is the reason for this, but I do not accuse the noble Lord of that. I would also refer him to the remarks of David Green, the director of the Civitas think tank, who said the decision was a terrible mistake. It is a question of whether alternatives are reliable. The Census is expensive but he thinks it is worth the money for historic continuity.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord for those comments and can tell him that the Beyond 2011 programme regularly reports to Ministers and these reports will be published on the ONS website, so they will reported in a form that will be easily accessible to noble Lords and others who are interested. The most important question which he posed is what will happen to the 2021 Census. My clear understanding is that the decision will not be taken until 2014 or later, and the purpose of these data exchanges and this data-sharing is to discover, first, how accurate the 2011 Census has been and, secondly, whether there are alternatives to continuing to conduct a Census of this sort.
There are costs, benefits, advantages and disadvantages to maintaining the traditional Census. As I understand it, the first Census was conducted in 1841. I say this from my historical knowledge since I can trace my family back to 1801, precisely because one of my ancestors was 40 in 1841 so one could get him back to where he had been born.
Lord Hunt of Kings Heath
My Lords, rather like the sixties, does the noble Lord’s memory go back that far?
Lord Wallace of Saltaire
I hope so. It is possible that censuses have gone back further. I have at the back of my mind something that says a decree went out from Caesar Augustus that all the world should be taxed. That, of course, was a census of some sort which I think was just before they managed to conquer this country, so “all the world” was a bit of an exaggeration.
The problem of the future of the Census is this: the Census of 1911 and earlier ones are tremendously interesting in their historical information for all of us. I have certainly looked at the 1911 Census and in our hall in Saltaire we have lists of everyone who lived in the house every 10 years from when the house was built to 1911. Yet how much money should one spend to provide historical information to the next generation but one? That is one question with which the Government have to be concerned.
We are somewhat impressed that Census information has got less accurate as family circumstances have become much more complicated. Children live in two houses because their parents are separated and people move around much more rapidly. With a much more mobile society in which young people, particularly young males, do not register with doctors or fill in forms, there are substantial problems in counting population. As we all know, for Government and particularly for local authorities, accurate assessment of how many people are living in your area is of considerable importance, so the purpose of this entire ONS programme is to see whether there are better alternatives to provide efficient and differentiated population statistics. It brings together a range of information now available to different government departments under very strict conditions.
In the discussions that I have had with officials on this, I said that it is quite clear that we will need a Green Paper for 2014 to allow Parliament and the public to discuss the costs and benefits of retaining the traditional Census or of otherwise moving towards a different rolling programme. After all, the data revolution is making life astonishingly different from what it was. There are enormous advantages in the amount of data that can now be collected about us. However, we are all conscious that there are enormous dangers in allowing the state to collect too much information, and that is why this statutory instrument and the others in the programme are wrapped around with so many conditions.
I hope that I have provided sufficient reassurances to enable the Committee to accept the statutory instrument.
Schools (Specification and Disposal of Articles) Regulations 2012
(12 years, 8 months ago)
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Lord Hill of Oareford
That the Grand Committee do report to the House that it has considered the Schools (Specification and Disposal of Articles) Regulations 2012
Relevant Document: 39th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, these regulations, which were considered in another place by the First Delegated Legislation Committee on 28 February, take us back to some of our debates about behaviour during the passage of the Education Act 2011. They are separate from the provisions in the Education Act that we discussed at some length in this Room last summer but they are part of our efforts to make sure that schools can provide calm and safe environments in which teachers can teach and pupils can learn.
The Government first announced our intention to strengthen teachers’ powers to search pupils, including making these regulations and giving teachers a more general search power, in a Written Ministerial Statement on 7 July 2010. Then, in our schools White Paper, published in November 2010, we said that we wanted to make sure that teachers and head teachers,
“can establish a culture of respect and safety, with zero tolerance of bullying, clear boundaries, good pastoral care and early intervention to address problems”.
Strengthening teachers’ powers to search is an important part of this process. It means that they have the powers they need to maintain and promote good behaviour in their school.
Perhaps I may set out briefly what these powers mean in practice. Authorised members of school staff can already search for knives and weapons, alcohol and illegal drugs, and they can also search for stolen items. These powers were introduced as a result of the Apprenticeships, Schools, Children and Learning Act 2009. New general search powers included in Section 2 of the Education Act 2011 extend these powers further. From 1 April, head teachers will be able to authorise staff to search pupils for any article which has been, or is likely to be, used to commit an offence or cause harm or damage to property. Authorised school staff will also be able to search for items that are banned by the school and which are identified in the school’s own rules as items that may be searched for.
The regulations that we are discussing today build on the existing provisions simply by adding tobacco and cigarette papers, pornographic images and fireworks to the list of prohibited items. I think we would all agree that none of these items should have a place in our schools. We think that in the interests of safety and for the avoidance of doubt it is necessary for teachers to have the power to search for them, confiscate them and dispose of them appropriately.
We think that giving school staff the ability to search pupils for tobacco and to confiscate it will help to protect the health of pupils. Potential hazards are obviously involved in taking fireworks into school. That is why we want to provide school staff with a specific power to search pupils for fireworks and to be able to confiscate them.
The purpose of including pornography is to ensure that schools can take effective steps to deal with the possession or distribution of pornography by their pupils. Searches could be made for any item that authorised staff members have reasonable grounds for suspecting contained such an image, including books, magazines or electronic devices. For example, if a teacher reasonably suspects that a pupil has a pornographic image on their mobile phone, the regulations would enable the teacher to search for that phone and to search its content for the pornographic image. This is a sensible approach since electronic devices are increasingly replacing books and magazines.
Some of your Lordships may have concerns about examining the content of electronic devices and the risk that staff may, for example, access data that belong to the parents. The fact that a pupil claims that the device is not theirs does not prevent staff examining it. However, in order to examine it they must have reasonable grounds for suspecting that a device contains a pornographic image. Revised departmental advice to schools will explain teachers’ obligations under Article 8 of the European Convention on Human Rights and remind them that pupils have a right to expect a reasonable level of personal privacy. The revised advice will be published on 1 April.
The regulations also set out how the additional prohibited items should be disposed of. School staff can keep or dispose of tobacco and fireworks. Giving staff the flexibility to decide whether to retain or dispose of an item means that they will have discretion to decide on the most appropriate course of action to take in any given circumstance. Pornographic images may be disposed of, unless their possession constitutes a specified offence—for example, if they are extreme or child pornography—in which case they must be handed to the police as soon as possible. Where the image is found on an electronic device, this could mean deleting the image or retaining it so that the article that contains the image can be delivered to the police. This approach is consistent with that taken in the Apprenticeships, Skills, Children and Learning Act 2009 in respect of the disposal of illegal drugs and stolen items.
The Government’s role is to give schools the freedom and support that they need to provide a safe and structured environment. Strengthening teachers’ powers to search for, confiscate and dispose of a range of disruptive items is a key part of this. The regulations specifically identify tobacco, fireworks and pornographic images as items that may be searched for. The person conducting the search would be able to use such force as is reasonable under the circumstances to search for these items if they judged it necessary to do so. The Government believe that given the intrinsically harmful nature of these items it is necessary to identify them specifically in regulations. This builds on the approach taken by the previous Government and will mean that teachers’ power to search for them is beyond doubt and does not rely on the pupil’s intention in having the item or on the item being banned by the school rules. I commend the regulations to the Committee.
Baroness Walmsley
My Lords, while I support the coalition commitment to giving heads and teachers the powers that they need to ensure discipline in the classroom and promote good behaviour, I cannot resist the opportunity that this statutory instrument gives me briefly to restate an opinion that I expressed many times during the passage of the Education Act 2011. This commitment is much better achieved by good-quality teacher training and good control in the classroom than by any extension of the powers to search. Also, searching of pupils should always be done with a witness and, above a certain age, should always be carried out by someone of the same gender. However, having not resisted the opportunity to say that again—I suppose there is some difference between the two parties in the coalition—I support the Government’s approach.
Looking at the regulations themselves, I notice that in Regulation 3 the items listed include tobacco and cigarette papers. Next to that I have written “health”. Item (b) is “a firework”, next to which I have written “safety”, while item (c) is “a pornographic image”, next to which I have written “equality, respect, bullying and violence”. The great big bracket that links all three together is PSHE. Therefore, I wonder whether the Minister can tell us a little about how the internal review of PSHE is going on. This is quite relevant to this regulation. It would be nice to think that if in a lawful search of pupils in schools, following implementation at the beginning of April, any of those dangerous items were found on them, they would be given extra PSHE. An understanding of the dangers inherent in having all those items in school is covered by good quality PSHE education.
I have one other point for the Minister. The department’s guidance, Screening, Searching and Confiscation: Advice for Head Teachers, Staff and Governing Bodies, is to be updated. Will he confirm that it will contain advice on children with special needs—for example, children with autism or those who the school knows may have been subjected to physical or sexual abuse? The approach of an adult to such children could cause rather outrageous behaviour which is not the child’s fault and might escalate a situation which a little understanding could prevent. It is important that teachers understand that if they are going to search children who have or have had those problems, they need to be cautious in doing so, even though it is lawful and legitimate.
Baroness Hughes of Stretford
I apologise to the Committee, and in particular to the Minister, for being absent at the start of the debate. I mistakenly took a phone call at the wrong time and missed the change indicated on the monitor, which I had been watching. I hope that I missed nothing crucial—
Baroness Hughes of Stretford
My apologies again. As the noble Baroness, Lady Walmsley, said, we debated the substance of the policy when the legislation was debated in Committee and I do not intend to reopen it. I shall confine myself to the regulations and I want to put two particular points to the Minister. The first concerns the guidance on the use of the powers, which will be forthcoming on the back of these regulations. I should be grateful if the Minister would clarify the current position.
When the guidance Screening, Searching and Confiscation, published earlier this year, was debated in the other place, the Minister said that it would be updated to reflect the more recent changes to the law and that new guidance would be published before implementation on 1 April this year. Will the Minister confirm that? The guidance written so far, which I have looked at on the website, says nothing about what will constitute the reasonable suspicion that a teacher must have to justify a search without consent. It says:
“The teacher must decide in each particular case what constitutes reasonable grounds for suspicion”,
and gives two examples. One is hearing other pupils talking about an item, which is fairly uncontentious. If a teacher hears talk from other pupils, that is fairly obviously reasonable grounds for suspicion. The other example is that,
“they might notice a pupil behaving in a way that causes them to be suspicious”.
That is fairly wide because it could be anything. Will the Minister confirm that the guidance will make it clear, as I believe it should, that after such a search without consent, the teacher must be able to say specifically what constituted the reasonable grounds for suspicion, and that that should usually be hard intelligence or evidence rather than the teacher just feeling suspicious? For example, what would be reasonable grounds for suspicion to justify taking away and looking through a phone, a laptop or an iPad? A pupil might be behaving inappropriately in a class, fiddling with the item or looking at e-mails, but surely that alone would not justify reasonable suspicion of, for instance, the presence of pornographic images to justify a search without consent. There is a lot of grey area here, and I should like to be reassured that the guidance will help teachers to define the thresholds for suspicion in such circumstances.
Regarding another point on the guidance, I could not see any distinction in the current guidance between the approach to situations involving children of different ages—younger children as opposed to older children—in secondary schools. Will the guidance also address that issue?
My second substantive point concerns recording and monitoring the use of these powers. In the other place, the Minister said that the Government had no plans to monitor the use of the powers or to require schools to keep a log of incidents in which the powers have been used. I am particularly concerned about the powers to search without consent. I am in favour of giving teachers these powers, but this extension of powers should require schools to keep a record of the incidents in which they are used.
One may think about similar situations, for instance, in children’s homes—and I have visited very many in a previous life. I always asked to look at the incident log to see whether discipline had been used and recorded appropriately. The use of police powers requires the recording of incidents. In any part of society where professionals in authority are given powers of search and confiscation over other people, it seems only right, and a necessary and visible counterbalance to those powers—necessary though they are—that a record should be required. The Minister may come back and say something about not wanting to burden schools, but this is not about burdening schools with unnecessary requirements. Keeping a record is a reasonable and essential counterbalance to the extension of powers, and we should require schools to do so.
Similarly, there should be a requirement that data using those records be kept for monitoring, so that, for instance, any differential deployment of these powers in respect of different groups of children will be visible. We know the concern that police stop-and-search powers are used disproportionately on young black men. We would want to know—would we not?—if, however unconsciously and inadvertently, these powers of teachers could be shown to have been used differentially in relation to specific groups of children rather than others. Yet, if the information is not recorded by schools, and is not monitored by the Government and inspected by Ofsted, we will have no way of knowing just how these powers are being used, whether they are being used appropriately and whether, however inadvertently or unconsciously, specific groups of children are the subject of these powers in a differential way.
Lord Hill of Oareford
My Lords, I congratulate my noble friend Lady Walmsley on her ingenuity in raising some issues that are possibly within the scope of the regulations. I know her feelings on the subject, which we debated at length. The only thing that I would say is, as the revised guidance that she will have seen makes clear, the provisions that allow search by the opposite sex are very much to be used in exceptional circumstances, and the assumption is that in nearly every other circumstance that will not be the case. We had that debate previously.
So far as the PSHE review is concerned—again, the way in which my noble friend managed seamlessly to move from one of her favourite topics to another through the means of the regulation was a wonder to behold—she will know that we had hoped to be in a position at the beginning of the year to come forward with proposals on how we can improve PSHE, but the timescale on reporting back on the national curriculum generally has slowed down, and the proposals on PSHE are being aligned with that. All that I can say is that the issue is still work in progress, and proposals will come later in the year.
As for the guidance, which relates to a point made by my noble friend and by the noble Baroness, Lady Hughes of Stretford, we are on track to publish it on 1 April. However, given some of the points raised, it would be sensible if I shared it in advance of publication so that we can ensure that it deals with the issue clearly and my noble friend can see whether it addresses the question of searching children with autism, for example.
On the point about recording and monitoring, the noble Baroness was right. It is our view that we do not need to set up a detailed and complicated system of recording and monitoring. On her specific point, I understand the concern about what might be a disproportionate effect on some groups—particularly, for example, black boys. The search powers have been in place since 2007 and were extended again in 2009. The fact that we have not collectively been made aware that there is a particular problem with the way that they are exercised gives some comfort. We would rely on parents, staff and others to make their concerns known. If they were flagged up with us, we would want to act on them because, like the noble Baroness, we want to ensure that the powers are used, first, proportionately and, secondly, in an equitable fashion.
On the noble Baroness’s fair point about what is the definition of reasonable suspicion, there is no definition of reasonable suspicion, for fairly obvious reasons. There are many things in legislation that it is hard to define precisely but, over time, practice and custom grows up. We do not have plans to specify that, but I hope that the guidance which, as I said, I will happily share with the noble Baroness, will provide some help in that area so that teachers will be clear on what they are able to do and what they are not.
I hope that that gives some satisfaction and that we will be able to approve the regulations.
Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012
(12 years, 8 months ago)
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Lord Hill of Oareford
That the Grand Committee do report to the House that it has considered the Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012
Relevant Document: 40th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, during the passage of the Education Act last year, we discussed the creation of the new 16-19 and alternative provision academies. As part of those deliberations, we agreed to powers allowing the Secretary of State to make further consequential amendments necessary to create a legal framework for those new institutions. At that time, I assured noble Lords that any such changes to primary legislation would be made through the affirmative procedure and therefore allow for proper scrutiny. The order we are debating makes those further consequential amendments to the primary legislation.
I am grateful to both the Joint Committee on Statutory Instruments and the Merits Committee for their careful consideration of the regulations. Noble Lords will know that neither committee commented or thought that the House’s attention should be drawn to these regulations.
There are two main purposes to the order: first, to extend to part-time or very small alternative provision academies the same legislation as applies to full-time and mainstream academies; and, secondly, to extend to alternative provision academies the same rules on religious designation as apply to PRUs—namely, that they cannot have a religious designation. Most of the amendments that the order seeks to make are to ensure that legislation that already applies to full-time alternative provision academies and mainstream academies applies equally to part-time or very small alternative provision academies. Academies are defined in legislation as independent schools, and the definition of an independent school is that it is non-maintained and provides full-time education for at least five pupils of compulsory school age, one child with a statement or one looked-after child. Given that quite a lot of alternative provision is part-time or full-time for fewer than five pupils, without these amendments alternative provision academies would not be subject to the independent schools legislation that applies to other academies.
I give just a couple of examples. Without the amendment to the Education Act 1996 in paragraph 5 of the schedule to the order, a part-time or small alterative provision academy would not be legally required to give access to a person authorised by the local authority to monitor provision for statemented pupils. Without the amendment in paragraph 21 to the Safeguarding Vulnerable Groups Act 2006, an individual would not be required to register with the Independent Safeguarding Authority to become proprietor of a part-time or small alternative provision academy.
The remaining amendments in paragraphs 9 and 28 of the schedule to the draft order relate to the religious designation and religious ethos of a school. Paragraph 9 will make alternative provision academies unable to be designated as schools that have a religious character—in line with pupil referral units.
Why are AP academies and PRUs treated differently from mainstream schools? Unlike the mainstream school system, they work on a basis whereby places are commissioned by local authorities and schools, rather than selected by parental choice. This is to help overcome a specific issue or need, after which the child would return to mainstream education, as appropriate. In those circumstances, religious designation does not make sense. Alternative provision academies will be able to have a distinct ethos based on a set of morals that are aligned with a particular faith. However, paragraph 28 provides that where alternative provision academies are registered as having a religious ethos, they will not be able to discriminate against pupils in their intake or school services on the basis of religion or belief, as independent schools can.
We have frequently discussed the failings of the current alternative provision sector, such as the poor educational results. Less than 1.5 per cent of pupils achieve five or more GCSEs at grades A* to C. We have also discussed the knock-on effect on the rest of a young person’s life. Noble Lords will be aware of the recent report on alternative provision published by the Government’s behaviour adviser, Charlie Taylor, who describes alternative provision as,
“a flawed system that fails to provide suitable education and proper accountability for some of the most vulnerable children in the country”.
It is for this reason that the Government are giving all alternative provision, including pupil referral units, the opportunity to take advantage of the greater freedoms and benefits of academy status, and thereby—we hope—to raise standards. Charlie Taylor argues, as would I, that the principles underlying the Government’s education reforms of increasing autonomy, improving the quality of teaching and strengthening accountability should improve alternative provision and, ultimately, the lives of those children who need it.
I know that everyone here wants to make sure that every child has a high-quality education. It is the responsibility of all of us, including the Government, to do everything that we can to ensure that they get it. It is in that spirit that I commend these regulations to the Committee. I beg to move.
Baroness Walmsley
My Lords, I very much support this statutory instrument. I am very excited about the potential of these new academies. Whether the new providers coming in to the system will be able to provide high-quality, more specialised alternative provision for young people remains to be seen, but it is likely that they will.
The 16-19 academies, particularly those that focus on science and technology, engineering and maths, are getting employers involved. Big companies are getting very involved in the applications to new academies, and that is a very good thing, especially to help them take in young people doing apprenticeships based in these 16-19 academies and working closely with the employer. That is a good thing.
I notice from the Explanatory Memorandum that there is no guidance specific to the amendments, given that they are consequential, but it comments that guidance on how to apply to become an alternative provision free school for existing non-maintained new providers is available on the DfE website. I gave the Minister notice today as we came into the Committee that I would ask him to look at the guidelines to make sure that they are not too tight and do not thereby exclude organisations that we really need in order to provide for certain special kinds of children—for example, the Red Balloon organisation, which provides for children who have been severely bullied and are self-excluding from school. These are young people who do not necessarily have a special educational need or a physical disability. Very often they are extremely bright but cannot go to school because they have been severely bullied. The guidance as it stands on applications to become a free school excludes organisations such as that, and possibly others that I do not know about. Will the Minister look at the guidance to see whether it can be a little more flexible so as not to exclude such worthwhile organisations?
Baroness Hughes of Stretford
My Lords, as the Minister said, the regulations on alternative provision academies are consequential and therefore rather technical and limited. He described what they are seeking to do and I have no issues with either of those aspects. However, I would be grateful if the Minister took the opportunity to clarify three issues on the principle of alternative provision academies with regard to the implementation. I have questions in three areas. First, how will alternative provision academies work in practice in a local area? Secondly, what will the funding level be? Thirdly, how will accountability be applied, given that it cannot be applied in the same way as a mainstream school or academy?
On the first point, which at this stage is the most important, how will an APA work in practice in a local area? As the Minister said, currently the local authority ensures that there is sufficient provision in an alternative setting, a pupil referral unit, and that there are sufficient places available for the local schools in that area to place a child when a child needs placement outside mainstream education, whether because of illness, exclusion, behavioural problems or whatever. The pupil referral unit is the resource for all the other schools locally and takes referrals from those schools; by definition, it does not have a normal admission process. The objective, one hopes, is to return the child to a mainstream school, either the one that they left or another one, as soon as possible.
If a pupil referral unit becomes an alternative provision academy, it will, as the Minister said, have all the freedoms and independence that other academies have in law. I see the argument that those freedoms are necessary to raise standards in alternative provision, and it is certainly the case that in some of our alternative provision those standards are far too low, even taking into account the difficult circumstances of some of the children. However, if an alternative provision setting has all those freedoms, how will that work in practice? Who, for example, will commission the places in an alternative provision academy? Will it be other mainstream schools? Will it be the local authority? Will the APAs themselves be able to determine the level of provision—that is, the number of places—that they will provide in that academy? If so, will that necessarily match the level of need and demand from the other local schools? Under this new regime what obligation will the alternative provision academy have to accept children referred by other schools? Will they, as now, be obliged to accept them?
Presumably the APAs—independent establishments—will be funded according to the number of pupils they have. I am concerned that as independent units, dependent on that funding, there may be the development of a perverse incentive for APAs to hold on to pupils because that is where their funding is coming from, rather than as now—where there is no such funding relationship—returning those children as quickly as possible to their mainstream education. How will a pupil actually get out of an APA, and who will be responsible for ensuring that the decisions taken about that child—whether they stay in the APA, for how long, when they leave and where they go—are in that child’s best interests? What responsibility will the referring school have for monitoring that child’s progress, looking to the eventual outcome for that child and whether it is the best that could be? What responsibility will the local authority have, if any, for monitoring the progress of the children collectively in the APAs in their areas?
All of this, I am afraid, is still very unclear to me. I may have missed something, but it seems to me, and I am not against the principle, that we are changing very profoundly the dynamics of the relationship between alternative provision and mainstream schools, whether they are schools or academies. In making the alternative provision an academy, with all of those freedoms, it is not clear where the reciprocity will lie and who will be responsible for the children.
Briefly, I have two other points. One concerns funding. I think the Government have said that the funding will follow pupils into APAs and that it will be set at a high need level. This level has yet to be announced. Can the Minister say when this will be announced and how the level of funding will compare to that in mainstream schools?
The third point is also important. It is clear to me that the usual accountability measures for mainstream schools cannot apply in quite the same way here. How will APAs be held accountable for their children’s progress or lack of it? Are the Government considering, for example, a payment-by-results model, as they are within the criminal justice system? By what yardstick will children’s progress be measured? I agree with the Minister’s comment that children’s low levels of attainment in some alternative provision is lamentably low and we should not accept it. Equally, these children are often facing multiple problems, and they need significant amounts of help in overcoming the barriers to learning that those problems engender. I am not clear about how being in an independent academy will help children to access the level and quality of extra support they need, much of it from local authority children’s services and health services. In becoming an independent academy, the relationship between that provision and the local authority and the other children’s services will be changed quite fundamentally and will, necessarily, be more distant.
Those are my three concerns. I know there are a lot of questions there, and if the Minister cannot deal with all of them in detail, I am quite happy for him to write to me. The issues which I raised in the first group of questions about the new relationship, how that will work locally and who will be responsible for the child, are particularly important. If he cannot give me answers today, then perhaps later.
Lord Hill of Oareford
My Lords, I am grateful for those comments and for the support expressed for the development of alternative provision academies. I can tell my noble friend Lady Walmsley that in the first round we had a number of proposals for alternative provision free schools. I hope that they will be able to open this September and that, in the round for 2013 that closed at the end of February, there will be more application for alternative provision free schools. There is a lot of enthusiasm for them.
My noble friend is right that there are questions about this. In some ways, they link to the points raised by the noble Baroness, Lady Hughes of Stretford, about the referral mechanism. Unlike with mainstream schools where, as it were, parental choice is the determinant of the placement, it is still the case with alternative provision free schools that the local authority or a school is the referral mechanism. That leads to some questions that we need to work through about when some providers want to set up in areas where a local authority may be less keen on a more varied landscape. If the local authority is not prepared to make that referral, there are issues for us to think through. I know those issues are very much in my noble friend’s mind.
Let me do my best on the thrust of the points raised by the noble Baroness, Lady Hughes. If there are some things that I do not pick up, I will follow them up. On the accountability of alternative provision academies to the local community, their funding agreements will require them to be at the heart of their local community. They will be accountable through their performance, which will be published in the same way as other schools. They will be inspected by Ofsted like other academies. There are a number of accountability mechanisms. They are obviously accountable through the funding agreement that they sign with the Secretary of State.
On funding, currently they will be funded through interim arrangements. The noble Baroness referred to an earlier announcement that we made, saying that the funding would come out of what is called the higher needs block. The principle of that, as she knows from other areas of academy funding, is to have equivalence with the funding that would go to a PRU. That is what we want to replicate. We want an AP academy to get the same funding that it would have received as a maintained PRU. We have put interim arrangements in place to make sure that that happens. The longer-term answer to the noble Baroness’s question will come out of our response—which we will publish before too long—to the consultation, which has ended, on our broader reforms to the funding system. As part of that, we will set out our longer-term thoughts on how funding for alternative provision academies and other parts of what one might call higher needs funding—such as special needs funding—will be dealt with going forward. I hope that we will be able to make that clear before too long.
I was asked another question on the role of the local authority. As the noble Baroness said, local authorities will retain their Section 19 duties to arrange suitable full-time education. That relationship with a converted PRU would obviously change a bit over time in the sense that the local authority role would move from being the direct provider to a commissioner of services, along the lines that I think were set out in the schools White Paper of 2005.
An important contextual point in all this is that we all want as few children as possible to go into alternative provision, and the earlier we can pick them up and put support in place, the fewer will end up doing so. Therefore, as part of the broader context, we are running trials based on the very good work that went on in Cambridgeshire to give schools responsibility, including budgetary responsibility, for an excluded child. That gives a school an added incentive to make sure that the child is looked after as well as possible and reintegrated as quickly as possible, if that is the right course of action.
As I have already touched on, pupils will be referred to AP academies in the same way as they currently are to PRUs. Under the new system, we would expect schools to work closely with professionals to ensure that pupils get the provision which best meets their needs. We do not think that we should be more prescriptive than that at this point.
The noble Baroness, Lady Hughes, asked me whether AP academies will be obliged to accept a pupil. Again, the referral mechanism will be the same as now, so the success of an AP academy will depend on its ability to meet the needs of its local community. If a local authority or other commissioner does not think that the alternative provision academy is doing a good job, it will not want to refer pupils to it, and I think that that will act as a discipline for the schools to make sure that the children are properly looked after. It will therefore be in the interests of AP academies to have strong links with the local authority and with local schools.
I hope that I have dealt with the main points. I shall obviously read the noble Baroness’s comments and, if I can add anything further, I shall write to her. With that, I hope that we can accept the order.
Baroness Hughes of Stretford
Perhaps I may come back briefly on the point that the Minister has just made. My question about referrals hinges not on whether the changed status of the alternative provision organisation as an academy means that if a local authority is not happy it might not want to make a referral but, rather, whether the changed status—the independent status as an academy—means that an APA will be able to refuse to take a referral, unlike the current situation with PRUs. Therefore, my question was whether the change in status would change the power of the APA.
While I am on my feet, I wish to make two other quick points. The Minister mentioned that the pilots would look at whether the referring schools could have continuing budget responsibility for a child and continuing responsibility for his or her progression through school, and I know that the Government are looking at that. However, does the Minister envisage that with APAs the referring school will continue to have responsibility for overseeing the progress of the child and for holding the ring in bringing people together to look at the issues and at whether the child is making progress? If the referring school does not do that, who will? It does not seem to be right for a child simply to be placed in an APA and for the APA to be the sole arbiter of what happens to that child in future. I think that, as is currently the case with pupil referral units, somebody outside the APA should monitor the situation, call case conferences if necessary and make sure that decisions are taken in the best interests of the child.
Lord Hill of Oareford
My Lords, again, I shall give short answers and will follow up further in writing. On the pilots, my understanding is that, alongside continuing budget responsibility, APAs will have responsibility for the child’s progress, and I think that they would perform the kind of role that the noble Baroness is contemplating.
On her first question—whether the greater independence of an alternative provision academy would mean that it could refuse pupils; and I am sorry if I got it the other way around—she will know that currently PRUs are able to refuse children if those units feel that the provision they offer is unsuitable, and they can suggest another provider that might better meet the children’s needs. We think that AP academies would continue to play a similar role, and that in general they would have an interest in taking a pupil for the right reasons—and for financial reasons, if one wants to think of it that way. We would envisage them advising local authorities and schools on the best way to choose the right provision for an individual child. That is my “off the top of the head” answer, but if I can add anything further, I certainly will. I hope that we can support the order.
Children Act 2004 Information Database (England) (Revocation) Regulations 2012
(12 years, 8 months ago)
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Lord Hill of Oareford
That the Grand Committee do report to the House that it has considered the Children Act 2004 Information Database (England) (Revocation) Regulations 2012
Relevant Document: 41st Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, these regulations will revoke the Children Act 2004 Information Database (England) Regulations 2007, which are commonly known, fortunately, as the ContactPoint regulations—and I shall henceforth refer to them as such in the interests of brevity. The ContactPoint regulations place duties on all local authorities in England to participate in the operation of the former ContactPoint database. They specify what information can be held, who provides it, how long it can be retained and how its accuracy is to be maintained, as well as who can be granted access to it.
As noble Lords will know, ContactPoint was decommissioned back in August 2010. Although I know and am very clear that the purpose behind ContactPoint was a good one—to address the issue that was rightly flagged, whereby professionals need to share information about vulnerable children—we felt that the way it was executed was disproportionate, and that it was unjustifiable to hold information on every child in England and make it accessible to hundreds of thousands of people. It was a commitment in both the Conservative and Liberal Democrat manifestos to close it. The simple point is, therefore, that without ContactPoint there is nothing for the ContactPoint regulations to apply to.
It is true that we could have revoked the ContactPoint regulations at the time, but we decided not to because it might have been possible to amend them to support a more proportionate approach to information sharing. We wanted to explore the practicality of a new national signposting service to help practitioners find out whether another practitioner is working, or has previously worked, in another area with the same vulnerable child. That was why we asked Professor Eileen Munro to consider the potential value of such a service.
In May 2011, Professor Munro issued the final report of her review. She concluded that the arguments for and against a national system were finely balanced and that there was no compelling case to recommend one at that time. We accepted that conclusion and therefore do not see any reason to retain these regulations. It is simply good housekeeping to remove them.
That was, of course, just one of a number of conclusions reached by Professor Munro, and I should like to say a little more about her review and put the narrow issue regarding these regulations into a slightly broader setting. Professor Munro’s review of child protection was the very first review commissioned by the Department for Education and reflected the importance that we attach to child protection, and to trying to get it right. In light of her findings, we are now committed to taking through a package of reforms to improve the child protection system in this country.
The general message from Professor Munro was that we needed to move towards a child protection system with less central prescription and interference, where we placed greater trust and responsibility in skilled professionals at the front line. Like her, we want a shift in mindset and relationship between central Government, local agencies and front-line professionals working in partnership.
Baroness Walmsley
My Lords, I very much support the abolition of ContactPoint. Setting up a monumental database to cover every child in the country was a terrible waste of money. It had a danger of setting up a tick-box mentality, and there were safeguarding issues because it was quite widely accessible. We had to set up all kinds of safeguards for the people who had access to it. At least some of the savings should be spent on better training for professionals in the children’s workforce in how to work effectively with other professionals in the children’s workforce. That would be a far better way to spend the money, so I very much support the regulations.
Baroness Hughes of Stretford
Briefly, my Lords, as the Minister said, this is a very limited set of regulations in its intent. Given that ContactPoint has gone, I will not say anything about those regulations. I just put a couple of points on record in respect of the wider context that the Minister outlined.
First, as someone involved in the implementation of ContactPoint—sweating blood over it would not be too excessive a statement—it was never intended that it of itself could protect children. However, the recommendations from equally august people as Eileen Munro that we ought to try it came about because every inquiry, from Maria Colwell through to Jasmine Beckford, Victoria Climbié and even, to some extent, Baby Peter, identified to a lesser or greater extent the repeated failure, despite all those inquiries over 30 or 40 years, of professionals to share information properly.
One reason for that is that the local solutions that the Government are now asking local areas to put in place were always variable at best and, in many instances, were totally inadequate. They ran into the buffers of particular agencies—health is an example in many places—which felt that the law did not allow them to share information. It needs decisive government action to make it clear, as we tried to do, that those barriers do not exist. I do not mean this unkindly, but many professionals in local areas take a default position of, “We cannot share information”. That is what has happened and many children have lost their lives because of it.
There is a second, more practical reason, which ContactPoint, cumbersome though it might have been, was designed to address. For example, as a social worker, a referral from a school expressing concern about a child might land on your desk. If it is completely cold, your only contacts at that point are the school and the address of the child and their parents. You do not know, and it is often very difficult to find out, who else has been involved with or might have had concerns about that child in the recent past. It is very hard to get that information and put it together. You cannot call a case conference because you do not know who to call to it.
I must put on record that ContactPoint was never a database of information about children, as the noble Baroness, Lady Walmsley, maintained; it was a database of professionals. It was simply a list of the people who were connected to a child, such as their school, their GP and any other professional who had provided a service. If you, as a professional, got a referral about a concern, you could look on the database not for the details of the child—their background, history or circumstances—but for a list of professionals who had been involved in one way or another. That does not transgress that child’s human rights or reveal any information about that child. You would have to go to the professionals and ask for the information in order to get it. The database would never have given it to you.
Therefore, I do not think that local solutions will cut it. We have tried them over decades and they have not worked. Facilitation from government is needed. While I am very much in favour of building up professionals’ capacity to use their judgment more effectively, I disagree profoundly with Eileen Munro’s belief that that will simply happen without central government drive, commitment and clarification—not necessarily prescription. I simply say to the Minister: be very wary. I am not at all sure that what is being put in place instead of ContactPoint will prevent the death of another child through the failure of professionals to share information. We need a stronger system to ensure that that does not happen. Much has been tried over the years and nothing has yet worked. I am sorry that ContactPoint did not have a chance to prove whether it could have been better.
Lord Hill of Oareford
My Lords, the noble Baroness, Lady Hughes of Stretford, talked about sweating blood, and I can completely believe that she did. One starts with the simple thought that it must be possible with the use of technology in the modern age to share information more successfully than has been possible before, and there must be a rational way of delivering that through a national system. My own limited experience is that you say something in the department that sounds quite simple and before you blink you have procurement frameworks, complicated systems and national everything, and something that you thought was quite modest and rational turns into a huge thing with a life all of its own. Therefore, I understand how trying to implement it must have felt.
I also know, and it was clear from the noble Baroness’s remarks, how strongly she feels about the subject and how much she knows about it. She says, rightly, that our challenge is to try to make a more local approach work. With regard to her specific point, which I think was one of the issues that the noble Lord, Lord Laming, originally raised, the misconceptions about data protection, either genuine or used as a pretext for a default position of doing nothing, have been a problem. In the revised guidance that we will be issuing later this year, as I mentioned, we will need to make that clear and respond to the point that misconceptions about data protection cannot be used as an excuse not to share information. Therefore, that is one way of dealing with the matter.
There are also other ways. One would not want to rule out the intelligent use of IT in certain settings in order to share information at an appropriate level. The example that I referred to—the work that we are doing with the Department of Health on sharing information regarding children who might be moved around from one A&E to another by their parents or carers—may be another way in which we can deal with that.
On the point raised by my noble friend Lady Walmsley regarding the money that we are saving, we have spent about £244 million on ContactPoint. We are committed to funding high-quality training—for example, with our programme of social work reform, building on the work of the social work task force that the previous Government introduced.
I accept the challenge that the noble Baroness, Lady Hughes, set out. We are all committed to trying to ensure that it works. With that, on the narrow point on the revocation, I hope that we are able to accept these regulations.
Insolvency Act 1986 (Disqualification from Parliament) Order 2012
(12 years, 8 months ago)
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Lord Shutt of Greetland
That the Grand Committee do report to the House that it has considered the Insolvency Act 1986 (Disqualification from Parliament) Order 2012
Relevant Document: 21st Report from the Joint Committee on Statutory Instruments
Lord Shutt of Greetland
My Lords, the purpose of this order is to bring the law as it applies in Northern Ireland into line with England and Wales in relation to parliamentary disqualification resulting from personal insolvency. The law applying in England and Wales was amended by the Enterprise Act 2002. Someone who is bankrupt is no longer disqualified from sitting or voting in Parliament and, in the case of a Member of the House of Commons, will no longer lose his seat after six months. Someone against whom a bankruptcy order has been made will be disqualified from Parliament only if he becomes subject to a further order, termed a bankruptcy restrictions order, or if he gives a bankruptcy restrictions undertaking.
Bankruptcy restrictions orders are made by the courts and bankruptcy restrictions undertakings are given to the Secretary of State or, in the case of Northern Ireland, to the Department of Enterprise, Trade and Investment. They are a means of placing a bankrupt under continuing restrictions following his discharge on the grounds of being culpable. Discharge from bankruptcy normally takes place after one year.
The 2002 Enterprise Act aimed to provide a modern bankruptcy regime, allowing those who have failed honestly to have a second chance. A second objective behind the provisions of the 2002 Act dealing with personal insolvency was to protect the public from the actions of the culpable. That is why there is provision for a regime of bankruptcy restrictions orders and undertakings. It would not be right to allow a person who has been found to be culpable to continue sitting or voting in Parliament or to be elected as a Member of Parliament.
A system of bankruptcy restrictions orders and undertakings equivalent to the one operating in England and Wales was brought in for Northern Ireland by the Insolvency (Northern Ireland) Order 2005. The necessary preconditions are therefore in place to allow the making of the order that noble Lords are being asked to approve.
The order will have the consequential effect of amending the grounds for disqualification from the Northern Ireland Assembly because, under the Northern Ireland Act 1998, a person is disqualified from being a Member of that Assembly if he is disqualified from membership of the House of Commons, other than under the House of Commons Disqualification Act 1975.
This order will extend the benefits of a more liberal disqualification regime to Members of this House, Members of the other place who are from Northern Ireland and Members of the Northern Ireland Assembly. I beg to move.
Lord Rennard
My Lords, I shall be very brief because the principle behind the order is without any significant controversy, and I note that the Explanatory Notes say that no consultation is necessary on this order. I would ask whether any consultation with the Electoral Commission was considered, particularly over the issue of making candidates and potential candidates aware of changes in relation to eligibility and disqualification.
I ask partly because of the controversy in Wales last year when two Assembly candidates were subsequently found to be ineligible for membership of the Welsh Assembly. Out-of-date information was provided to them by the Electoral Commission. Every time we change the rules about eligibility to stand for bodies or on disqualification, we need to make sure that candidates and potential candidates are aware of the up-to-date rules. Perhaps the Electoral Commission should be involved in making sure that people know where they stand in relation to matters such as this.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord, Lord Shutt, for his detailed explanation of the order. As the noble Lord, Lord Rennard, says, it is not controversial and it is one that we would also support, having introduced the original legislation in 2002 for England and Wales. It was a very sensible piece of legislation, which was then introduced by my noble friend Lord Mandelson. Since the Northern Ireland DETI, of which I am a former Minister, brought its own legislation into line in 2005, it is a bit of a shame that it has taken us so long to bring what happens in England and Wales also into line.
I have only one question for the noble Lord. I, too, noticed that there was no consultation. It is highly unusual for Northern Ireland legislation not to be consulted on, but given that the original 2002 legislation and the 2005 order had been consulted on, there was clearly no need. My comment is not unrelated to the information supplied by the noble Lord, Lord Rennard, on the arrangements for sharing information across jurisdictions.
I notice that the Explanatory Notes make it quite clear that the Department of Enterprise, Trade and Investment has to notify the Speaker of the House of Commons or House of Lords if it accepts a bankruptcy restrictions undertaking from a Member of that House or if there is an order. Again, it responds to candidates. It is clear that if somebody was to be appointed to your Lordships’ House, the Appointments Commission would look into their background and would understand if there was a bankruptcy restrictions order or undertaking. However, if somebody was standing for election, how would the information be shared between jurisdictions so that the bodies for which they were standing for election would know the position? Somebody who is subject to an order or an undertaking in Northern Ireland could well wish to stand for a seat in England or Wales, or someone from England or Wales could wish to stand for a seat in Northern Ireland, although that is probably less usual. Therefore, on the point about sharing information between jurisdictions, those standing for election and electoral registration officers who accept nominations for elections should also be aware of this information.
Subject to the satisfactory answers to those questions that I am sure the noble Lord will be able to give, we are entirely content with the order.
Lord Shutt of Greetland
My Lords, some of the information is still to be supplied to me. However, let us get this into perspective. We are talking about Northern Ireland. In 2010-11, there were 1,465 bankruptcy orders. That is the number of people who were made bankrupt in that year. I do not have the precise figure but I am told that a handful of people—perhaps two or three dozen—have had bankruptcy restriction orders. Those are the numbers that we are talking about and, of those two or three dozen, we then have to think about how many might think of standing for elected office. Therefore, we are talking about a very restricted number.
There has been a consultation but it has not been carried out generally because at the moment the order affects only Members of the House of Commons and the House of Lords, although I take the point that those who will be seeking election do not presently sit in either of those places. My briefing note says that public consultation on the order has not been carried out as it affects only Members of the House of Commons and the House of Lords, Members of the Northern Ireland Assembly and, should any of them ever have a bankruptcy order made against them by the Northern Ireland High Court, Members of the Scottish Parliament and Welsh Assembly.
However, the Minister of State wrote to the Speakers of the Commons and Lords and of the Northern Ireland Assembly, as well as to the Chief Electoral Officer for Northern Ireland and the Electoral Commission, to inform them of his intention to bring forward this order. Only one substantive response to this exercise was received, and a Member of this House wrote to Hugo Swire, the Minister of State, in March 2011 seeking clarification on whether the order would ensure consistency in the law relating to the Northern Ireland and Welsh Assemblies and the Scottish Parliament.
The response was that disqualification at Westminster in this case has automatic read-across for the Northern Ireland Assembly. The order will bring Northern Ireland into line with both England and Wales, and bringing forward this order in respect of Northern Ireland will not ensure consistency in terms of Scottish legislation at the same time. However, the reply advised that the Northern Ireland Office is liaising with the Insolvency Service, which is part of the Department for Business, Innovation and Skills, and the Scotland Office to ensure that this is rectified when possible.
On shared information, if the High Court in Northern Ireland makes a bankruptcy restriction order in respect of a Member of the Scottish Parliament or the National Assembly for Wales, the court will notify the presiding officer of that body.
I think that I have been able to respond to the questions that have been raised and, with that, I hope that the order can be agreed.