House of Commons

Monday 14th October 2013 Commons Chamber

Monday 14 October 2013

The House met at half-past Two o’clock

Prayers

Monday 14th October 2013 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Monday 14th October 2013 Commons Chamber

The Secretary of State was asked—

[Andy McDonald (Middlesbrough) (Lab)]

1. What recent assessment he has made of the performance of the Work programme.

[The Minister of State, Department for Work and Pensions (Esther McVey)]

First, I am pleased to inform the House that the Work programme is working, and that its performance has significantly improved since being launched in June 2011. By the end of June 2012, 24,000 people had found lasting work. By June 2013, there had been a dramatic increase to 168,000. I should like to put on the record that credit must go to my predecessor, my hon. Friend the Member for Fareham (Mr Hoban), for his rigorous and meticulous work, which brought about that dramatic increase.

[Andy McDonald]

Of the 10 worst constituencies for longer-term unemployment, seven have seen the number of people out of work for more than 12 months increase, and that includes my own town of Middlesbrough. Why are the Minister’s policies failing so badly among the people and in the places that most need help?

[Esther McVey]

I am pleased to inform the hon. Gentleman that, actually, despite the picture he portrays, work is improving. There have been significant job outcomes across the country—they are up 1 million—and the claimant count is down. Inactivity is at record low levels and the number of households where someone is in work is higher now under this Government than it was in any year under the previous Labour Government.

[Andrew Bridgen (North West Leicestershire) (Con)]

Can my hon. Friend confirm that tackling youth unemployment is a major priority for the Government, and that young people—18 to 24-year-olds—have benefited from the Work programme, with more than 100,000 finding some sort of work through it? Does she agree that the Work programme is working?

[Esther McVey]

I agree with my hon. Friend that the Work programme is working. In particular, let us look at the figures for youth unemployment. The number of 18 to 24-year-olds on jobseeker’s allowance has fallen for 15 consecutive months. It is now 60,000 less than in May 2010. Youth unemployment is down from the numbers we inherited from Labour, and the number of young people not in education, employment or training is at its lowest for a decade.

[Dame Anne Begg (Aberdeen South) (Lab)]

But for one group of people—those who have health problems or a disability—the numbers are truly dreadful. What will the Government do to change their approach so that that group of people is not left behind?

[Esther McVey]

For the first time in history, we are dealing with the people the hon. Lady—the Chair of the Select Committee on Work and Pensions—is talking about. Labour Members shake their heads, but I am afraid that they abandoned those 1.4 million people; we are supporting them. Of those on the Work programme, more than 380,000 are in work, and 168,000 have found lasting work. Ninety per cent. of those have been in employment for nine months or more. We are working on and dealing with that matter, but Labour abandoned it.

[Stephen Timms (East Ham) (Lab)]

I welcome the Minister to her new brief, and the Minister of State, Department for Work and Pensions, the hon. Member for Hemel Hempstead (Mike Penning), to his.

The invitation to tender for the Work programme said that, if there was no programme at all, 15% of people on employment and support allowance, to whom my hon. Friend the Member for Aberdeen South (Dame Anne Begg) has just referred, would be in a sustained job outcome within two years. With the Work programme, the number has been about one third of that. Surely that underperformance is unacceptable.

[Esther McVey]

That is not true at all. We have reached out and supported people who were never supported under the Labour Government. Equally, I would like to separate those on JSA, who have exceeded targets, and those on ESA who must move closer to the workplace, which is what we are statutorily obliged to do, but not to put them in a job. We are doing that. Because of that, we are looking at the programme as a whole and putting further support in for those people. It is successful and, as I have said, Labour failed to do it.

[Stephen Timms]

The Minister should ask her civil servants about pathways to work.

In his spending review on 26 June, the Chancellor of the Exchequer called on the Secretary of State to make a hard-headed assessment of underperforming programmes in his Department. What progress is there with the hard-headed assessment of the Work programme?

[Esther McVey]

The Work programme is not an underperforming programme: 60% of people are off benefits. We continue to modify and improve it, which is only right. We have set up a best practice committee so that people can get even better. There is no underperformance. We are proud of the record. I will tell the right hon. Gentleman one thing: those people who have got jobs, whom he dismisses so discourteously, are very proud of what we have done.

[Alec Shelbrooke (Elmet and Rothwell) (Con)]

2. What recent discussions he has had with representatives of the UN on the under-occupancy penalty.

[The Secretary of State for Work and Pensions (Mr Iain Duncan Smith)]

Strangely, I was not asked to discuss the removal of the spare room subsidy, or any other matter, with the UN representative.

[Alec Shelbrooke]

Does my right hon. Friend share my concern that the UN housing expert made no reference to the 250,000 households living in overcrowded accommodation or the efforts that the Government are making to bring fairness and respect to the welfare system after the mess that lot left it in?

[Mr Duncan Smith]

Mrs Rolnik from the UN appeared over here, seemingly at the invitation of those opposed to all our policies, the Labour, or welfare, party included. I was interested in the notes that came back from the UN after she left. Some of the officials said,

“who is that strange woman; why is she talking about bedrooms and why on earth do we have a UN Housing Rapporteur.”

My thoughts entirely.

[Mr Nick Raynsford (Greenwich and Woolwich) (Lab)]

The statement from the United Nations not only reveals that Mrs Rolnik visited the Department for Communities and Local Government, the Department for Work and Pensions, the Department for Environment, Food and Rural Affairs, the Ministry of Justice, the Homes and Community Agency and Manchester city council, but gives a statement of housing need in this country to which most serious commentators would wholly subscribe. Will the Secretary of State now stop his delusional approach to a scheme that cannot work because there is an inadequate supply of smaller accommodation for people to move into?

[Mr Duncan Smith]

It was the right hon. Gentleman’s Government who left office with the lowest level of house building since the 1920s—[Interruption.] It is higher now than it was under them—nearly 1.8 million on waiting lists in England and 250,000 tenants in overcrowded accommodation. The Opposition never talk about that. Never do we hear them say they were sorry for the overcrowded mess they left behind them. Instead of little gimmicks with people from Brazil, they would be better off apologising for the mess they left us in in the first place.

[Mr Julian Brazier (Canterbury) (Con)]

I commend my right hon. Friend’s robust approach. Does he agree that it cannot be part of any responsible welfare system to support people in accommodation of a size that they do not need when so many families have no proper accommodation at all?

[Mr Duncan Smith]

I agree with my hon. Friend. It is also worth reminding the Opposition that they introduced a policy for social tenants in the private sector that does not allow housing benefit recipients to have spare rooms. So they are being hypocritical in saying that they are against one and in favour of the other.

[Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

How can the Secretary of State continue to defend the bedroom tax when there are not enough smaller properties for people to move into, even if it were the right thing to do?

[Mr Duncan Smith]

I keep reminding the Opposition—and this may be the real reason why they got in such a mess over the economy—that a subsidy is not a tax. They need to understand that a tax is something that the Government take away from people, but this is money that the taxpayers have given to people to subsidise them to have spare rooms. We simply cannot go on like that. I remind the hon. Lady that the Government she was a member of nearly doubled the housing benefit bill in the 10 years they were in power, and that is why we have to take action.

[Robert Halfon (Harlow) (Con)]

Is my hon. Friend aware that there are 4,000 people in Harlow on the council house waiting list, many of whom are not on benefits? Does he agree that the single room supplement will free up housing so that some of those people can get the housing that they rightly deserve?

[Mr Duncan Smith]

I agree with my hon. Friend. The coalition is concerned about people who have to live in overcrowded accommodation. Never do we hear one single comment from the welfare party about people living desperately in the overcrowded accommodation that they left them in.

[Chris Bryant (Rhondda) (Lab)]

The Secretary of State is so out of touch he is even out of touch with his own Minister, Lloyd Freud—[Hon. Members: “Lloyd?”] Lord Freud. It was a Freudian slip.

Last week, Lord Freud admitted that there are not enough one-bedroom properties in this country. How would the Secretary of State describe a Government who tell the poorest in the land that they have to move into a one-bedroom property or pay a substantial penalty when they know that there are not enough one-bedroom properties? Is that perniciously cruel or utterly incompetent?

[Mr Duncan Smith]

I am not closely associated with Lloyd George, but I am always ready to read what he has to say. I welcome the hon. Gentleman to his post, but he is completely wrong. My noble Friend Lord Freud chastised housing associations and others for continuing to build houses that are not required when there is a demand for single bedroom accommodation.

[Chris Bryant]

He didn’t.

[Mr Duncan Smith]

He did. I know he said it, because I read it.

[Lorraine Fullbrook (South Ribble) (Con)]

3. What assessment he has made of the effect of the expansion of the new enterprise allowance on young entrepreneurs.

[Stephen Mosley (City of Chester) (Con)]

7. What assessment he has made of the effect of the expansion of the new enterprise allowance on young entrepreneurs.

[The Secretary of State for Work and Pensions (Mr Iain Duncan Smith)]

The new enterprise allowance offers support for people of all ages who want to start a business—to date, more than 1,700 young people have done so. We now have an additional 60,000 mentoring places available, so many more will be helped in the future. This is a very successful programme.

[Lorraine Fullbrook]

My constituent Paul Williams recently received help from the new enterprise allowance to start up his business, Choc Amor. He has twice moved to larger premises, has recently opened a new tea room and now employs nine people. Does my right hon. Friend agree that Paul Williams is a great example of why we should extend the scheme further, so that other hard-working people with drive and determination can get on in life, start a business and support our recovering economy?

[Mr Duncan Smith]

My hon. Friend is absolutely right. The example she gives is one of many that prove the programme is working. The scheme was due to end in September 2013, but now, as a result of its success, referrals will extend to 2014. More than 54,000 have taken up the mentoring offer and there is an extra £35 million for an additional 60,000 mentoring places. I hope my hon. Friend, and all hon. Members, will ensure that many more people know about the scheme and have the same opportunity as her constituent.

[Stephen Mosley]

Last month, I organised a small business fair in Chester. We had the support of the local provider, Blue Orchid, which seems to be doing an excellent job of helping people to start businesses in Cheshire. There are a large number of providers across the country. What assessment has my right hon. Friend made of their effectiveness?

[Mr Duncan Smith]

For the most part they provide a good service to all constituents and have been successful in all parts of the country. They operate within Jobcentre Plus districts and are monitored locally. If there are concerns, they are raised with the Jobcentre Plus. Their monthly management information flow gives us a very good overview of the scheme. In the north-west, my hon. Friend’s region, 8,000 have started working with a mentor and 4,420 have started claiming the weekly allowance—a big success.

[Bill Esterson (Sefton Central) (Lab)]

Most businesses do not survive beyond the first year, and failing generally leaves their owners significantly out of pocket. Would it not be better to concentrate on boosting the economy to create jobs for young people, rather than recommending self-employment which, sadly, may make matters worse for the vast majority?

[Mr Duncan Smith]

I am sorry to hear the hon. Gentleman cavil about this programme. The reality is that the two are not mutually exclusive. For those who have a good idea and want to start a business, the scheme provides an opportunity that otherwise would not be there. I remind him that approximately 1,800 18 to 24-year-olds, 18,000 25 to 49-year-olds, 6,000 aged 50-plus, who may well have had difficulty getting a job later on, and 4,800 with disabilities who would have been written off under the old scheme, have now started a business.

[Kerry McCarthy (Bristol East) (Lab)]

Will the Secretary of State look at the problems people are having in making the transition from jobseeker’s allowance to the new enterprise allowance regime, particularly with regard to housing benefit? A constituent, who is keen to set up his own business, came to see me the other day, but immediately found that his housing benefit had been stopped. He is of course still entitled to it in the early stages of claiming NEA.

[Mr Duncan Smith]

I am grateful to the hon. Lady for raising the issue and I will definitely have it looked into immediately. It is meant to flow easily. If there is a misunderstanding, or people do not know what it is, we must take that on and ensure that they do.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

25. As Essex has a long and rich tradition of enterprise and entrepreneurial endeavour, I thank the Government for introducing the scheme to support the next generation of business leaders in Basildon and Thurrock. Will the Secretary of State tell the House how many businesses have been started with the support of the allowance in Essex, preferably in south Essex?

[Mr Duncan Smith]

I will get back to my hon. Friend about the more specific details, if he wants. About 26,000 new businesses have started already and the target is to get 40,000 going by December 2013. There are about 2,000 start-ups every single month under this scheme. Out of the first 3,000 people on it, 85% are still off benefit a year later. That is a successful scheme.

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

Is the Secretary of State aware that many Labour Members support this measure, but we are careful about ensuring that the quality of mentoring is good, that the evaluation of the likelihood of success be built on initiatives such as the new scheme of Hertfordshire university and that the scheme leads to long-term sustainable businesses?

[Mr Duncan Smith]

As the hon. Gentleman knows, I have great deal of respect for him, and he is right that much depends on the quality of the mentoring; we are doing our level best to make sure that it is as good it could possibly be. If he has any suggestions about how to improve it further, the door is open and I am always happy to see him and discuss them with him. I would revisit any project he would like to nominate if he wanted us to look at any difficulties and I would consider looking at any improvements that might be worth making.

[Jeremy Lefroy (Stafford) (Con)]

22. I welcome the extension of this excellent scheme to 2014. What discussions has my right hon. Friend had with the Chancellor about extending it further, should it continue to be successful?

[Mr Duncan Smith]

The Chancellor and I of course discuss these matters quite regularly, and the reality is that he is very interested in this scheme. The truth is that a successful economy relies on new business start-ups. This plays exactly into the right arena. In comparison with competitors all over the world, new business start-ups and new businesses are providing the way for us to be successful. I am sure that the Chancellor will readily take my hon. Friend’s suggestions.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

5. What assessment he has made of the performance of Atos Healthcare in delivering occupational health assessments.

[The Minister of State, Department for Work and Pensions (Mike Penning)]

In the last week, I have looked carefully at the key performance indicators for delivery times, which have been met or exceeded. In the last 12 months, they have gone from 93% to the contracted target of 97%.

[Mrs Lewell-Buck]

Last year, my constituent Alan Johnson, a dedicated paramedic, was diagnosed with chronic fatigue syndrome. At 55 years of age, he was advised to retire early. Atos went on to ignore the advice of his GP and his specialist, refused him a medical and told him that he had not had the condition long enough to qualify, and then forced him to return to work. Will the Minister meet me to discuss this appalling case so that Mr Johnson can receive the pension he is due?

[Mike Penning]

Of course I will meet the hon. Lady, but there is an appeals process, and I suggest her constituent goes through that full process—in case he has not—before we meet, as we do not want jeopardise an appeal in any way. This was a problem we inherited from the previous Administration. Occupational health assessments were set up under Atos in 2008; it was not great, but we are working hard to sort it out.

[Margot James (Stourbridge) (Con)]

6. What assessment he has made of the effectiveness of the benefit cap in encouraging people back to work.

[The Secretary of State for Work and Pensions (Mr Iain Duncan Smith)]

It is my strong belief that there is a connection between what is happening with the benefit cap and getting people into work. The findings of polls we conducted show that of those notified or aware that they would be affected by the cap, three in 10 then took action to find work. To date, Jobcentre Plus has helped some 16,500 potentially capped claimants back into work.

[Margot James]

Some of the few families in my constituency affected by the benefit cap have particular issues in accessing employment. Does my right hon. Friend feel that the Work programme has the specialist knowledge required to deal with some of the difficulties that this group sometimes encounter in accessing employment?

[Mr Duncan Smith]

It does, which is the whole point of the Work programme—to get more individuals to involve themselves and to help such people find the right courses, the right application and then the right skilling. The Work programme is able to do that in a more intense way than Jobcentre Plus is, so it should provide enormous help. The reality is that the benefit cap is enormously popular, which may account for why the welfare party opposite has come and gone on this issue from the beginning. First, Labour Members say they are opposed to it; then they say they are for it: we have no idea what they will do about it.

[Glenda Jackson (Hampstead and Kilburn) (Lab)]

A new report by the New Policy Institute and Trust for London shows that 57% of working-age adults and children living in poverty in London are in households that work. That work is almost inevitably low paid and increasingly part time. Will the Secretary of State drop this mantra of making work pay and begin perhaps to discuss with his colleagues the possibility of encouraging a living wage?

[Mr Duncan Smith]

I am always very willing to discuss issues relating to the living wage with the hon. Lady or with anyone else. However, I hope that when the hon. Lady talks to her constituents she is honest enough to tell them that the reason they find themselves in so much difficulty is that the last Government made such a mess of the economy, and caused so many people to collapse into low incomes and very poor jobs. It was the Labour party that caused that. We are changing it, and restoring the previous position.

[Mr David Ruffley (Bury St Edmunds) (Con)]

The European Commission said this morning that more than 600,000 EU migrants live in this country without working. Does my right hon. Friend agree that we could cap the benefits paid to those individuals by introducing a more stringent residence requirement, and by insisting that they have a longer social security contribution record?

[Mr Duncan Smith]

I have not read the report in any detail, but I do know that the 600,000 figure does not necessarily refer to people of working age who could be working. There is a big question mark over the number of people to whom it relates. I do not want to find myself in the middle of a debate between some of the media and the European Union, so let me simply say that our own assessment—our habitual residency test—currently prevents people who could be working and not on benefits from claiming those benefits. It is the Commission that is trying to get us to change that, and I am utterly refusing to do so.

[Alex Cunningham (Stockton North) (Lab)]

The unemployment rate in my constituency is nearly 9%. One mother whose benefits have been capped has little opportunity of getting a job, especially as she has several small children to look after. She is putting feeding and clothing them and paying bills ahead of paying her rent, so her landlord, Miguel Contreres, is receiving just £30 a week. Can the Secretary of State provide a fair alternative to the landlord’s throwing that mother and her children out on to the street?

[Mr Duncan Smith]

Can we please return to reality? [Interruption.] I love the fact that my new shadow, the hon. Member for Leeds West (Rachel Reeves)—whom I welcome to her position—was out over the weekend saying “We are going to get really tough on benefits”, and at the first opportunity Labour Members are carping about the cap and the spare room subsidy. The truth is that the cap applies to people with average earnings. May I ask the hon. Gentleman what he might like to say to those who are trying and working hard, and who wonder why people on benefits are earning more than they are?

[Sir Bob Russell (Colchester) (LD)]

8. How many individual cases were raised with the Child Support Agency by hon. Members in 2012.

[The Minister of State, Department for Work and Pensions (Steve Webb)]

Out of 1.1 million cases registered with the Child Support Agency, hon. Members raised 7,540 with the agency. That is still too many, but I am pleased to tell my hon. Friend that 12% fewer letters were received in 2012 than in 2011.

[Sir Bob Russell]

I think that that is a bit of an underestimate. The figure is certainly lower than I expected it to be, given that the hon. Member for Colchester has raised more than 1,000 cases in the past 16 years. Does the Minister agree that if a Member of Parliament is having to make representations to the CSA, those cases constitute failures?

[Steve Webb]

I do not have figures showing how many of the 7,000 or so letters came from my hon. Friend, but I suspect that a fair proportion of them did. However, he is right to say that matters should not have to reach the stage at which a Member of Parliament has to raise a case. We are reforming the CSA for that reason, and we believe that the new 2012 system will provide much better customer service.

[Philip Davies (Shipley) (Con)]

When dealing with CSA cases raised by constituents, one is left with the feeling that the CSA has strayed from its original remit, which was to chase absent fathers. It seems that the agency has filed that under “too difficult”, and is now pursuing people who are already paying in an attempt to extract more money from them. Can the Minister find a way of restoring the CSA’s original purpose, which was to chase absent fathers rather than hounding people who are already trying to do the right thing?

[Steve Webb]

My hon. Friend will be pleased to know that the thinking behind our reforms is to ensure that when families can sort things out for themselves, they do so. That will enable the CSA to pursue the remaining cases involving absent fathers—or mothers—much more vigorously, so that those who are refusing to pay feel the full force of our enforcement action.

[Steve Brine (Winchester) (Con)]

9. What steps he is taking to reduce waiting times for work capability assessments.

[The Minister of State, Department for Work and Pensions (Mike Penning)]

The work capability process was introduced by the previous Labour Administration in 2008. We are committed to ensuring that work capability assessments are as fair and accurate as possible in determining who is fit to work and when they can return to work. The Department has instructed Atos to introduce a quality improvement plan, as was announced in this House by written statement.

[Steve Brine]

I thank the Minister for that. Can he just confirm that nobody will be worse off as a result of the necessary push on quality that he has just mentioned and the slow-down it may cause for some of our constituents?

[Mike Penning]

No one will be worse off. Quality is very important, so as to ensure that when the assessments are done the first time, they are done accurately and do not have to go back on appeal. If there is an overpayment to someone because they are assessed at a lower rate, they will be able to keep that payment.

[Tom Greatrex]

The Minister’s predecessor, who is in his place, previously said from the Dispatch Box that one reason for the number of incorrect decisions was people not providing the right medical evidence. May I invite the new Minister to have a look at the wording of the ESA50 form? It states:

“If you have any medical documents that you think will support your claim, send them in with your questionnaire. For example, this could be a medical report from your doctor, consultant or support worker.”

It then says, immediately afterwards:

“Please do not send medical statements”.

It is little wonder there is confusion.

[Mike Penning]

In my first week, I must admit that I have not had a chance to look at that part of the form. I will do so, and if it needs amending I will do that.

[Mr Philip Hollobone (Kettering) (Con)]

Will my hon. Friend undertake a work capability assessment on the Ministry of Justice, because the waiting time for appeal hearings for WCA claims is now up to 40 weeks in the Kettering area? That is completely unacceptable.

[Mike Penning]

I think we all accept that the delays are unacceptable. We need to ensure that the assessments are done correctly when they are first done, and the Department is working closely now to make sure that they are assessed before they get to the referral situation.

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

The changes to the WCA appeals process that are due to come into effect later this month will put some very sick and disabled people in a dreadful position, whereby those who are clearly unfit for work and are appealing a bad decision by Atos will be unable to claim any replacement benefits for the duration of the reconsideration process because being able to work is a prerequisite for claiming jobseeker’s allowance. What assessment has the Minister made of the impact that these changes will have on local authorities, housing associations and primary health care?

[Mike Penning]

As the Minister of State for disabled people—a brand new role, with not a junior Minister but a senior Minister—it is my role, across government and including local authorities, to make sure that the system is working. Where there are problems, I will look at them. I will be working closely with all the authorities that the hon. Lady has suggested, but I do not accept her premise as to how many of them will be worse off.

[Rosie Cooper (West Lancashire) (Lab)]

10. How many former Remploy workers are now in employment.

[The Minister of State, Department for Work and Pensions (Esther McVey)]

At 4 October 2013 1,326 disabled former Remploy workers are engaging with personal case workers to find jobs; 535 are in work, and 390 are on Work Choice and training, which makes a total of 925 in work or training.

[Rosie Cooper]

Notwithstanding that answer, more than 93% of disabled people on the Work programme are simply failing to find work. I put it to the Minister that the Government’s record on disability employment is simply a disgrace and is another example of the Government talking big and tough but failing to deliver.

[Esther McVey]

The hon. Lady has bounced across various subjects there, but may I just put on the record the fact that the Remploy factories had faced an uncertain future since 2008 and that her Government closed 29? We have sought to support the people involved in the best way possible, and so 925 out of the 1,325 are in work or training. We are talking about significant support and significant movement into work; the rate is higher than the one relating to regular redundancies. As I said before, the Work programme is working. It has significantly improved under my predecessor and we will continue that.

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

I welcome the information that the Minister has given about the role that Work Choice has played in helping former Remploy employees. Will she confirm that we have no plans, despite rumours I am hearing, to roll Work Choice up into the Work programme? Such an approach would lose the specialisation that has made Work Choice the success it has been so far.

[Esther McVey]

My hon. Friend is right. Work Choice has been a success. We are looking at the disability employment strategy. For the first time ever we are considering greater segmentation and greater differentiation, and the greater support that is needed. We have also engaged with business as never before. We have started a two-year disability confident programme, engaging with 430 businesses and 35 of the FTSE 100. We need employers to work with us to give these people jobs.

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

19. In the same way that the miners’ buy-out of Tower colliery succeeded in sustaining well-paid jobs and exposed the lie that every pit was uneconomic, does the reopening this week of the former Forestfach Remploy site in the constituency of my hon. Friend the Member for Swansea West (Geraint Davies) with workers’ redundancy money give the lie to the need to shut so many viable Remploy factories, such as that in Bridgend, where the workers and management had both the business case and the burning desire to keep the factory open?

[Esther McVey]

I think that the hon. Gentleman does not really understand what happened with the whole set of Remploy factories. In 2008, the Labour party put in £555 million for a modernisation plan that failed. Those factories that can exist as viable businesses are doing so. We have helped them in that. We have supported them, and more than nine have reopened. Of those that could not, we have got some of the employees into work and others are opening up as social enterprises. The Opposition tried and failed. We are doing something about this and supporting those people.

[Mr Dominic Raab (Esher and Walton) (Con)]

11. What steps he is taking to get the long-term unemployed into work.

[The Minister of State, Department for Work and Pensions (Esther McVey)]

From next April, those hardest to help jobseekers returning from the Work programme will get the intensive support they need to get a job. A third will sign on every day; a third will go on community work placements for six months; and a third will receive intensive support from Jobcentre Plus.

[Mr Raab]

Research for the Institute for Fiscal Studies shows that since 2010, the Government’s welfare reforms have already increased tax incentives to work and cut welfare disincentives by 6%. Does my hon. Friend agree that we must continue this recalibration of the system to end the dependency culture that the last Government left behind and ensure that hard work pays?

[Esther McVey]

My hon. Friend is spot-on. That is exactly what we said we would do—a recalibration; a rebalancing of the economy—to get more people into private enterprise and to make fewer people state dependent. We have done that with 1.4 million jobs in the private sector. Opposition Members said that it was not possible. This is down to an environment that we have set and the great British businesses that have provided this employment.

[Lucy Powell (Manchester Central) (Lab/Co-op)]

It is good to be back. The Minister will be aware that a key barrier to many long-term unemployed women returning to work is the prohibitively high cost of child care. What is she doing to ensure that work will always pay once universal credit is implemented, given the concerning findings of the Resolution Foundation published yesterday showing the opposite to be the case?

[Esther McVey]

I am very proud of our Government’s policies, which have got a record number of women into work and supported them into businesses and in setting up their own businesses. Of those in part-time work, 80% have chosen that work, some of which fits in with their life balance. We are supporting women with child care. That is a difficult job, especially as the price of child care went through the roof under Labour. We are particularly supporting them under universal credit, and, as I said, all credit to this Government.

[Miss Chloe Smith (Norwich North) (Con)]

I welcome the Minister to her place and encourage her to come to Norwich to see the steps that I and a really great team of volunteers are taking to get Norwich’s youth unemployment down. We call it Norwich for Jobs and we have already got literally hundreds of young people into work. Her predecessor had kindly agreed to visit the team; would she like to do the same?

[Esther McVey]

If it was good enough for my hon. Friend the Member for Fareham (Mr Hoban), it is good enough for me, and I will be there.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Is it not the case that the Secretary of State has been rebuked not once but twice by the chair of the UK Statistics Authority for the misleading, if not false, claims that he is making about the welfare reform programme? Will he take the opportunity to apologise to the House and to the public at large, not least to those on social security, whom the Government continue to denigrate?

[Esther McVey]

I will not be taking this moment to apologise, but I hope that those on the Labour Benches will apologise for the mess they left us, which we have corrected. Employment is up by 1 million since the election and unemployment is down by 400,000. Inactivity records are at an all-time low and the number of people not in employment, education or training is at the lowest rate for a decade. That is what we are doing, and the statistics we are putting out are correct. I am really disappointed that we cannot all celebrate the great work this Government have done.

[Katy Clark (North Ayrshire and Arran) (Lab)]

12. What assessment he has made of the effect of the Government’s housing benefit changes in Scotland; and if he will make a statement.

[The Minister of State, Department for Work and Pensions (Esther McVey)]

All the Government’s housing benefit changes have been subject to full impact and equality impact assessments. We have closely monitored the implementation of the measures and commissioned independent evaluations of the local housing allowance reforms and the removal of the spare room subsidy.

[Katy Clark]

Alex Salmond is coming down from Edinburgh on Wednesday to ask the Prime Minister to scrap the bedroom tax, and the Scottish Labour party is putting a Bill before the Scottish Parliament to stop evictions and provide funding to councils and housing associations for discretionary housing payments. Does the Minister accept that in the meantime, councils and housing associations are under huge pressure to raise rents because of the massive rent arrears resulting from the introduction of the bedroom tax?

[Esther McVey]

What I will say is that we are putting in place support for those housing associations and local authorities that are finding that they cannot come to terms with the issue, although they have had three years to do something and have failed to do so. I would like to talk about the 1.8 million people on housing waiting lists and the 250,000 people in overcrowded accommodation, whom nobody had looked after. We are looking after everybody and supporting them as best we can with discretionary housing payments.

[Sheila Gilmore (Edinburgh East) (Lab)]

Tenants who are not on housing benefits and pensioners are now being affected by the bedroom tax, because councils such as mine are being forced to look at either rent rises or cutting their modernisation programmes because of the impact of the bedroom tax. Will the Minister now look at that again and stop this nonsense, which is not even saving money overall?

[Esther McVey]

There is one point to clarify: pensioners are exempt. If people could get the facts right, it would work better.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

14. What steps the Government are taking on pension charges.

[The Minister of State, Department for Work and Pensions (Steve Webb)]

We have already banned consultancy charges in automatic enrolment schemes and, in the light of the recent report by the Office of Fair Trading, we will shortly be publishing a consultation setting out plans for a cap on pension scheme charges.

[Jesse Norman]

It is extremely difficult for pensioners, and indeed fund trustees, to obtain accurate and timely data about transaction costs, which can have an enormous impact on fund performance. Does the Minister share my view that managers of both private and public funds should be required to publish that information?

[Steve Webb]

My hon. Friend highlights the important point that we need a great deal more transparency about the many different pension scheme charges—the OFT report identified 18 different sorts of charges. We will be looking at its recommendation that the fees he refers to should be reported to governance committees, which will be best placed to act upon them.

[Gregg McClymont (Cumbernauld, Kilsyth and Kirkintilloch East) (Lab)]

It was the Leader of the Opposition who led the way in exposing the pension charges rip-off, only for the Minister to respond—I have the press cutting to hand—by accusing Labour 15 months ago of scaremongering. Now that the OFT has published its damning report, does he not accept that Labour was right all along and that pension charges must be tackled in a serious and timely fashion?

[Steve Webb]

May I first congratulate the hon. Gentleman on keeping his post in the Labour reshuffle, which I understand was codenamed the Blair Ditch project? He says that we need to cap pension scheme charges. What I do not understand is why they were not capped at any point when Labour was in office. Why has it decided to cap them only now? The OFT did not recommend a cap on pension scheme charges. I am sure he was disappointed when he read its report, because he thought that it would. That is why we are now consulting and gathering evidence. We will act where the previous Government did not.

[Fiona O'Donnell (East Lothian) (Lab)]

16. What plans he has to improve the performance of his Department’s programmes referred to by the Chancellor of the Exchequer in his spending review statement on 26 June 2013.

[The Secretary of State for Work and Pensions (Mr Iain Duncan Smith)]

I am cutting the running costs of my Department from what I inherited from the last Government of £9 billion in 2009-10 to less than £6 billion by the end of this Parliament. What is more, by 2016-17 spending on out-of-work benefits will be back at 2008-09 levels. Working with the Treasury, we are always looking to drive down costs further still, and we will make further announcements.

[Fiona O'Donnell]

I thank the Secretary of State for that answer. The Chancellor of the Exchequer called in his spending review statement for a hard-hearted assessment of underperforming programmes in the DWP. Does the Secretary of State accept this review, and what steps is he taking to tackle underperformance in his Department?

[Mr Duncan Smith]

The No. 1 thing we could do was to get rid of Labour—a great move to get more performance and not underperformance, and judging by the performance of its Front-Bench team, that is one of the areas where we ought to start straight away—but I must say to the hon. Lady that we are driving costs down and making savings in every programme. I would love to know this: out of the £80 billion plus we will save as a result of our welfare changes, which the Chancellor welcomes, which ones does she welcome?

[Mr Frank Field (Birkenhead) (Lab)]

How many permanent secretaries does the Secretary of State think he will get through before universal credit is rolled out nationally?

[Mr Duncan Smith]

Universal credit will roll out very well and it will be on time and within budget. We should consider the reality of the record of the right hon. Gentleman’s Government on Departments and the mess they got into. They left us with IT blunders of over £26 billion. With respect to him, as he was not always involved, but the others were, I therefore think they should apologise first.

[Diana Johnson (Kingston upon Hull North) (Lab)]

17. What discussions he has had with Motability on the changes from disability living allowance to personal independence payment.

[The Minister of State, Department for Work and Pensions (Mike Penning)]

DWP Ministers have regularly met the management of Motability to ensure that they are well placed to manage the introduction of personal independence payments and are able to effectively support their customers through this transitional period.

[Diana Johnson]

There are 3,200 people in Hull who have a vehicle under the Motability scheme. What assessment has the Minister made of the number who will lose their vehicle under the new PIP criteria?

[Mike Penning]

We are working very closely with Motability, and if someone does lose their Motability vehicle and they were in the scheme prior to January 2013 there will be a £2,000 lump sum to help. I must say to the hon. Lady that only 30% of people on the higher rate take Motability, but we will work very closely to ensure those who deserve it continue to get it.

[Paul Blomfield (Sheffield Central) (Lab)]

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

[The Secretary of State for Work and Pensions (Mr Iain Duncan Smith)]

Today I welcomed the national roll-out of the claimant commitment across around 100 jobcentres a month from now, mirroring a contract of employment. These contracts are about a cultural shift making it easier for claimants to understand what they must do in return for benefits and that they are in work now to find work. During the pathfinder both claimants and staff have found this helps enormously in focusing people on their requirements and the consequences if they do not meet them. This now marks the next stage of delivery.

[Paul Blomfield]

One of my constituents who is still without a job after his involvement in the Work programme came to one of the public consultation meetings I organised during the recess because he was angered by his experience of the programme. Bright and articulate with a postgraduate degree from Oxford, he had been sent on an eight-week employability course that included the completion of questions by ticking boxes with smiley faces or sad faces. Does the Secretary of State understand why he and others on the course angrily felt it was a waste of time, and does his experience explain why the Work programme has failed the overwhelming majority of people who have been sent on it?

[Mr Duncan Smith]

I just do not agree with that because the reality is that the Work programme figures show that it is performing incredibly well and it will just get better: some 72% of the first tranche or cohort are off benefits; 380,000 people who before were written off by the last Government are now in work; 168,000 are now in sustained employment; and we now know that 90% of those who are in sustained employment go on to another year at least of employment, which is better than any of the last Government’s programmes—cheaper, more effective and better for those trying to get into work.

[Andrew Stephenson (Pendle) (Con)]

T6. As this month marks the first anniversary of automatic enrolment, will the Minister update the House on progress so far?

[The Minister of State, Department for Work and Pensions (Steve Webb)]

Yes, as my hon. Friend says, it has been a year since the first firm automatically enrolled. This has been a striking success. Over 1.5 million employees have been automatically enrolled and the staying-in rates have been far higher, with over 90% of employees who have been placed in a workplace pension remaining in it. It is a superb start and I congratulate all those who played a part in it.

[Rachel Reeves (Leeds West) (Lab)]

Labour Members support the principle of universal credit, but we have repeatedly raised concerns about the Secretary of State’s ability to deliver it. Since 2011 he has consistently promised that 1 million people will be claiming universal credit by April 2014. Will he now tell the House how many people he expects actually to be claiming universal credit by then, and whether he will proceed with the previously announced plans to close down new claims for tax credits by that date?

[Mr Duncan Smith]

May I start by welcoming the hon. Lady to her position? As I told the Committee and have said consistently, universal credit will be rolled out within the time scales we set, and we are planning very clearly to enrol as many people in it as possible. This will be a success. As she says she is in favour of universal credit, perhaps she can explain why Labour Members voted against it at the start and continue to do so.

[Rachel Reeves]

Despite what the Secretary of State says, the truth is that by April next year it will be possible to claim universal credit at just 10 jobcentres out of a total of 772. Meanwhile, the National Audit Office says that £34 million has already had to be written off, £303 million is now at risk, and Ministers have failed to set out how the policy will work. It is a catalogue of errors. Will the Secretary of State tell us how much money spent on the project will be money down the drain? Instead of blaming everybody but himself, would it not be better for him to turn down the volume on off-the-record briefings against his own permanent secretary and start taking responsibility for his own failed policy?

[Mr Duncan Smith]

Just in case the hon. Lady does not realise it, I should point out that this is not a failed policy: it will roll out successfully on time and within budget. Where does the word “failure” apply to that? She is part of a party whose time in office saw more than £28 billion wasted on IT programmes, with complete chaos most of the time it was there. This will roll out on time and within budget. At any time when we announce the new reset, she can, if she would like, come and talk to us about it. Perhaps for once, instead of voting against stuff and then saying she supports it, she might tell us how many of the benefit cuts Labour Members voted against they are now in favour of.

[Mr David Amess (Southend West) (Con)]

T10. Is my right hon. Friend aware that the number of jobseeker’s allowance claimants in Southend West has fallen by 12% in the past year? Will he join me in congratulating everyone on this very encouraging trend?

[The Minister of State, Department for Work and Pensions (Esther McVey)]

I will indeed do that. Although my hon. Friend talks about an average of 14% fewer people claiming in his constituency, across the country the average is 11%, and 400,000 fewer people are claiming since 2010, so it is success all round for this Government.

[Julie Hilling (Bolton West) (Lab)]

T2. With well over 1 million unemployment benefit claimants being sanctioned since 2010, rumours abounding that targets are in place for sanctioning, and all of us facing many desperate people in our surgeries, will the Secretary of State tell us when we will see the results of his investigation into sanctioning?

[Mr Duncan Smith]

It is obvious and clear that Labour Members do not support sanctioning. The reality is that they spend their whole time saying that they are in favour of benefit changes and at every single turn they oppose them. People who deserve sanctions deserve sanctions, and we impose them on those who do not play a part in the system.

[Dr Julian Huppert (Cambridge) (LD)]

People with autism and mental health problems have particular problems with the work capability assessment, and the courts recently found that the test put people with mental health problems at a substantial disadvantage. Will the Minister or the Secretary of State rethink the work capability assessment for those people and pause the process, for which Rethink Mental Illness called?

[The Minister of State, Department for Work and Pensions (Mike Penning)]

I have looked at this very closely in the past week. Of course, lots of groups would want us to look at individual cases. The way the assessment is done is not rigid, and it will evolve. We will look at this carefully, but I cannot make promises on individual groups today.

[Andy Sawford (Corby) (Lab/Co-op)]

T3. Will the Secretary of State confirm whether benefits officers been have told not to sanction people when the only job offered is on a zero-hours contract? Do Ministers recognise that the new claimant commitments mean that people will not actually be able to sign zero-hours contracts without risking losing their in-work benefits?

[Mr Duncan Smith]

The claimant commitment is about people’s obligations under the existing terms. They will have to seek work, attend interviews and try to get a job, and once they are offered a job they must take it. Those are the sanctions coming up under universal credit. People will lose benefits for three months for a first offence, six months for a second offence and three years for a third offence. Right now, zero-hours contracts are legal. If Labour wants to change the law, we want to hear that from the hon. Gentleman.

[Henry Smith (Crawley) (Con)]

Will the Secretary of State update the House on the innovation fund and how it is helping separated families?

[Steve Webb]

This is money designed to help and support separated families. We have spent £6.5 million so far on seven projects in the voluntary and private sector designed to help with things such as mediation. Although it is early days, we have anecdotal examples whereby we have enabled families to function together for the benefit of the child, and whereby the child’s performance at school is improving as well as maintenance flowing.

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

T4. Housing associations in Ogmore are carrying a rising level of debt on their balance sheets as a result of rent arrears. They have a desperate scarcity of one and two-bedroom properties to rent, and yet they have three-bedroom properties lying empty. Is this just a necessary but painful adjustment to the Secretary of State’s benefit and bedroom tax changes?

[Esther McVey]

This is something we have to do. I have answered this before: how many people we have to look at who are on waiting lists, how many are in overcrowded housing, and how the bill doubled under Labour. The hon. Gentleman is quite right—we have to get the stock right: the fact that there are three-bedroom houses and why in the last three years they have not been modified into one and two-bedroom houses. Those questions have to be asked. That is what we have to do: get the stock right and support people as best we can.

[David Mowat (Warrington South) (Con)]

The pensions Minister mentioned earlier that the Office of Fair Trading report highlighted some of the abusive practices in the private pensions industry, such as active member discount and charges of up to 3% on many schemes. I welcome his consultation, but does he agree that it will be important to put a cap in place before auto-enrolment is rolled out at volume?

[Steve Webb]

My hon. Friend raises the crucial issue that, while the largest firms have been able to negotiate very good charging levels, we cannot be certain that the smaller firms will even be offered them or, indeed, that employers will necessarily be interested in charging levels when it is the employees, rather than the employers, who pay them. Our consultation will touch on that issue and on that of active member discounts.

[Kerry McCarthy (Bristol East) (Lab)]

T5. The Government continue to disregard warnings from the likes of Oxfam and Church Action on Poverty that many of the 500,000 people being forced to use food banks are doing so because of delayed, reduced or withdrawn benefits. The Department seems not to be interested in collecting any statistics behind the reasons for that referral. Will the Secretary of State look into this to see what impact his benefit changes are having on people who simply cannot afford to feed themselves?

[Mr Duncan Smith]

We do spend our time looking carefully to see whether the effects of our policies are negative on some families and how we can best support them. We have localised to local authorities the support for things such as crisis loans. Local authorities are now much better at focusing on what people really need. Our general view is that there are people in some difficulty, but lots of people are taking some of this food because it is available and it makes sense to do so. We are working with local authorities to ensure that those in real need get support.

[Mike Freer (Finchley and Golders Green) (Con)]

What estimate has been made of the annual number of surviving civil partners who qualify for widow and widower pensions?

[Steve Webb]

As my hon. Friend knows, our data on the pension rights of people in civil partnerships are very patchy, but I can tell him that, in response to the Marriage (Same Sex Couples) Act 2013, we have committed to a statutory review. We are gathering data as we speak and we will report back on our proposals by next July.

[Diana Johnson (Kingston upon Hull North) (Lab)]

T8. Given the woeful performance of the Work programme in Hull and local job losses, does the Secretary of State agree with The Economist that Hull’s long-term jobseekers should give up looking for jobs in Hull and travel elsewhere in the country?

[Esther McVey]

I would never put out a message that people should not look for work, because work is vital to self-esteem, motivation and supporting one’s family, so I totally disagree with that statement.

[Greg Mulholland (Leeds North West) (LD)]

The roll-out of universal credit will be complete by 2017, yet the contract for the Post Office card account will be up for renewal in 18 months. What assurance can the Secretary of State give that people will still be able to access their benefits through their post offices?

[Mr Duncan Smith]

I have looked at this matter carefully. The Post Office contract is due to expire in 2015, but there is the option to extend it and we will keep the matter under review. The Post Office is piloting a new current account and we hope that many people will transfer on to that. I assure the hon. Gentleman that we will ensure that those who are in the circumstances that he describes will always be properly supported.

[Ian Austin (Dudley North) (Lab)]

Every single week, constituents tell me that Atos claims that it has not received the forms that they have completed. Last week, a young disabled constituent told me that that had happened on several occasions, leaving him penniless for weeks at a time. Why can the Secretary of State not sort this shambles out?

[Mike Penning]

The personal circumstances that the hon. Gentleman has described are completely unacceptable. If he gives me the details of the case, I will look at it. The performance of Atos is ever so important and it was an issue for the previous Administration. We are working on it, but those circumstances are not acceptable and I will look at the matter.

[Graham Evans (Weaver Vale) (Con)]

Will the Secretary of State confirm that since the benefit cap was introduced, his Department has helped more than 16,000 people who would have been affected by it into work? Does that not show that those who voted against the benefit cap cannot be trusted on welfare reform?

[Mr Duncan Smith]

My hon. Friend is right that the benefit cap is popular and effective. Although the new shadow Secretary of State said that Labour would be tougher on welfare, we have all noticed throughout questions that the only thing we have heard from Labour is opposition to every single spending reduction and welfare reform. That party is not fit for government.

[Mr Speaker]

The hon. Member for Brighton, Pavilion (Caroline Lucas) has been looking doleful for much of questions. I shall do my best to rescue her from her misery.

[Caroline Lucas (Brighton, Pavilion) (Green)]

I am entirely grateful, Mr Speaker, but my dolefulness has more to do with the responses from the Government than with my not catching your eye.

The Government’s main reason for denying women born between 1951 and 1953 the option of receiving the single-tier pension if that means a higher weekly income appears to be the uncertainty about when their husbands will die. That is irrelevant for single, unmarried female pensioners—the poorest of all groups in retirement—who know that they would be better off with a choice. Will the Minister reconsider his policy so that the Government can help my constituents and others like them?

[Steve Webb]

To be clear, we have made one change to the pension position of the women to whom the hon. Lady refers: we have improved the indexation of their pensions by introducing the triple lock. I make no apology for that.

[Several hon. Members]

rose—

[Mr Speaker]

I am sorry to disappoint colleagues, to whose mellifluous tones I could happily listen all afternoon, but we must move on to the statement.

Petition

Monday 14th October 2013 Commons Chamber

Caroline Lucas (Brighton, Pavilion) (Green)

- Hansard - - Excerpts

This petition has been signed by almost 1,300 individuals, the vast majority of whom are residents of my home city of Brighton and Hove. All are rail users who are united by concerns at the rising cost of rail travel and the poor quality of train services. They are particularly concerned that since privatisation the cost of train travel has risen by 23% in real terms and the cost to the public purse of running the railways has risen by a factor of between two and three times. My constituents want to see the public money invested in the railway used to deliver a better service for passengers, while also achieving wider social and environmental goals and real consideration given to bringing rail back into public ownership.

The petition states:

The Petition of rail users and passengers from Brighton and Hove,

Declares that they are concerned at the extremely high cost of tickets for train services provided by Southern and First Capital Connect, which are often overcrowded and unreliable.

The Petitioners therefore request that the House of Commons urge the Department of Transport to take the necessary steps to ensure rail fares are significantly reduced; to introduce minimum standards for on-train facilities; and to deliver a railway run to a high standard, designed as a public service rather than one primarily run to generate a profit.

And the Petitioners remain, etc.

[P001226]

Secondary Schools (Accountability)

Monday 14th October 2013 Commons Chamber

15:32

[The Minister for Schools (Mr David Laws)]

With permission, Mr Speaker, I would like to make a statement on the future of secondary school accountability, following our recent consultation. May I first welcome the new shadow Secretary of State for Education and express our best wishes to his predecessor, the hon. Member for Liverpool, West Derby (Stephen Twigg), with whom we always had a very constructive relationship?

Until now, secondary schools have been judged by the proportion of their pupils who are awarded five GCSEs at grade C or better, including in English and maths. Schools currently improve their league table position if pupils move over the C/D borderline. That gives schools a huge incentive to focus excessively on the small number of pupils around the five Cs borderline. In our view, that is unfair to pupils with the potential to move from E grades to D grades or from B grades to A grades. It is also, paradoxically, unfair to those on the C/D borderline because it leads schools to teach to the test. Ofqual, the Chairman of the Select Committee on Education and others have warned about those adverse incentives.

Indeed, all five of the maths organisations that responded to the consultation said that the current approach harmed the teaching of mathematics. The Association of Teachers of Mathematics said:

“Teaching to the test…results in superficial skills development which means that students are ill prepared for adult life”.

Furthermore, as Chris Paterson at CentreForum has shown, the current accountability framework discourages schools from focusing on the lowest-attaining pupils. In a recently published book, “The Tail”, the authors argue that the past 15 years have seen rises in average attainment in our schools, but not in the attainment of those at the bottom. International surveys such as the trends in international mathematics and science study confirm that position. We need a secondary school accountability system that gives more attention to pupils who are falling behind.

The current measure also permits many schools, particularly in affluent areas, to coast. Those schools find it easy to hit targets based only on five C grades. Although those schools may look successful, C grades are not a measure of success if pupils are actually capable of achieving far more. The accountability system must set challenging but fair expectations for every school, whatever its intake.

The five A* to C grades measure also encourages schools to offer a narrow curriculum. Mastery of just five subjects is not enough for most pupils at age 16. Furthermore, the use of equivalent qualifications means that some students have not been offered a rigorous academic curriculum, which would have served them well. Until this year, a school could offer English, maths and only one BTEC and still have the pupil count as having achieved five Cs or better.

We believe that the system can do much better than that, so we will require all schools to publish core information on their website in a standard format. From now on, there will be four key measures that must be published. The first is pupils’ progress across eight subjects, so a parent will see whether pupils at a school typically achieve one grade higher than expected or one grade lower. The second is the average grade that a pupil achieves in those same best eight subjects. That will show, for example, that pupils in a particular school average a high B grade or a low D grade in their GCSEs. The third is the percentage of pupils achieving a C grade in English and maths. The fourth is the proportion of pupils gaining the EBacc, which will continue in its current form. We will also look at developing a destination measure to show the percentage of pupils in any school who move on to further study or employment, including further training.

We are proposing an important change to how we measure underperformance, and to our floor targets. Rather than the five A* to C GCSEs threshold measure, we will use the new progress measure for the floor targets. That will be much fairer, because it will take into account a school’s intake. A pupil’s key stage 2 results, achieved at the end of primary school, will be used to set a reasonable expectation of what they should achieve at GCSE, and schools will get credit when pupils outperform those expectations. A child who gets an A when they were expected to get a B, or a D when they were expected to get an E, will effectively score points for their school. That approach will ensure that all pupils matter, and matter equally. It will be fairer for schools and fairer for pupils.

Coasting schools will no longer be let off the hook. Equally, head teachers will no longer feel penalised when they have actually performed well with a challenging intake. We must not deter the best head teachers and teachers from working in challenging schools.

Pupils’ progress and attainment will be assessed in eight subjects: English and maths, three further EBacc subjects and three other high-value qualifications. That final group can include further traditional academic subjects such as art, music and drama, and vocational subjects such as engineering and business. English and maths will be double-weighted to reflect their importance. That will encourage schools to offer all pupils a broad curriculum, but with a strong academic core.

We will define the new floor standard as progress half a grade lower than reasonable expectations. So if pupils at a school are expected to average a B in their eight subjects, the school will be below the floor if they average less than four Bs and four Cs. At present, there are 195 schools below the existing floor standard. Using existing figures, we estimate that about twice as many schools would be below the new floor standard. However, as schools will adjust their curriculum offer to the new framework, the actual number is likely to be significantly lower.

We also want to recognise schools in which pupils make exceptional progress. Therefore, a school in which pupils average a full grade above reasonable expectations will not be inspected by Ofsted the following year. This is the first time the accountability regime has offered schools a carrot as well as a stick. Schools have planned their current curriculum for years 10 and 11 on the basis of the existing accountability system, so for that reason, the new system will begin in 2016 for students currently in year 9. We will, however, allow schools to opt into the new system from 2015 if they wish.

The Government response to the consultation also describes how we will publish information we hold about secondary schools through a new data portal. That builds on our existing performance tables, and will allow all interested groups—governors, parents, academics and civil society more widely—to analyse aspects of school performance. Our full response to the consultation is available on the Department for Education’s website, and a copy will be placed in the Library of the House.

Through these changes, we are removing the perverse incentives for schools to act in a way that is not in the best interests of their pupils. More pupils will get the teaching they require and obtain the valuable qualifications they need. The proposals will have a major and positive effect on our education system, and we hope they will secure support from across the political spectrum.

15:41

[Kevin Brennan (Cardiff West) (Lab)]

I thank the Minister for his kind words for the shadow Secretary of State and the former shadow Secretary of State, which he gave in his usual courteous way at the beginning of his statement. I also thank him for advance sight of the statement. Labour will study closely the details of the changes he proposes, and if it transpires that they will incentivise rich, broad and balanced curricula in our schools, we will welcome them. There are, however, some important tests that the changes must pass.

Anyone watching last week’s “Educating Yorkshire” will have seen the extraordinary efforts that teachers go to—sometimes including risking their health—to help pupils pass their GCSEs. It is sad that these days that is sometimes known in Government as “gaming the system”. How will the Minister ensure that the new arrangements will allow teachers to help pupils of all abilities to achieve their best, and can he be sure that they will not throw up their own new perverse incentives?

The Labour party, backed by the CBI, is committed to ensuring that all young people continue to study maths and English to 18, although so far the Government have failed to support Labour’s plan. Will the Minister think again about that? As the participation age rises to 18, and with challenges for us all in the OECD report, does he not want all young people to continue studying maths and English to 18? We also need more detail about how the changes will impact on technical and vocational education which, once again, seems to be a bit of an afterthought. He referred to progression post-16, but why are the Government watering down the important requirement on schools to ensure that young people are ready for the world of work, through the provision of work experience and independent careers advice and guidance?

The central problem with the announcement is that parents, pupils and teachers no longer trust the Government not to tinker. When it comes to accountability measures, the Government behave a little like the badgers, moving the goalposts halfway through the school year. Will the Minister guarantee that the proposal will not be subject to the mood swings of the Secretary of State and his infamous friend Dominic Cummings? Parents, pupils, teachers and head teachers are livid about the latest knee-jerk announcement via the press, when pupils are already preparing for exams and only days away from the deadline for exam entry, that only first entry into GCSE can be counted in the school accountability measure. If the badgers are moving the goalposts, Ministers are changing the rules in the middle of the match. Will the Minister promise to meet with heads to discuss their concerns about this change being implemented in such a way?

Will this change to the accountability system make any real difference to children if their schools are vulnerable to—I quote the Secretary of State’s special adviser— “disastrous teaching” and “fraudulent activity”? That is the view of Dominic Cummings, who says that it is inevitable, because of the lack of grip the Secretary of State has on his free schools policy, that some will fail for those reasons. That is what he said.

We are already seeing the fruit of that failure in the scandal at Al-Madinah school in Derby, which left 400 children without schooling for an entire week and whose approach to women staff and female students has caused such controversy. What will the right hon. Gentleman do to ensure that school accountability extends beyond today’s measure and includes ensuring that all taxpayer-funded schools have qualified teaching staff, are monitored for financial fraud, have proper child protection measures in place and are adhering to basic British values of tolerance and respect for all, regardless of gender, sexuality or religious belief?

[Mr Laws]

I think I welcome the shadow Minister’s response to our statement. By the end of it, it was difficult to know whether he was supporting the statement or not. We will come to that in a moment. I think I welcome the hon. Gentleman’s relatively cautious approach because, from him, I take that as a sign of support, whereas from other people it might qualify as anything other than that.

I hope the hon. Gentleman will accept that we have taken time to get this right. Nobody can accuse us of rushing into the proposals. After all, we announced a consultation in this area in February. We have taken a great deal of time to get our proposals right. We have listened very carefully, including to the Chairman of the Select Committee, to a lot of the mathematics, to organisations that made representations, and to hon. Members on both sides of the House. As a consequence, the Secretary of State and I have changed the proposals that we first made. We have moved away from a threshold measure to a greater extent than was originally planned, precisely because of the perverse incentive effects that the hon. Gentleman talked about, and we think we have now got the balance right between having a proper accountability system and ensuring that that system embeds the right incentives. By having a number of key measures, we will ensure that it is not possible to game one of those and ignore all the other things that matter.

The hon. Gentleman is right that we need to encourage young people who have not mastered maths and English at 16 to go on studying those subjects, and we have announced a new core maths qualification beyond the age of 16 to ensure that young people have the opportunity to do that. We have also, through our 16-to-19 accountability consultation, paid a great deal of attention to the incentives that educational institutions will have to keep young people on course after the age of 16 and to create the right incentives. The destination measure that I have talked about today will give all educational institutions an interest in the qualifications that young people secure not only at age 16, but beyond that.

On the issue of early entries for GCSEs, I do understand that this has been controversial, but the hon. Gentleman will understand that we must pay attention to the serious warnings that we have received from Ofsted and others about the scale of increase of early entry. This summer almost a quarter of maths entries—170,000 entries —were from young people who were not at the end of key stage 4 study. Ofsted said that it found no evidence that such approaches on their own served the best interests of students in the long term. Indeed, Sir Michael Wilshaw has said that he thinks early entry hurts the chances of some children, who are not able to go on to get the best grades that they are capable of.

On future uncertainty about these frameworks, we hope very much indeed that we will be able to secure support from across the House for the proposals that we have made today, and I take the hon. Gentleman’s comments as a modest step in that direction. However, in terms of getting certainty about the degree of cross-party co-operation, it would be helpful if he could clarify some of divisions that there are now on his own side about some of the key issues. For example, one of the measures that we have said we would publish is the EBacc, and we believe we should continue to do so. The former education spokesman for the Labour party opposed the EBacc and said that it was at best an irrelevance and in some cases distorted young people’s choices. The new spokesman for the Labour party said that he supports the English baccalaureate. We want to hear from the Opposition some clarity about Labour’s position on these issues; otherwise, that will be a source of confusion.

[Mr Graham Stuart (Beverley and Holderness) (Con)]

This announcement is extremely welcome, as the best eight measure will be an educational breakthrough in improving the accountability of secondary schools by, as the Minister rightly said, ensuring a focus on improving the education of the lowest-achieving, as well as stretching those at the top. It is to the credit of the Secretary of State and the Minister for Schools that they have listened to the submissions, that they have been prepared to take their time and that they have got this right. How will the floor target work? It is rightly based on progression, but how will it ensure that progression is fairly measured between those who serve the more able and typically prosperous parts of the population and those in the most deprived areas?

[Mr Laws]

I am grateful to the Chair of the Select Committee for his kind comments about the proposals we have announced today. I am happy to pay tribute to him for the role he has played in ensuring the improvement of the proposals between the original announcement and consultation in February and today, when the final proposals were made. He is right that the new progress measure will ensure that the attention and focus is not only, as it was in the past, on the schools with the lowest levels of attainment, but on schools that appear to have high levels of attainment but where levels of progress are extremely low. Schools have been able to coast over the past decade because their overall levels of attainment look all right, when they have actually been failing young people by not getting much better results from them.

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

This is probably the best statement I have heard from a Minister since 2010, when the Government were formed. It is not all perfect, but the Government have listened and have modified the proposals. They should be congratulated on that. If they listened to last week’s debate on adult literacy and numeracy, will they take the lesson that the one area in which we still underachieve is the failure of at least 25% of our young people coming through education to get almost any qualification at 16? That is where the concentration must be and we need action soon.

[Mr Laws]

I am grateful to the hon. Gentleman, the former Chair of the Select Committee, for his kind comments. He is absolutely right that one of the big challenges we must address in education is the very large number of young people who are not getting through GCSEs with decent qualifications in English and maths. Shockingly, at the moment the overwhelming majority of those young people continue to fail beyond the age of 16. Many do not even attempt to retake those subjects to get that basic level of literacy and numeracy, and we must address that.

[Mr Stewart Jackson (Peterborough) (Con)]

I warmly welcome the Minister’s statement. It is clear that the Government are absolutely committed to tackling underachievement among children from poorer backgrounds. Will he undertake not to lose sight of the importance of English as an additional language as a factor in educational attainment? Will he look at the subject in the round when going forward with these welcome education reforms?

[Mr Laws]

I agree with my hon. Friend and there will still, of course, be an incentive through the EBacc system to encourage modern languages. The funding system for schools will still make finance available to help schools with those challenges.

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

Many schools in and around Sheffield no longer offer three separate science subjects at GCSE, which is blocking young people from being able to go on to careers in engineering and other related subjects. Given the changes that have been announced, how does the Minister see things developing? In particular, will he support the development of separate sciences so that young people go into such areas, where we have skills shortages?

[Mr Laws]

The hon. Lady makes a good point. Sadly, over the past decade or so there was a movement by students away from taking serious single-science subjects towards broader subjects that sometimes had an unrealistic equivalence. I am pleased to say that since the changes made by my right hon. Friend the Secretary of State in that area, we have seen a big increase in students taking some of those subjects at GCSE and A-level. We need to ensure that the number goes up even further in the future.

[Sir Edward Leigh (Gainsborough) (Con)]

What discussions has the Minister had with the private sector? Is there not a danger that in moving to a progress measure we are moving from absolute standards to relative standards because we are taking account of where people come from as opposed to where they are? Parents want a measure of how good a school is now and the rigid academic standards it is achieving, and nothing else.

[Mr Laws]

We have had a broad welcome for the proposals in the consultation and the statement, including from many employer organisations, but my hon. Friend is right to highlight that, ultimately, results and attainment are crucial to any young person doing well in future. I believe that, through the best eight measure—an average we will publish as part of the new accountability framework —we will send out the clearest signal ever about how a school is performing in a large range of subjects and for every single student in the school. I believe that that will improve the focus on attainment in every school in the country.

[Mr David Lammy (Tottenham) (Lab)]

I congratulate the Minister on his announcement. I particularly welcome the destinations measure, which I argued for as a Minister —I was not successful in persuading the Department to do it. How will it affect schools that go up to age 16, as opposed to schools that go up to age 18, which often place a greater emphasis on universities, including Russell group universities?

[Mr Laws]

I am grateful to the right hon. Gentleman for his comments. We would expect such a measure to apply both to schools that go up to age 16 and to those that go up to age 18. Looking at what happens to people afterwards is relevant in giving both a powerful incentive. Clearly, the pathway in each situation would, for many students, be slightly different, but we believe that taking an interest in what students go on to do beyond age 16 makes sense in giving a powerful incentive to the many schools in the country that go up to age 16.

[Tim Farron (Westmorland and Lonsdale) (LD)]

I very much welcome the proposals on increasing the reward for schools that add attainment for all pupils, irrespective of their backgrounds, and the proposals on adding value and support for schools that seek to boost attainment for all pupils, and not just those on the key dividing lines between specific grade boundaries. I am also happy to hear the Minister’s reference to having more carrots than sticks. In that sense, could we offer more carrots than sticks to the teaching profession with reference to Ofsted? Few Ofsted inspectors are currently teachers. Could Ofsted become more supportive and developmental rather than, say, threatening and limiting?

[Mr Laws]

I am grateful to my hon. Friend for his comments. He is right that we need to guarantee confidence in the schools system about the job Ofsted does. I believe that, on the whole, it does an excellent job. He will be interested to know that, since the new chief inspector took over at Ofsted a couple of years ago, he has very significantly increased not only the number of former head teachers who work for it, but the number of existing senior school staff who act as Ofsted inspectors. I would be happy to write to my hon. Friend to update him on that information, because there has been a radical change in a short period.

[Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)]

I wish the Minister well in developing his destination measures, particularly on employment. If he wants to know how schools can prepare, I invite him to come to Birmingham to see how the Birmingham baccalaureate brings the world of work and schools together. That might give him a pathway to copy elsewhere.

[Mr Laws]

I would be delighted to come to Birmingham.

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

Following that same point, in warmly welcoming the Minister’s statement, I urge him to accelerate the inclusion of a destination measure as an assessment criterion. What really matters is how a school prepares its pupils to succeed either in further education or in finding a job.

[Mr Laws]

I agree with my hon. Friend that the destination measure is extremely important. I assure him that we will act swiftly to seek to introduce the measure. Getting the data to the standard at which they are accurate and useful, which is crucial because we want an accountability measure that is taken seriously by schools, is important as the first step. However, as soon as we do it, we will move towards publishing the measure.

[Toby Perkins (Chesterfield) (Lab)]

Brookfield school in Chesterfield recently wrote to all parents to let them know that year 11 pupils whom the school believes might not get a C will not do maths until May or June, whereas previously they would have done it in November. Alongside schools accountability, is the Minister concerned that one impact could be that children on the borderline might not have the same chance that children higher up have, because the children who are higher up have the chance to do it in November and do it again in May if they are not happy with their original result? Is there a danger that schools will change the way in which they operate to the disadvantage of some pupils?

[Mr Laws]

We were concerned by what was happening in increasing numbers in some schools before the announcement was made. I draw the hon. Gentleman’s attention back to the massive expansion in the last couple of years in the number of students doing multiple GSCE entries—170,000 in summer 2013. Almost a quarter of maths entries were multiple entries from students who had not reached the end of key stage 4. Several bodies have expressed concern that some of the youngsters might get a C when they could go on to get a B, an A or an A*, and they are potentially being let down. It also means that teaching in those subjects ends at a much earlier stage than it should, with a year only of preparation in the subject rather than the full two years. It is crucial that we have a school system that acts in the best interests of the students, not simply of the schools.

[Nick de Bois (Enfield North) (Con)]

Employers will tell the Minister that it did not need an OECD report to show that England has—shockingly—some of the least literate students, because they only have to look at job applications to see that. Will he ensure that his system will have widespread effect, especially on literacy and numeracy, as opposed to focusing on a few?

[Mr Laws]

I agree entirely with my hon. Friend. The new system will reduce the amount of gaming behaviour across the C/D borderline and the amount of teaching for the test, which often distorts our appreciation of educational standards, and all of the changes go hand in glove with the further changes to GCSEs that were announced by my right hon. Friend the Secretary of State earlier this year, which will try to ensure that GSCEs in English, maths and other subjects are fit for purpose and will ensure that young people in this country are as well prepared as those in other top education countries.

[Julie Hilling (Bolton West) (Lab)]

The Minister’s announcement on early entry—made to the media, it has to be said, not to the House—has created huge anger and great disruption to pupils and schools in my constituency. Did he talk to head teachers about why they do early entry, and will he commit to giving longer notice periods and to stop announcing changes that have immediate detrimental effects on pupils in the middle of their courses and exam preparation?

[Mr Laws]

I do not think we can be accused of leaping too rapidly to conclusions when we have just completed an eight-month consultation process on the changes that we are discussing today. It would be negligent of us to stand back and ignore the recommendations being made by Ofsted and others, and the dramatic figures that we have seen in the past year or so, which suggest that a vast amount of money is being sunk into exam fees rather than into teaching—behaviour that is not potentially in the best interests of some of the most disadvantaged youngsters. We have spoken to many head teachers and head teachers’ bodies about this. The timing has been controversial, but many head teachers have told us that there were problems and abuses in this area and that these changes are sensible,

[Guy Opperman (Hexham) (Con)]

The Minister visited Hexham schools this summer, for which I am grateful. He will know that they are outstanding and that they will welcome these accountability reforms, including the destination measures that he outlined. Could he give the House a little more explanation of how, through over-achievement, a school can avoid the next year’s Ofsted inspection?

[Mr Laws]

I am grateful to my hon. Friend for arranging the visit to his constituency some months ago. I very much enjoyed visiting a couple of schools in his part of the country. Those schools that achieve a particularly high level of progress—one grade more than expected—will have that exemption from Ofsted inspection, and that will send out a clear signal to those schools that we are rewarding the extraordinary progress that they are making.

[Kerry McCarthy (Bristol East) (Lab)]

I am sure the Minister is an avid reader of ConservativeHome, so he will have seen the blog post by the hon. Member for Kingswood (Chris Skidmore) in August in which he talked about

“a new social divide in subject choices.”

He said that pupils from state schools, in particular pupils on free school meals, often went for the softer options. Will the Minister confirm what I think he said in his statement: that arts and vocational subjects are considered high value, and that performance and attainment in those subjects will be rewarded?

[Mr Laws]

Yes, I certainly can. In the best eight measure there will be three spaces reserved for subjects that can include arts, music, and vocational and other subjects. One of the great benefits of today’s announcement is that there will not be the pressure on schools, which was there in the past, to focus only on five GCSE subjects. For many students that created far too narrow a curriculum at the age of 16.

[Alun Cairns (Vale of Glamorgan) (Con)]

I welcome the Minister’s statement, which will help parents to make an informed judgment when exercising choice for their children’s education. A great deal of emphasis has been placed on the progress from the outcomes of key stage 2 to expectations at key stage 3. What consideration has he given to consistency across different educational institutions?

[Mr Laws]

We want to see consistency right across educational institutions. The changes we have announced today will create much better consistency in accountability measures, and will not focus only on those institutions with lower attainment and lower prior achievement. This will be a fairer way of judging every single educational institution in the country.

[Bill Esterson (Sefton Central) (Lab)]

The issue of multiple exam entries—in particular in maths—has been raised with me by a number of constituents. In September, pupils were told that they would be entered for an exam in November. A few days later, as a result of the Government’s announcement, schools had to make the decision that that would not be right because of the impact it would have on league tables. Would it not be better to consider the impact on students—given the very high numbers involved, which the Minister has mentioned a couple of times—rather than timing the announcement for party conference season?

[Mr Laws]

This announcement was not timed for the party conference season; it was timed on the basis of the evidence available to us. If schools believe that young people should be entered in November, they are perfectly at liberty to do that—we have done nothing to stop them. Indeed, if they are confident that students will be able to secure their best grades at that time, they should put the students in for the exam. If, however, the students will achieve only a C grade when they could have achieved a B or an A later, schools should think twice.

[Graham Evans (Weaver Vale) (Con)]

I warmly welcome the Minister’s statement. As the father of three children in a state school, I have always been frustrated by the smoke and mirrors used by some state schools. Does the Minister agree with exposing coasting schools, rather than rewarding them like the previous Labour Government did?

[Mr Laws]

This information will expose coasting schools. It will also expose any school that has been focusing its curriculum offer in a narrow way and not delivering the breadth that young people need. The data based on the new accountability measures will shine an interesting light both on schools that are perhaps not as good as they thought they were, and on schools that looked like they were at the bottom of the table but are actually achieving good results given the prior attainment of their students.

[Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

The Public Accounts Committee has been calling for greater financial accountability of schools and it is not clear from the Minister’s statement whether the new data portal will include that, or how open the data will be. Will he come to Shoreditch and allow some of our tech businesses to work with him and the Department on that data so that we have a telephone app that tells parents about the quality of the schools they are choosing?

[Mr Laws]

I am happy to pursue the issue further with the hon. Lady. I have already promised a visit to Birmingham, so I am not at this stage ready to promise a visit to Shoreditch. I would, however, certainly like to engage with her on this topic. [Interruption.]

[Mr Speaker]

I am grateful for the sedentary chuntering. It has to be said that the place the hon. Lady has in mind is nowhere near Birmingham, but I am sure that the Minister, who is a man of prodigious brainpower, will be fully conscious of that fact.

[Sir Bob Russell (Colchester) (LD)]

As a former pupil of St Helena secondary modern school for boys, I thank the Minister for taking the first step in 50 years to address the educational imbalance between academic and non-academic subjects. The Minister mentioned vocational subjects, one of which was engineering, but he was silent on building trade skills and motor mechanic skills. Will he give an assurance that they will form part of the vocational subjects, and with the holistic approach of “schools for life”, does he agree that first aid should be part of the curriculum?

[Mr Laws]

I welcome my hon. Friend’s welcome for these announcements, but I fear that on the issue of first aid, I will be unable to give him a different answer from the one given on previous occasions by the Secretary of State. On my hon. Friend’s wider point, it is important for all serious, high-value vocational qualifications to be accessible through this route. He will know that we have taken a close look at the whole suite of vocational qualifications to make sure that there are serious equivalents because of some of the problems that arose under the last Government. If he is concerned about particular qualifications, he should write to me and I will respond in detail.

[Chris Skidmore (Kingswood) (Con)]

I am honoured to be mentioned by my constituency neighbour, the hon. Member for Bristol East (Kerry McCarthy). I absolutely welcome the progress measure, but on its detail, will the key stage floor target be taken at the end of year 6 or the beginning of year 7, given the overwhelming evidence and research showing that achievement at key stage 2 drops over the summer before they arrive at secondary school?

[Mr Laws]

My hon. Friend raises a very good point. We will use the end of key stage 2 data. As an expert on these matters, he may want to probe annexe B of our consultation response, which sets out in some detail how this aspect will work. We will also make sure that proper credibility pertains to all the key stage 2 data. Because it will be used to measure secondary schools’ achievement, it is even more important than it is now for this data to be fully credible and properly stress-tested.

[Jackie Doyle-Price (Thurrock) (Con)]

Does my right hon. Friend agree that, at a time of declining social mobility, it is important to tackle coasting schools to make sure that they do not fail the brightest pupils from the most modest backgrounds and that all schools have a responsibility to have a programme for talented children, which should not be just an optional extra?

[Mr Laws]

I entirely agree with my hon. Friend. One of the deficiencies of the existing accountability regime is that it is too easy for schools in comfortable catchment areas to coast and to fail to deliver for many of their pupils. They are not in the spotlight at present; they will be in the future.

[Damian Hinds (East Hampshire) (Con)]

Of all this Government’s school reforms, is this perhaps the most significant in terms of its breadth of impact right across education, ensuring that teachers’ efforts on behalf of all pupils are fully recognised? Does the Minister anticipate a warm welcome from teachers, who will be able to do what they entered this noble profession to do: to deliver a broad education free from the artificial constraints of the C/D borderline?

[Mr Laws]

I agree with my hon. Friend. I believe that today’s announcement has so far been warmly welcomed by teachers’ organisations and others. It will allow a good measure of accountability—an intelligent accountability that drives the right results and the right behaviours at all schools.

[Christopher Pincher (Tamworth) (Con)]

I welcome the statement. Pursuant to the point about key stage 2 raised by my hon. Friend the Member for Kingswood (Chris Skidmore), may we use this opportunity to encourage greater integration between secondary and primary schools? All too many students go to secondary school at the age of 11 with a reading age of 7, and many of them are condemned to fail at GCSE the moment they walk through the door of their secondary school. We need to see greater linkage between secondaries and primaries, so that those secondaries are able to identify potential challenges in their future cohorts as early as possible.

[Mr Laws]

I agree with my hon. Friend, who makes an extremely important point. He will know that as part of our proposals on primary accountability, we are significantly increasing the bar for what success looks like at the end of primary school. We are doing that because pupils at the end of primary school who achieve only the level of attainment set as a measure of achievement by the previous Government overwhelmingly go on to fail even the existing five good GCSE measure. We cannot possibly allow a level of success at the end of primary school that prepares students for failure rather than success in secondary school.

[Richard Fuller (Bedford) (Con)]

Effective implementation is likely to require accountability to run both ways. Head teachers who are inspired by this and other measures to tackle educational underachievement have the right to know that the Department for Education, the Education Funding Agency and Ofsted are there to help them, and that their interactions with those agencies will be courteous, open and effective. Will the Minister do his part, in respect of accountability, to ensure that those agencies support the head teachers who are in the front line when it comes to making these changes happen?

[Mr Laws]

I will certainly do that. Head teachers want to feel that they are supported by all parts of the education system, including our Department, and they want an accountability system which they see as fair and which drives the right incentives. I believe that what I have announced today will give them that.

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

I welcome the statement, and particularly the fact that English and maths will be given double weighting in the new table. I am sure that that will lead to a greater quality, if not quantity, of teaching. Will my right hon. Friend consider publishing draft data so that parents can have the necessary information before attending open evenings and choosing secondary schools for their offspring?

[Mr Laws]

My hon. Friend is right to draw attention to the double weighting of English and maths, which we think sends a clear signal about the crucial role of those subjects. We will do what we can through the data portal to give parents as much information as possible about the issues, as soon as possible. We will also ensure that the key measures are published on the website of every single school so that parents can see what they often cannot see at present, namely a consistent comparison of the key performance indicators of all schools.

[Mr Philip Hollobone (Kettering) (Con)]

Any system of school or pupil assessment which results in all pupils’ being pushed to do the very best that they can must be a good thing, but can the Minister explain to parents in Kettering—without using any departmental jargon—at what stage children’s predicted GCSE results will be established, and how that measure of progress, whether it be one grade above or one grade below, will be assessed and audited?

[Mr Laws]

Yes, I can. I refer the hon. Gentleman to annexe B, which we published today and which will provide him with a fair amount of detail about how we will calculate the measure. I hope that that reassures him, but I shall be happy to meet him if he wants to discuss the matter further.

[Mr David Burrowes (Enfield, Southgate) (Con)]

My constituents cannot wait for the Secretary of State’s forthcoming visit to see the good progress that schools have made on GCSE results—particularly St Anne’s school, where there has been a remarkable 28% improvement. I especially welcome the new progress measures that the Minister has announced, and I commend his statement for its fairness. Broomfield school, which is just down the road from St Anne’s and of which I am a governor, has come out of special measures and is making good progress, but in terms of GCSE results it has to deal with a very challenging intake, not least the pupils who leave key stage 2 lacking basic numeracy and literacy skills.

[Mr Laws]

I entirely agree with my hon. Friend. I am delighted to hear that, as ever, a warm welcome awaits the Secretary of State, at that school and indeed all others in the country.

[David Rutley (Macclesfield) (Con)]

I, too, welcome the statement. I am particularly pleased to be able to add my welcome and support to those of many employment organisations. I especially welcome the focus on destination measures: true outcomes of educational attainment. Can the Minister shed more light on that? Will the destinations include apprenticeships and higher apprenticeships, and are there lessons to be learnt from other countries for the purpose of this important measure?

[Mr Laws]

Obviously we will be considering educational destinations, apprenticeships, and employment destinations with training. We need to ensure that we can collect all the information properly so that when schools receive it on their websites they recognise it, regard it as fair, and regard the Government as having captured accurately data which currently we do not possess in a single place, but believe that we can bring together.

[Robert Halfon (Harlow) (Con)]

Is my right hon. Friend aware that under the leadership of Helena Mills, Burnt Mill academy in Harlow has this year achieved 76% A to C grades in maths and English at GCSE, compared with a figure of just 27% a few years ago, by carrying out many of the measures that he set out and having a relentless focus on maths and English? Will he look at such schools to see examples of good practice and how the new accountability system works?

[Mr Laws]

I am delighted to hear from my hon. Friend about the success of his local school. We are always looking at what we can learn from examples of schools that do so fantastically well, and we hope that the new accountability regime will be welcomed by his local school.

Points of Order

Monday 14th October 2013 Commons Chamber

16:19

[Mr Andrew Smith (Oxford East) (Lab)]

On a point of order, Mr Speaker. On behalf of my constituent Mr Peter Hitchens, I wish to raise concern about the remark made about him in this House in the Syria debate on 29 August by the hon. Member for Braintree (Mr Newmark), who said, in reference to an article by Mr Hitchens:

“Peter Hitchens wrote recently, in support of the Assad regime, that the Syrian Government were not lying and that it made ‘more sense’ for the opposition to poison and kill more than 1,000 of their own people.”—[Official Report, 29 August 2013; Vol. 566, c. 1503.]

Mr Hitchens has raised this matter with your office and directly with the hon. Member for Braintree, as have I, but it remains unresolved. Mr Hitchens does not support the Assad regime, and it is clear from his articles that he does not. He is concerned that this allegation currently rests on the Hansard record without challenge or correction. I am sure that you would agree, Mr Speaker, that it is important, in debate, that we argue on the basis of what those who disagree with us actually say, rather than what we might choose to attribute to them. I hope through this point of order to have corrected the record on behalf of my constituent.

[Mr Speaker]

I am grateful to the right hon. Gentleman for his point of order and for his courtesy in giving me advance notice of his intention to raise it, as well as for sharing his intentions by letter and e-mail with the hon. Member for Braintree (Mr Newmark). For my own part, speaking from the Chair, I would not seek for one moment to interpose myself in a dispute or altercation between the hon. Member for Braintree and Mr Peter Hitchens. I think that the point stands as the right hon. Gentleman has made it, and I would just like to say that the hon. Member for Braintree said what he judged and judges to be right. He was perfectly entitled to do so, and I make no criticism of him. Mr Peter Hitchens is well known to me. I have been acquainted with him for a great many years and disagreed with him for almost all of those years on almost all matters under the sun, but it is a matter of almost uncontested fact that Mr Hitchens is a man of both provocative talent and unimpeachable integrity. We will leave the matter there.

[Steve Rotheram (Liverpool, Walton) (Lab)]

On a point of order, Mr Speaker. I wonder whether you will indulge me with the benefit of your extensive expertise in all things procedural in this Chamber. I was pulled out of the shuffle for questions to the Deputy Prime Minister tomorrow but have subsequently been notified by the Cabinet Office that the DPM is refusing to answer my question on constitutional reform. Can you offer me guidance as to how I may challenge that decision, so that the Deputy Prime Minister is held accountable by Members of this House?

[Mr Speaker]

I am grateful to the hon. Gentleman for his point of order and for giving notice of his intention to raise it with me. I simply say to him that it has always been for the Government to decide which Minister is responsible for answering questions. I understand the hon. Gentleman’s frustration, but as far as I can see from the material available to me nothing disorderly has occurred. It is often the case that a question put to one Minister can be judged, perfectly reasonably, to be more within the purview of another. If such a judgment has been made, it is not for the Chair to quibble with it. I do not seek to engage the hon. Gentleman further at this time, so he should not spring to his feet and recite to me the question he had posed. I think it is fair to record that in his otherwise unexceptionable letter to me on the matter dated today he does not say what the question was. I have at this stage to conclude that the transfer, though from his vantage point frustrating, was, as I say, not disorderly. But he is nothing if not a perspicacious terrier, and I feel sure that he will use all his intellectual and political resources to test the Deputy Prime Minister in another way on a different occasion. We will leave it there, and I hope that the hon. Gentleman is satisfied.

[Kevin Brennan (Cardiff West) (Lab)]

rose—

[Chris Bryant (Rhondda) (Lab)]

rose—

[Mr Speaker]

I like saving up the hon. Member for Rhondda (Chris Bryant) until last, so we will take a point of order from Mr Kevin Brennan.

[Kevin Brennan]

On a point of order, Mr. Speaker. I apologise for not being able to give you notice of this. The highly acclaimed Ensemble Al-Kindi from Syria was due to appear next week in Cardiff at the world music exhibition but have been denied visas, despite the fact that the following week they will be performing in Helsinki at the Savoy theatre and have visas for the Schengen area from France. Is there any means by which I could draw this case to the attention of Ministers for their urgent consideration today so that they can look at it with a view to reviewing it?

[Mr Speaker]

I think that the hon. Gentleman knows that he has found his own salvation. He has just drawn it to the attention of those on the Government’s Front Bench. The Government Chief Whip, the Patronage Secretary, is in his place, as are other distinguished and senior Ministers. I cannot say that I am familiar with the ensemble concerned, and I have no responsibility, of course, for migration or visa policy. I can say only that if the ensemble is anything like as good as the hon. Gentleman when he is playing in MP4, the people of Cardiff will be sorely deprived by the absence of the said ensemble. We will leave it there for now.

[Dr Julian Lewis (New Forest East) (Con)]

On a point of order, Mr. Speaker. Sadly, this is one of my points of order that will not find its own salvation. You will be aware that it is very unusual for the head of the Security Service, MI5, to make a public statement about a leak of information, and in this case he has said that it has done extreme damage to the security of this country. Given that the Secretary of State for Business, Innovation and Skills has made a pronouncement that The Guardian has acted in the public interest in its role in leaking this information, have you had notice of any intention to have a statement from a Cabinet Minister on whether the concept of collective Cabinet responsibility still applies?

[Mr Speaker]

I have received no indication that any Minister intends to come to the Dispatch Box to opine on that matter. Whether knowledge that the hon. Gentleman is keen for one or other of them to do so would act as an incentive or a disincentive to do so, I leave the House to speculate. We will leave it there for now. I hope that the appetite of the House is now about to be satisfied by the hon. Member for Rhondda.

[Chris Bryant]

On a point of order, Mr Speaker. I am afraid that I need salvation from you, because on 24 May I tabled two questions to the Minister for Immigration at the Home Office, numbers 157647 and 157648. They were named day questions, which were meant to be replied to on 5 June. They were actually replied to on 8 October. That is not the worst of it. I tabled another named day question on 16 May to the same Minister, which was meant to have been replied to on 21 May, and it has still not been replied to. The Minister sends flummoxing answers.

May I make some suggestions on how we might deal with the Home Office that you might be able to take up? First, we could print every reply that is late in red on the Order Paper, so that we all know quite how often the Home Office is late. Or we could introduce a late answer penalty of £100, taken off a Minister’s salary, for every question that is answered late; I do not think that the Home Secretary would be receiving any salary at all this year. Or you could give them all a dressing-down.

[Mr Speaker]

I am grateful to the hon. Gentleman, who not only raises a problem but proffers a solution, which it is extraordinarily generous of him to do all in one go. My own response is rather prosaic I am afraid. In the immediate term, I suggest to the hon. Gentleman—and I mean it very seriously—that he takes the matter up directly with the hon. Member for Broxbourne (Mr Walker), the Chair of the Procedure Committee. [Interruption.] He says that he has already done that. I should have thought that the Procedure Committee would be dissatisfied. [Interruption.] The hon. Gentleman chunters from a sedentary position that he has written to me, and I am advised thus by my secretary, but I have not yet seen the letter. When I have done and a reply is penned, it will wing its way to the hon. Gentleman.

All of those proposals will be reflected upon, but on a serious note, I do say to Ministers that it is deeply unsatisfactory, and should be a source of some shame to Ministers, including those who have overall responsibility for conduct, when delays of this kind take place. Quite apart from considerations of efficiency, it is simply rude. I know that it is not something that the Chief Whip would ever want because he is among the most courteous people in the House, but it really should be gone. I say in fairness that when the Government Chief Whip was Leader of the House he was always most solicitous in pursuing these matters with Ministers, and I feel sure that the Leader of the House, who is temporarily unavailable to us for a very short period, will, when he returns, get on to the matter without delay. I know that if that does not happen, the hon. Gentleman will be on to me again, so we must find a solution.

Bill Presented

National Insurance Contributions Bill

Presentation and First Reading (Standing Order No. 57)

Mr Chancellor of the Exchequer, supported by the Prime Minister, the Deputy Prime Minister, Secretary Vince Cable, Mr Secretary Duncan Smith, Danny Alexander, Mr Sajid Javid, Mr David Gauke and Nicky Morgan, presented a Bill to make provision in relation to national insurance contributions; and for connected purposes.

Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 112) with explanatory notes (Bill 112-EN).

Anti-Social Behaviour, Crime and Policing Bill (Ways and Means) (No. 2)

Resolved,

That, for the purposes of any Act resulting from the Anti-Social Behaviour, Crime and Policing Bill, it is expedient to authorise the charging of fees which–

(a) relate to applications under Part 5 of the Police Act 1997, and

(b) are of an amount determined in a way that takes into account the costs associated with such applications in cases where no fee is payable.—(Damian Green.)

Anti-Social Behaviour, Crime and Policing Bill (Programme) (No. 2)

Monday 14th October 2013 Commons Chamber

16:30

[The Minister for Policing and Criminal Justice (Damian Green)]

I beg to move,

That the following provisions shall apply to the Anti-Social Behaviour, Crime and Policing Bill, in place of paragraphs (4) and (5) of the Order of 10 June 2013:

(1) Proceedings on Consideration and proceedings on Third Reading shall be taken in two days in accordance with the following provisions of this Order.

(2) Proceedings on Consideration–

(a) shall be taken on the days and in the order shown in the Table

(b) shall (so far as not previously concluded) be brought to a conclusion at the times shown.

[Dr Julian Huppert (Cambridge) (LD)]

I am glad that we have more time available for debate, but does the Minister share my concern that the debate on schedule 7 to the 2000 Act, which we are supposed to have tomorrow, along with many other matters, from the Opposition’s proposals to ban synthetic caffeine through to much else, have at most a two-hour slot until 2.30 pm? Is there any way we could save time on the Deep Sea Mining Bill and have more time to discuss those matters?

[Damian Green]

I do not agree with my hon. Friend that there is an unfair allocation of time, either between this Bill and others, as he mentioned, or within the provisions of the Bill. I think that we have achieved a fair allocation of time among the many important issues the Bill addresses. That should allow the House sufficient opportunity to consider both the Government amendments and others that have been tabled. As I have said, underlying the programme motion is the fact that we have extended the time the House has to consider the Bill on Report from one day to two days. I hope that the House will agree to the motion quickly so that we can get on to debating the many substantive issues before us.

16:34

[Jack Dromey (Birmingham, Erdington) (Lab)]

I thank the Minister for his kind comments and pay tribute to my predecessor, my right hon. Friend the Member for Delyn (Mr Hanson), in whose giant footsteps I am privileged to walk. He has been an outstanding Minister and shadow Minister, a great champion of the police service and one of the finest Members this House has seen in many years.

I rise to urge the House to reject the programme motion. I do so not because programme motions are inappropriate in general—far from it—but because in this case the programme motion is being used to curtail debate and because the Government are running scared after having lost a number of votes in Committee, and a Whip and a Minister, during the deliberations on this Bill.

As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) pointed out on Second Reading, while there are measures in this Bill that we support—crucially, the new child protection measures—it is a Christmas-tree Bill with a bit on a number of measures. There is a bit on police standards, a bit on guns and a bit on dogs, but in none of those areas does the Bill go far enough, and it is weak on tackling antisocial behaviour. It weakens antisocial behaviour powers at a time when the Office for National Statistics shows there is concern among the public that antisocial behaviour is increasing, with eight in 10 telling the ONS it has increased in their direct experience over the past year.

[Mr Tom Clarke (Coatbridge, Chryston and Bellshill) (Lab)]

Is my hon. Friend aware that there is a great deal of support for the point of view he is expressing, not least from my constituency on the issue of protecting children from sexual exploitation? Will he therefore feel very confident in promoting the case he is now putting?

[Jack Dromey]

This issue will be addressed shortly, and there is widespread consensus across the House on the importance of strengthening powers to protect children.

It is with this in mind that we express our concern about the programme motion, which will curtail debate on important measures, such as our proposals on dangerous dogs and measures on protection for public-facing workers, undercover policing and guns and also issues put forward by Members on the Government Benches, like extradition.

There are 89 pages of amendments and new clauses, many of which have been tabled by the Government at the last minute as, sadly, has often become the case with this Government. As a direct result, there will be little time to debate many of these important issues that we and Members on the Government Benches have put forward. For absolute clarity, I should state that the Opposition were asked whether we would support an extension of time for debate today and tomorrow, only for the Government then to cut the time for debate tomorrow. What is most worrying is the sense that the Government are using the programme motion because they are running scared of losing a vote on dangerous dogs, not least because many of their Members will be partying at a social occasion elsewhere.

Earlier today I met Michael Anderson, a fine man whose 14-year-old daughter Jade was killed by four dangerous dogs. He came to this House hoping that we would properly debate taking tough action so that, as he said, no father would ever again suffer what he has suffered. This Bill offered the Government the perfect opportunity finally to bring forward the kind of tough legislation necessary to deal with dangerous dogs and irresponsible owners, but, despite support for action from MPs on both sides of the House, they failed to act.

[Bill Esterson (Sefton Central) (Lab)]

My hon. Friend highlights a very sad and tragic case extremely well to make his point. The point my constituents have made to me about both dangerous dogs and gun crime is that they are incredibly difficult subjects that need to be examined in great detail in order to get changes in the law right. Anything rushed or done without proper consideration runs the risk of not making things better, and possibly making them worse.

[Jack Dromey]

My hon. Friend makes a very good point. This is not just about the tough action that is necessary but about getting the right kind of action, and that can be ensured only by way of proper debate in this House.

The Government gave a commitment in Committee that they would review the maximum penalties for an aggravated offence under the Dangerous Dogs Act 1991, but last week they waited until a few minutes after the deadline for tabling new amendments to the Bill, then let the House know that they would bring forward proposals on Report despite previous assurances to the contrary. Having failed to act, the Government now propose to fix the timetable so that our proposals for robust action in the form of dog control notices, which have worked so effectively in Scotland, will not receive proper debate, and to ensure that they do not lose the vote—a decision condemned by Michael Anderson.

It may be that I am naturally suspicious, but in the Government’s conduct over dangerous dogs, I smell a rat. First, we had the removal of the Minister who promised that the Government would review action on dangerous dogs and bring back proposals on Report, and then the new Minister, the hon. Member for Lewes (Norman Baker), last week waited until after the deadline for tabling amendments to inform the House that the Government will be doing no such thing. Now the Government want to fix the timetable to avoid debate and losing a vote. The Minister knows a thing or two about conspiracy theories, but I am sure he did not expect to be involved in one quite so quickly. Despite his being responsible for dogs and ASBOs, the Government do not even list him as a speaker in the debate. It would appear that he has been silenced less than a week into his tenure of office. I would urge him to investigate.

I urge the House to reject the programme motion and encourage the Government to allocate more time for debate. Any Government’s first duty to their citizens is to ensure their safety and security. Our citizens would expect nothing less than these very important measures, but the motion fails to ensure that they are properly debated in this House.

16:42

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the hon. Member for Birmingham, Erdington (Jack Dromey) on his new role and on his powerful speech, which came across very well and covered issues that he clearly cares about. However, I do not agree with his factual interpretation. If we do not pass this programme motion, we will be left with the programme motion that we passed unanimously in this House previously, which means that we will have only the rest of today for debate. I am afraid that the outcome of his suggestion is that we would have only five and a quarter hours to continue the debate, and I hope that we will not take up too much of it with this discussion. I understand the reason for his proposal, but unfortunately it suffers from the fact that it would curtail debate. He made an important point about having time to discuss dogs, and I am pleased to see that two hours are protected for that purpose. If we voted against this motion, we would risk having no debate on that issue at all.

My concern about the programme motion relates to the section covering the period until 2.30 pm on the second day, which deals with a whole collection of new clauses and new schedules on matters other than dogs, with a maximum of two hours available for debate. They include forced marriage in Scotland, on which I will not claim to be an expert, court fees and compensation, and a collection of policing and offences issues, including several that I would like to raise about schedule 7 to the Terrorism Act 2000, which needs to be curtailed. There are a range of other issues about drugs policy and a section on extradition. For all that, we have available a maximum of two hours, which would be limited even further in the event of any statements or urgent questions. I can accept voting for this motion because I have not tabled an amendment, and nor has anybody else, that would protect that time. However, in the event of there being statements or other things that delayed progress, will the Minister make sure that we have time to debate these very important subjects? Will he at least discuss with his colleagues whether there could be an amendment to the programme motion tomorrow to ensure that that crucial time, which many of us care about, is protected?

16:44

[Mr Kevan Jones (North Durham) (Lab)]

First, I congratulate my hon. Friend the Member for Birmingham, Erdington (Jack Dromey) on, and welcome him to, his new Front-Bench position. He has said that he has nothing in principle against programme motions, but had he been in the House before the last election he would have had to sit through the long debates in which Members who now sit on the Government Front Bench used to argue that programme motions were an evil of our age. They have not taken long to embrace programme motions or to use them as a way of curtailing debate.

It is universally acknowledged that the Queen’s Speech was not jam-packed with proposed legislation, to the extent that we now routinely have Back-Bench business debates and Opposition days. This Government are reluctant to ensure that this House properly scrutinises Bills. If that is to happen, time has to be provided for it.

A number of Bills have been rushed through this place with undue haste this Session, only to then be filleted in the other place, where more time is given for scrutiny. Sometimes that has been down to bad draftsmanship, and this Bill is a good example of that. My hon. Friend has already referred to the 89 pages of amendments and new clauses that have been tabled, which smacks to me of there being something wrong with the drafting of the Bill.

My hon. Friend said that this is a Christmas tree Bill, but I would say that it is a dog’s breakfast—a dangerous dog’s breakfast—of a Bill. If we look back at previous attempts to legislate on the serious issue of dangerous dogs, we will see that getting it wrong can cost lives, so it is very important that we get it right this time. That can only be done through proper scrutiny by the House.

[Mr Mike Hancock (Portsmouth South) (Ind)]

In the absence of any amendment to the programme motion, what could the House possibly gain from voting against it? If we did so we would, in effect, lose a whole day.

[Mr Jones]

I welcome the hon. Gentleman, whose presence in the House has been limited because of illness, to his place. The fact is that there is a general trend under this Government to limit the time to consider all Bills, not just this one.

The Bill raises serious issues and has a wide scope, as the hon. Member for Cambridge (Dr Huppert) has said. It covers everything from the important issue of dangerous dogs to forced marriage and major issues of police reform, including a provision allowing foreigners to become police chiefs. Also—I know this is an issue of huge concern to some Government Members—it relates to the Terrorism Act 2000 and extradition. If we are to have a serious debate about such issues and ensure public confidence in us, we need more time than that allotted by the programme motion.

The Minister has said that the programme motion is generous because it gives us an extra day, but that is not the case, unless the Minister’s day usually finishes at 5.30 pm on a Tuesday. Why can we not extend the time available for consideration until the usual time of 7 pm, which would at least give us nearly two extra hours? I understand that Government Members are keen to attend to certain social engagements. I was surprised to read in the press at the weekend that the Opposition had agreed to the programme motion when they clearly had not. It has been a trend of this Government to believe that if they say something, it must be true, and if they keep saying something, it most definitely is true.

This House must do a proper job of scrutinising this large piece of legislation, which contains some crucial issues that will affect our constituents directly. The allocated time is not sufficient to ensure that we do that.

16:50

[Mr Dominic Raab (Esher and Walton) (Con)]

I want briefly to put on the record my concern that the programme motion does not allow for proper debate and scrutiny of the Executive, in particular in relation to the extradition clauses and amendments.

I appreciate that there are limitations on the number of Back-Bench amendments that can be considered during the Report stage of any Bill. However, yet again, substantive clauses on extradition reform that were tabled in Committee risk not being properly scrutinised by the House. The extradition proposals make up the last of four clusters of amendments to be debated tomorrow between 2.30 and 4.30 pm, so the chances are that we will have no time to debate them.

This is not the first time that that has happened. The Government’s new forum test for US and EU extradition was tabled during the Committee stage of the Crime and Courts Bill earlier this year. The House was again timed out of any consideration on Report back in March.

The broader context is that the Prime Minister and the Deputy Prime Minister have loudly promised extradition reform. It is in the coalition programme, no less. The legislative proposals follow an independent inquiry by Sir Scott Baker, which was conducted at great public expense. It is surely vital that we properly consider the case for reform and deliver on the promises that have been made.

Unbelievably, the Government’s forum clause, which was slipped into the Crime and Courts Bill and which becomes law today, is worse than the status quo. It makes the repetition of unjust cases, such as those of Gary McKinnon and Richard O’Dwyer, more likely, not less. We have had no chance to debate the substance of those proposals on the Floor of the House. They have had precious little critical, substantive scrutiny.

The proposed safeguards for the European arrest warrant in this Bill are more positive, but they are still too weak. Again, they were introduced in Committee and the whole House should have an opportunity to consider amendments to strengthen them, not least because they will form the basis of the Government’s case for opting back into the European arrest warrant later this year. The programme motion makes it highly likely that we will be timed out again. I fear that that will weaken the Government’s case for opting back into the European arrest warrant, when I believe the intention was to strengthen the case.

It may be a clever device to avoid proper scrutiny, but it comes at a price to our democracy. First, it means that Parliament is not properly scrutinising the powers that the Executive wield over innocent British citizens. Secondly, the lack of scrutiny leaves empty and undelivered the heady political promises that have been made about extradition reform by politicians across this House. I urge the Government to think again and to guarantee enough time for even a short, modest debate about these important clauses.

16:54

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

The Minister will know that the city of Nottingham has a very good record of tackling antisocial behaviour, built on the alliance between the police, police community support officers and community protection officers. He will know that because I have written to him on several occasions about the issue.

Does the Minister think that we will have sufficient time to discuss the police’s powers of direction, which the city of Nottingham would like to extend in part to PCSOs and CPOs? Not every city is prepared to take on those powers, but the cities that are would find them of great benefit in the continuing battle against antisocial behaviour, which is taking place in Nottingham and beyond.

16:54

[Nick de Bois (Enfield North) (Con)]

I am grateful to my hon. Friend the Member for Esher and Walton (Mr Raab), who covered some of my points about why I will find it difficult to support the programme motion. I wish to speak specifically to the time allocated for debating the European arrest warrant, which is of considerable interest to my constituent Andrew Symeou, by whom my view is informed and who has been a victim of a failed and flawed process.

The significance of the issue means that we require more time to debate it. Although the House has had many debates on the subject of the European arrest warrant and extradition, at no point has it had the chance to debate the extensive Scott Baker report that the Home Secretary commissioned, yet we are expected to have an informed opinion on detailed new clauses that are effectively the Government’s response to that report and that set out our future extradition policy.

The lack of time means that we will have no chance to examine how effective the reforms are, including those in the new clauses. My hon. Friend has tabled a significant number of amendments and new clauses that I believe would strengthen the European arrest warrant and protect the rights of the British citizen, while still broadly supporting the principle of opting back into it. Those amendments have drawn cross-party support, so it is regrettable that we will probably not have the chance to address them because of the order in which the groups of amendments will be taken tomorrow. Whatever the reason behind that order, we need to discuss the issues of temporary extradition, which sounds good but could be strengthened to protect our constituents; of proportionality; and of whether we should discuss the use of extradition as a last resort, not the first resort. Its use as the first resort has plagued the lives of many citizens of this country who have been wrongfully extradited.

My constituent Andrew Symeou spent two years out of the country as part of a four-year period of great disruption to his and his family’s life, including one year in jail. He was then rightly returned to this country when the Greek authorities finally threw out his case after four years. I made him a promise that during my time in the House, I would fight to ensure that others did not go through what he did. We had the opportunity to take that fight to the Floor of the House and discuss in detail how to make the situation better. Unfortunately, through the programme motion, the House has denied him the right to have it discussed and denied me the right to be his voice. That is a matter of regret and will make it difficult for me to form a positive judgment about opting back into the European arrest warrant, since the House has been denied the opportunity to challenge, probe and, hopefully, improve it.

16:57

[Julie Hilling (Bolton West) (Lab)]

I will not detain the House long, particularly while we are discussing the lack of time to debate the Bill, but I wanted to add my concern about the Government’s decision to curtail debate tomorrow. I fail to see what could be more important than debating issues of life and death.

My constituent Royston Brett set off on Friday and has cycled almost 250 miles from Atherton to Westminster to add his voice to those demanding more action to prevent dog attacks. He was supported on his journey by Michael Anderson, the father of Jade Lomas Anderson, who was tragically killed by four out-of-control dogs in March. When Michael and Royston cycled into New Palace Yard at 1 o’clock today, they were extremely upset to learn that the Government were curtailing the debate. They do not understand how they can spend three days making such a heroic effort to raise the issue of dangerous dogs, cycling in atrocious weather and sleeping in the car, but MPs cannot be bothered to work through until the normal hour tomorrow.

The Government should rethink their strategy for the Bill and ensure that we have adequate time to discuss the 211 or so amendments. Jade and many thousands of other victims of dog attacks deserve nothing less.

[Damian Green]

rose—

[Mr Speaker]

Order. I do not think that it is required for the Minister to respond, but if he wishes to say some further words, he can.

16:58

[Damian Green]

With the leave of the House, I will, Mr Speaker.

I detect just the faintest whiff of synthetic indignation in the air. I remind the hon. Member for Birmingham, Erdington (Jack Dromey) that the Opposition did not vote against Second Reading, or against the original programme motion, which provided for just one day on Report. They are objecting to having two days allowed for the Bill, but they did not object to having one day. Proceedings in Committee finished ahead of schedule, and on Report the Opposition Front Benchers have tabled just one amendment to the Bill’s 142 clauses, as well as five new clauses.

In opposing this second programme motion, the official Opposition are opposing the extra time on Report that the Government have volunteered. The Opposition did not request extra time, but they now argue there is not enough. As my hon. Friend the Member for Cambridge (Dr Huppert) rightly pointed out, if the Opposition succeed, the time devoted to discussing these important issues will be reduced rather than increased. [Interruption.] The Opposition Whip can continue chuntering from a sedentary position as much as he likes, but he has left himself in the ridiculous position of voting for the Bill to have less time devoted to it, rather than more. That is not effective opposition or Opposition whipping.

Perhaps I may correct one factual point. The hon. Member for Birmingham, Erdington said that the Government waited until after the tabling deadline to announce that they would not be tabling amendments on the maximum sentence in section 3 of the Dangerous Dogs Act 1991. That is not the case. The Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker), wrote to my hon. Friend the Member for Bedford (Richard Fuller) on that issue last Thursday, and the tabling deadline for amendments to be debated tomorrow was last Friday. Indeed, my hon. Friend the Member for Bedford has tabled amendments on that issue, so we can debate it tomorrow.

I take the point raised by my hon. Friends the Members for Esher and Walton (Mr Raab) and for Enfield North (Nick de Bois). Progress through the amendments tomorrow will be a matter for the House, but I see no reason why there should not be an opportunity to debate the important reforms to our extradition arrangements. The protestations from the Opposition simply do not add up.

[Dr Julian Lewis (New Forest East) (Con)]

We have often been in this situation and found that we have not had enough time to debate important amendments. Would the Minister have any objection to some of the important amendments being put to the vote if the guillotine falls before we have had time to debate them?

[Damian Green]

As my hon. Friend knows, it is not for Ministers to decide whether things are put to the vote; that is up to the Chair.

The hon. Member for North Durham (Mr Jones) prayed in aid what happened in previous Parliaments. As I have said, this programme motion provides for additional time on Report. Indeed, this is the sixth Bill this Session that has received multiple days for its remaining stages. That is in stark contrast to the previous Government whom the hon. Gentleman supported and who routinely provided for only one day on Report and Third Reading. There is much more scrutiny of Bills under this Government than there was under the previous Government, and if the Opposition succeed there will be less parliamentary discussion—as is characteristic of the Labour party—rather than more, which is what the coalition Government have introduced.

On reflection, I hope the hon. Member for Birmingham, Erdington will reconsider his position and allow the programme motion to pass without further ado so that we can get on with the substantive issues before the House.

Question put.

17:02

Division 96

Ayes: 294

---

Conservative: 247
Liberal Democrat: 45
Independent: 2

Noes: 227

---

Labour: 221
Scottish National Party: 3
Social Democratic & Labour Party: 1
Plaid Cymru: 1
Green Party: 1

Anti-social Behaviour, Crime and Policing Bill

Monday 14th October 2013 Commons Chamber

[1st Allocated Day]

Consideration of Bill, as amended in the Public Bill Committee

New Clause 8

Violent offender orders

‘(1) In section 98 of the Criminal Justice and Immigration Act 2008 (violent offender orders), after subsection (5) there is inserted—

“(6) The Secretary of State may by order—

(a) amend subsection (3);

(b) make consequential amendments to subsection (4).”

(2) In section 147(5) of that Act (orders etc subject to affirmative resolution procedure), after paragraph (d) there is inserted—

“(da) an order under section 98(6),”.

(3) In section 99 of that Act (qualifying offenders), in paragraph (b) of subsection (5) (meaning of “relevant offence”) after “a specified offence” there is inserted “, or the offence of murder,”.’.—(Damian Green.)

Brought up, and read the First time.

17:18

[The Minister for Policing and Criminal Justice (Damian Green)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dawn Primarolo)]

With this, it will be convenient to discuss the following:

Government new clause 14—Sexual harm prevention orders and sexual risk orders, etc.

Government new clause 15—Saving and transitional provision.

New clause 5—Child sexual abuse prevention orders—

‘(1) The Sexual Offences Act 2003 is amended as follows.

(2) For sections 123 (Risk of sexual harm orders: applications, grounds and effect) to 129 (Effect of conviction etc. of an offence under section 128) substitute—

“123 Child Sexual Abuse Prevention Orders: Applications and grounds

(1) On the application of a qualifying person, or on conviction of a qualifying offence, a magistrates’ court may make a ‘child sexual abuse prevention order’ if it is satisfied that it is necessary to make such an order for the purposes of protecting children generally or any particular child from serious sexual harm from the defendant.

(2) A qualifying person under subsection (1) shall be a chief officer of police or an officer, of superintendant rank or above, in the NCA or other relevant agency to be decided by the Home Secretary.

(3) In subsection (1) a defendant shall be considered to be convicted of a qualifying offence who—

(a) is convicted of an offence listed in schedules 3 and 5;

(b) is found not guilty of such an offence by reason of insanity;

(c) is found to be under a disability and to have done the act charged against him in respect of such an offence;

(d) is cautioned in respect of such an offence;

“(1) A chief officer of police may apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area.

(2) An application under subsection (1) may be made to a magistrates’ court whose commission area includes—

(a) any part of the police area, or

(b) any place where it is alleged that the defendant committed one or more offences listed in schedules 3 and 5.

Section 123: supplemental

‘(1) In this Part, ‘Child Sexual Abuse Prevention Order’ means an order under section 123.

(2) Subsections (3) and (4) apply for the purposes of Section 1.

(3) ‘Protecting children generally or any particular child from serious sexual harm from the defendant’ means protecting persons under 18 or any person under 18, in or outside the United Kingdom, from serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3.

(4) Acts, behaviour, convictions, and findings include those occurring before the commencement of this Part.

(5) In subsection (1)(1), a person shall also be considered to have been convicted of a qualifying offence if, under law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—

(a) he has been convicted of a relevant offence (whether or not he has been punished for it),

(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,

(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or

(d) he has cautioned in respect of a relevant offence.

(6) In subsection (5), a ‘relevant offence’ means an act which—

(a) constituted an offence under the law in force in the country concerned, and

(b) would have consituted an offence within schedules 3 and 5 if it had been done in any part of the United Kingdom.

(7) An act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law for the purposes of subsection (6), however it is described in that law.

(8) Subject to subsection (9), on an applicatioin under section 1 the condition in subsection (6)(b) above (where relevant) is to be taken as met unless, not later than rules of the court may provide, the defendant serves on the applicant a notice—

(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in his opinion met,

(b) showing his grounds for that opinion, and

(c) requiring the applicant to prove that the condition is met.

(9) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without the service of a notice under subsection (8).

Child-SAPOs: effect

‘(1) A Child Sexual Abuse Prevention Order—

(a) prohibits the defendant from doing anything described in the order, and

(b) has effect for a fixed period (not less than five years) specified in the order or until further order.

(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting children generally or any particular child from serious sexual harm from the defendant.

(3) Where a court makes a child sexual abuse prevention order in relation to a person already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

(4) Section 3(3) applies for the purposes of this section and section 5.

Child-SAPOs: variations, renewals and discharges

‘(1) A person within subsections (2) may apply to the appropriate court for an order varying, renewing or discharging a child sexual abuse prevention order.

(2) The persons are—

(a) the defendant;

(b) the chief officer of police for the area in which the defendant resides;

(c) a chief officer of police who believes that the defendant is in, or is intending to come on to, his police area;

(d) where an order was made on an application under section 1(1), the chief officer or other qualifying person who made the application.

(3) An application under subsection (1) may be made—

(a) where the appropriate court is the Crown Court, in accordance with rules of the court;

(b) in any other case, by complaint.

(4) Subject to subsections (5) and (6), on the application of the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the child sexual abuse prevention order, that the court considers appropriate.

(5) An order may be renewed, or varied so as to impose additional prohibitions on or to lift prohibitions from the defendant, only if it is necessary to do so for the purposes of protecting children generally or any particular child from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose).

(6) The court must not discharge an order before the end of five years beginning with the day on which the order was made, without the consent of the defendant and—

(a) where the application is made by a chief officer of police, that chief officer, or other qualifying person or

(b) in any other case, the chief officer of police for the area in which the defendant resides.

(7) In this section ‘the appropriate court’ means—

(a) where the Crown Court or the Court of Appeal made the child sexual abuse prevention order, the Crown Court;

(b) where a magistrates’ court made the order, that court, a magistrates’ court for the area in which the defendant resides, or where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the chief officers’ police area or any area where the alleged offences occurred.

(c) where a youth court made the order, that court, the youth court for the area in which the defendant resides or, where the application is made, any youth court whose commission area includes any part of a chief officer’s police area or any place where the alleged offences occurred.

(8) This section applies to orders under—

(a) Section 5A of the Sex Offenders Act 1997 (c.51) (restraining orders),

(b) Section 2 or 20 of the Crime and Disorder Act 1998 (c.37) (sex offender orders made in England and Wales and Scotland),

(c) Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland), and

(d) as it applies to child sexual abuse prevention orders.

Interim Child-SAPOs

‘(1) This section applies where an application under section 123(1) (‘the main application’) has not been determined.

(2) An application for an order under this section (‘an interim child sexual abuse prevention order’)—

(a) may be made by the complaint by which the main application is made, or

(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3) The Court may, if it considers it just to do so, make an interim child sexual abuse prevention order, prohibiting the defendant from doing anything described in the order.

(4) Such an order—

(a) has effect only for a fixed period, specified in the order;

(b) ceases to have effect, if it has not already done so, on the determination of the main application.

(5) The applicant or the defendant may by complaint apply to the court that made the interim child sexual abuse prevention order for the order to be varied, renewed or discharged.

(6) Subsection (5) applies to orders under—

(a) Sections 2A or 20(4)(a) of the Crime and Disorder Act 1998 (c.37) (interim orders made in England and Wales Scotland), and

(b) Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (interim orders made in Northern Ireland),

as it applies to interim child sexual abuse prevention orders.

Child-SAPO and interim Child-SAPO appeals

‘(1) A defendant may appeal to the Crown Court against the making of a child sexual abuse prevention order under section 123(1).

(2) A defendant may appeal to the Crown Court aginst the making of an interim child sexual abuse prevention order under section 127(3).

(3) A defendant may appeal against the making of an order under section 127(3), or the refusal to make such an order—

(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;

(b) in any other case, to the Crown Court.

(4) On an appeal under section (1), (2) or subsection (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.

(5) Any order made by the Crown Court on an appeal under sections (1) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purpose of subsecitons 126(7) and 127(6) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).

Offence: breach of a Child-SAPO or interim Child-SAPO

‘(1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by—

(a) a child sexual abuse prevention order;

(b) an interim child sexual abuse prevention order,

(c) an order under section 5A of the Sex Offenders Act 1997 (c.51) (restraining orders);

(d) an offender under sections 2, 2A or 20 of the Crime and Disorder Act 1998 (c.37) (sex offenders orders and interim orders made in England and Wales and in Scotland);

(e) an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I., 1998/2839 (N.I. 20)) (sex offender orders and interim orders made in Northern Ireland).

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for at term not exceeding five years.

(c) where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional disharge or, in Scotland, a probation order.

(3) The Home Secretary shall issue guidance on the use of child sexual abuse prevention orders and interim child sexual abuse prevention orders within six months of this section coming into force.”.’.

New clause 7—Possession of prohibited written material about children—

‘(1) Section 62 of the Coroners and Justice Act 2009 (offence of possession of prohibited images of children) is amended as follows.

(2) In subsection (1), after “prohibited image of a child” insert “or prohibited written material about a child”.

(3) After subsection (2) insert—

“(2A) Prohibited written material about a child is written material which—

(a) is pornographic,

(b) falls within subsection (6), and

(c) is grossly offensive, disgusting or otherwise of an obscene character.”

(4) In subsection (3), after “image” insert “or written material”.

(5) After subsection (5) insert—

“(5A) Where (as found in the person’s possession) written material forms part of a series of written material, the question whether the written material is of such a nature as is mentioned in subsection (2A) is to be determined by reference to—

(a) the written material itself, and

(b) (if the series of written material is such as to be capable of providing a context for the written material) the context in which it occurs in the series of written material.

(5B) So, for example, where—

(a) written material forms an integral part of a narrative constituted by a series of written material, and

(b) having regard to those written materials as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,

the written material may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.”

(6) In subsection (6), insert “or written material” after the word “image” each time it appears.’.

Government new schedule 1—Amendments of Part 2 of the Sexual Offences Act 2003.

Government amendments 63 and 92 to 94.

[Damian Green]

The Government proposals are in my name and that of my right hon. Friend the Home Secretary. New clauses 14 and 15, and new schedule 1, will simplify and strengthen the existing civil order regime under the Sexual Offences Act 2003. The inspiration for the reforms is the Childhood Lost campaign of my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), who has attracted more than 100,000 signatures to her online petition and the support of 67 right hon. and hon. Members on both sides of the House, who have added their names to my hon. Friend’s new clause 5. I pay tribute to her and those on both sides of the House who have campaigned so effectively on this important issue.

The Government essentially agree with the campaign and we are determined to do everything we can to protect the public from predatory sexual offenders. The UK has some of the toughest powers in the world to manage the risks posed by sex offenders, but in recognition of the important points highlighted by my hon. Friend’s campaign we are bringing forward amendments to the Sexual Offences Act 2003 to make our powers even more effective.

[Ann Coffey (Stockport) (Lab)]

I seek clarification from the Minister. The risk of sexual harm orders, which the new sexual risk orders would replace, can be given only to offenders aged 18 and over. Will the new sexual harm prevention orders also only apply to offenders over 18? If they will apply to offenders under 18, what consideration has he given to introducing accompanying rehabilitative provisions for child sex offenders?

[Damian Green]

If I may, I will first pay tribute to the hon. Lady, who has campaigned on these issues for a long time and deserves much of the credit for raising public awareness. If I may, I will come to the details of the offences shortly.

New clauses 14 and 15, and new schedule 1, will repeal the sexual offences prevention order, foreign travel order and risk of sexual harm order in England and Wales, and replace them with two new orders: the sexual harm prevention order and the sexual risk order. I welcome the engagement of hon. Members on this issue and I hope that my hon. Friend the Member for Oxford West and Abingdon will be pleased to note that we have sought to include her points as far as possible in the Government amendments. Indeed, following consultation with front-line professionals, including the police, the courts, the National Offender Management Service and the National Crime Agency, in a number of respects the Government amendments go further than her new clause 5.

The sexual harm prevention order will be available for those with convictions for sexual or violent offences. It may be made by a court on conviction, or by the magistrates court on application by the police or the National Crime Agency. A court may impose an order for the purposes of protecting the public in the UK and/or children or vulnerable adults abroad from sexual harm.

The sexual harm prevention order may prohibit the person from doing anything described in it, including preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. It lasts a minimum of five years and has no maximum duration, with the exception of any foreign travel restrictions which, if applicable, lasts for a maximum of five years but can be renewed.

The second new civil order is the sexual risk order, which will be available for those who have not been convicted of an offence but who none the less pose a risk of sexual harm to the public. It may be made by the magistrates court on application by the police or the new National Crime Agency where an individual has done an act of a sexual nature and poses a risk of harm to the public in the UK or adults or vulnerable children overseas.

[Dr Julian Huppert (Cambridge) (LD)]

When the Minister mentioned the sexual risk orders, he helpfully highlighted the fact that they will apply to people who have not been convicted of any offence. What level of proof and standard of evidence will be needed to show that someone has done something of a sexual nature, and what would be included in that?

[Damian Green]

There is a specified list, which applies to the existing orders, and they are the obvious acts of a sexual nature. I take my hon. Friend’s point and, like him, I am very keen to see proper safeguards. That is why even the sexual risk order has to be made by a magistrate, so it will have judicial oversight and will not simply be available on the application of the police. That is a significant safeguard, and I hope that he would welcome that.

Any prohibition in the sexual risk order must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. Such an order will last a minimum of two years and has no maximum duration, with the exception of any foreign travel restriction which, if applicable, lasts for a maximum of five years, but can be renewed.

[Dr Huppert]

rose—

[Damian Green]

Before I give way to the hon. Gentleman, I will address the point made by the hon. Member for Stockport (Ann Coffey). The two new orders will apply to both over-18s and under-18s.

[Dr Huppert]

I thank the Minister for his earlier comments and for his understanding of the need for safeguards. I do not think he addressed the level of proof required in the court—whether it would be beyond reasonable doubt, or the balance of probability. Will he also explain, on the sexual risk order in particular, why the orders cannot be for less than two years? Why does he want to constrain magistrates?

[Damian Green]

We wish to avoid impracticalities in the system—we do not want to clog up the court system. The orders are serious enough to have that minimum period, and one hopes that it will make them effective and not mean a constant throughput of extra cases in the magistrates court. I will come on to more of the details, which I hope will reassure my hon. Friend.

The new regime will extend to England and Wales, although the protections afforded by the new orders will continue to relate to persons elsewhere in the UK, or beyond where necessary. We have included provision for cross-border enforcement and continue to liaise closely with the devolved Administrations.

I can perhaps answer my hon. Friend’s question directly by addressing what has changed. A number of key changes make the new sexual harm prevention order and the new sexual risk order more robust, more flexible and therefore more effective than previous orders. The new orders may be made to manage broader categories of risk, allowing them to be used in particular to manage risk against adults and vulnerable adults, as well as children. All members of the public deserve to be adequately protected from sexual harm. This change will ensure that dangerous individuals can be managed, regardless of to whom they present a risk.

Furthermore, the condition for the availability of the new sexual risk order is that the defendant has done an act of a sexual nature as a result of which it is necessary to protect the public. The previous “non-conviction” order required that the person concerned must have done at least two acts from a specified list of risky behaviour. The new provisions allow for an order as soon as an individual presents a risk.

As well as local police forces, the National Crime Agency will be able to apply for either of the new orders. This is a reflection of its expertise and access to intelligence on aspects of sexual offending, particularly against children. The NCA will be required to notify the relevant force area, which will continue to be responsible for managing offenders. I hope that that reassures my hon. Friend that the standard of proof will be the criminal standard of proof—the highest standard.

The remit of the new orders will be wider. For example, either will allow foreign travel restrictions to be applied. Our determination to prevent harm to children and vulnerable adults applies outside the United Kingdom as well as within. Individuals subject to the new sexual harm prevention order will be required to inform the police whenever their name or address changes. This will improve the police’s ability to monitor and manage individuals subject to these orders.

Those are the changes. What we are keeping are the aspects of the old orders that have been shown to be effective. In line with the old order, the new sexual harm prevention order will make the offender subject to the notification requirements for registered sex offenders—it will put them on the sex offenders register. For both new orders, in line with the existing position, breach is a criminal offence punishable by a maximum of five years’ imprisonment. Conviction for a breach of a sexual risk order would also make that individual subject to the sex offender notification requirements.

[Dr Huppert]

The Minister is being very generous in giving way and I thank him. One of the things he is keeping the same is the list of acts in the Sexual Offences Act, one of which states:

“giving a child anything that relates to sexual activity or contains a reference to such activity”.

There are some cases where that would clearly be inappropriate, but it might include a wide range of literature and textbooks, and that is presumably not the intention. How will the Minister ensure that there is no misinterpretation? We are keen to ensure the safeguards are correct.

[Damian Green]

As I said, I very much share the hon. Gentleman’s desire for the safeguards to be effective. That is why I laid great stress on the fact that this order will have to be made in court, so that if, as he suggests, a textbook has been given to a child, one imagines that—except in very odd circumstances—no sensible magistrate would regard that as in any way disturbing or warranting this type of activity. In this instance, we can rely on the protections that the courts rightly afford individuals to ensure that sensible decisions are made on these types of orders.

17:30

What the new orders do is to ensure that the balance is even more firmly in favour of protecting the vulnerable from the risk of sexual harm. They will improve the use and effectiveness of this method of managing the risk to the public, and they will give the police and the National Crime Agency the flexibility they need to manage those individuals better.

Let me deal briefly with new clause 8, which adds murder committed overseas to the list of offences that may form the basis for making a violent offender order. These are civil preventive orders, which can be used by the police to impose restrictions on offenders convicted of a specified violent offence and who pose a risk of serious violent harm to the public. They can prohibit their access to certain places, premises, events or people to whom they pose the highest risk. Murder was not originally one of the specified offences for application of a violent offender order because an individual convicted of murder in the UK is managed indefinitely as a result of his automatic life sentence. Having identified this gap in the reach of a violent offender order, this new clause is designed to close it. In addition, new clause 8 will enable additions to be made to the list of specified offences through secondary legislation, subject to the affirmative procedure. Offenders and offending change over time, and it is right that the legislative powers for managing such behaviour can also change, while retaining appropriate parliamentary oversight.

That covers the main Government amendments, which I commend to the House.

[Diana Johnson (Kingston upon Hull North) (Lab)]

I thank the Minister for setting out the amendments in the group. These are a completely new set of provisions on child protection, which the House did not have the opportunity to deal with on Second Reading or in Committee, so we are grateful for the opportunity to discuss them this afternoon. The House has, however, had several excellent debates on child protection over the last year, which is testament to how seriously colleagues of all parties take these issues and want to engage with them.

The amendments before us are the result of hard work and concern across the House. I want to pay tribute in particular to the hon. Member for Oxford West and Abingdon (Nicola Blackwood) for her sterling work. I pay tribute, too, to the hon. Member for Mole Valley (Sir Paul Beresford), whose new clause appears in this grouping; to my hon. Friend the Member for Stockport (Ann Coffey), who has done an enormous amount of work on this subject; and to my right hon. Friends the Members for Leicester East (Keith Vaz) and for Wythenshawe and Sale East (Paul Goggins).

Government new clause 8 is the lead amendment in the group. As the Minister has set out, it is designed to make a sensible addition to the offences that can lead to action being taken against those who commit them. As we know, this came out of the tragic case of Maria Stubbings, who was murdered by her ex-partner, Marc Chivers. The Independent Police Complaints Commission recognised that there were gaps in the law in respect of the supervision of offenders convicted overseas. The Opposition are pleased to support this sensible new clause.

Government new clause 14 deals with sexual harm prevention orders and sexual risk orders, while I understand Government new clause 15 deals mainly with saving and transitional provisions. Government new schedule 1 provides for the practical introduction of the new orders, alongside new clause 5, tabled by the hon. Member for Oxford West and Abingdon and 67 other hon. Members, as the Minister pointed out, which creates the new child sexual abuse prevention order.

The Opposition support the need to amend the current law. The sexual abuse and grooming cases that occurred in Oxford shocked the country, and the hon. Member for Oxford West and Abingdon has rightly gained huge respect from across the House for the serious way in which she has looked to address the issues with the Childhood Lost campaign. I know that she has worked with a number of charities, including the National Society for the Prevention of Cruelty to Children, Barnardo’s, the Children’s Society, ECPAT UK, Action for Children, and many others.

We are pleased that the Government have accepted the need for change, and have tabled their own amendments. We especially welcome the fact that the Government amendments extend the risk of sexual harm orders to adults as well as children. We should be interested to hear how the Minister intends to address the other key activities of the Childhood Lost campaign which are important in keeping our children safe.

Ten years on, it is right for us to think about what was done by the Sexual Offenders Act 2003 and what parts of it need to be updated. The Act was a milestone that played a crucial role in improving our legislation on sex offences in many key respects, for instance by outlawing grooming. I pay tribute to my right hon. Friend the Member for Wythenshawe and Sale East for the key role that he played in introducing the legislation.

The sad truth is that sex offenders, more than any other group of offenders, are prone to reoffend. We must accept that most sex offenders continue to pose a threat to children after their initial offences. That does not, of course, mean that all offenders will reoffend, but it does mean that we should try to identify those who pose the greatest risks, and try to do everything possible to mitigate those risks. Labour introduced three distinct powers which were intended to control the risks posed by known sex offenders.

The Minister referred to the sexual offences prevention order, which was the first order that could be imposed on someone who had been convicted, and was to be applied at the time of conviction—or subsequently by the police—only if there was evidence of dangerous behaviour after offending. It covered both children and adults. The order allowed the courts to impose conditions on the offender that they considered to be necessary to reduce the risk of sexual harm. The risk of sexual harm order could be imposed without a conviction if a chief police officer had a reasonable belief that someone within his region had twice committed a sexual offence, and that an order was necessary to protect the public. That covered only children. The foreign travel order could be imposed only after conviction, but required evidence of post-conviction behaviour that gave cause for concern. An example was the order imposed on Paul Gadd, also known as Gary Glitter.

I think that all those measures were important, and demonstrated the commitment of the last Government to combating sex crime. However, it is clear that all three now need to be improved. The hon. Member for Oxford West and Abingdon has undertaken important work in that regard in considering how we can improve the operation of the orders. I pay tribute to the recent report by the Association of Chief Police Officers and Hugh Davies QC on the workings of the current regime. New clause 5, tabled by the hon. Lady, would reform the risk of sexual harm order and establish a child sexual abuse prevention order extending to children under 18 rather than 16. It also—importantly—covers children and young people both inside and outside the United Kingdom, and would remove the requirement for two contact offences to be considered before an order could be made.

The Government’s proposals create two new orders. New clause 14 creates the sexual harm prevention order, which can be applied to anyone who has been convicted or cautioned for a sexual violent offence, including offences committed overseas. It will replace the sexual offences prevention and foreign travel orders. The new order will be required for the purpose of protecting the public generally, or any particular member of the public, from sexual harm. I understand that the new clause removes the requirement for a risk of serious sexual harm, which takes it down one level. The Opposition welcome that. The court must be satisfied that the defendant’s behaviour makes it necessary for an order to be made. Again, only one contact offence is required, which means that more people can be included in the grouping.

[Mr Robert Buckland (South Swindon) (Con)]

The hon. Lady is providing a very helpful summary of the changes. I think that the removal of the word “serious” is a very important change, because it significantly widens the ambit of police activity in this area. The word “serious” creates quite a high threshold, and far too many cases were slipping through the net because they did not meet that criterion.

[Diana Johnson]

I am grateful for that intervention, and I know that the hon. Gentleman speaks from a great deal of experience as a member of the Bar and so fully understands the implications of the removal of the word “serious” from this definition.

Sexual risk orders can be applied to any individual who poses a risk of sexual harm in the UK or abroad, even if they have never been convicted, and replace the risk of sexual harm orders—again, these orders will apply to both adults and children. In response to my hon. Friend the Member for Stockport, the Minister confirmed that the sexual risk order could be applied to a child sex offender but did not deal with the other issue she raised about the rehabilitation of a child who was subject to one of these orders. Will he deal with that in his closing remarks and say what is being put in place to support those children and young people to rehabilitate them?

One key theme of these new orders is that both are equally committed to protecting children across the world. That is vital, because sex crimes are committed across the globe and, increasingly, paedophiles will cross borders to commit abuse. The global nature of sex crimes means that it is right that we make it easier to prevent foreign travel by known paedophiles and that we give equal prominence to crimes committed abroad when we are looking at the imposition of a civil order to protect children in the UK. We also need, however, to examine the issue of people who have not been convicted but pose a threat to children. I understand that the changes proposed today will also make it easier to impose an order when a criminal offence has not been committed. Such an example may be where an individual has attempted grooming on the net, for example, by impersonating a young person on social media, but has not actually, at that stage, committed a crime. Will the Minister explain whether the Government have any plans for introducing changes to legislation to make the grooming of a child on the internet an offence? I understand that it is only at the point when the person physically meets the child that an offence is committed.

One thing that the hon. Member for Oxford West and Abingdon has drawn attention to in the very good briefing she has provided is the fact that very few risk of sexual harm orders have been imposed each year. We hope that these new provisions will make it easier to acquire an equivalent restriction, by making orders applicable to cases where a crime was committed aboard or where the behaviour does not constitute an offence at this time. However, I wish to refer to the issue raised by the hon. Member for Cambridge (Dr Huppert), which related to the standard of proof required.

One reason it is hard to impose a risk of sexual harm order is that such orders demand a criminal standard of proof, even though they are civil orders, and that difficulty may remain in respect of the future orders. The demand for a criminal standard of proof was not actually in the Sexual Offences Act and there was some confusion therefore about the standard of proof required. The Home Office did issue guidance, which suggested a civil standard of proof—the “reasonable belief” approach. However, the courts tended to take a different approach and it was only in 2012—[Interruption.] I can see that the hon. Member for South Swindon (Mr Buckland) is about to intervene. It was only in 2012 that the issue was settled by the courts in the case of Commissioner of Police of the Metropolis v. Robert Ebanks, which established a binding precedent on the criminal standard.

[Mr Buckland]

The hon. Lady is making a very important point about the standard of proof. One key consideration is that breach is a criminal offence, and therefore there is a serious issue to consider as to the criminal consequences of a civil order that could be obtained by a civil standard of proof. That consideration was uppermost in the mind of the court considering that case and should be uppermost in our minds. As legislators, we need to get the balance right, and so the standard of proof should be a high one.

[Diana Johnson]

I am grateful to the hon. Gentleman. Again, I know that he speaks from great experience. I simply ask why so few orders have been taken through the courts and whether we need to consider the whole issue of the standard of proof that is required. We support the Government’s new clauses and amendments, which we think have a lot of merit.

[Dr Huppert]

I have been following everything that the hon. Lady says. I presume that she is not suggesting that someone should be jailed for five years without requiring a criminal standard of proof. Surely that is not what she is suggesting.

17:45

[Diana Johnson]

I find it extremely annoying that when Liberal Democrats get to their feet on child protection issues, when we are making sure that our children have the protection that we all want to see, this is the issue that is pursued. I am asking how best we can protect our children. There is genuinely a question to be asked about the standard that is used in the orders. The Government have chosen to introduce some new orders, which I fully support, but it is worth considering whose side we are on. Given some of the abuse cases that we have heard, particularly in the constituency of the hon. Member for Oxford West and Abingdon, we need to think long and hard about where our instincts should lie in ensuring that our children are protected.

[Dr Huppert]

rose—

[Diana Johnson]

I will continue, because I have a feeling that this debate could go on all night with the Liberal Democrats.

I want to ask the Minister and the hon. Lady whether they feel that the threshold might be too high. I accept—the Liberal Democrats will like this bit—that there is a significant cost to the individual on whom an order is placed, reputationally, and particularly if that becomes public. We know that, because of public disgust associated with sex crimes, the effect of a sex offence order being imposed on an individual, whatever it is called, will be devastating to that individual.

It has not helped that the risk of sexual harm orders that were previously in place have been called, I think wrongly, sex offence ASBOs, because the higher standard of proof makes that comparison unhelpful. At the same time, we must accept that there will be many occasions when the police have a well founded, reasonable belief that someone poses a risk to children but are not able to secure a conviction, because, for example, they cannot present in open court the evidence required. In particular, the situation could arise if a vulnerable witness is not in a position to give evidence in court. In such cases, we may want a civil protection order, precisely because we cannot get a conviction at the higher criminal standard. Will the Minister comment on whether the new orders will allow for far more cases to be subject to the orders?

[Mark Reckless (Rochester and Strood) (Con)]

We have learnt that many of the problems in this area have been a failure of enforcement—a failure of the various agencies to work together or to understand what was going on. However, I want to press the hon. Lady on the previous question. If someone has a civil order and then breaches it, could they go to prison for up to five years without at any point the criminal standard having been satisfied?

[Diana Johnson]

The new clauses and amendments have been tabled by the Government and the hon. Member for Oxford West and Abingdon and they are best able to comment on that. My understanding of them is that a term of imprisonment of up to five years is applicable if an order is breached. I am asking a genuine question about whether what we want to achieve through the orders will be achieved by having a criminal standard for a civil order. The hon. Gentleman might want to take that up with the Minister when he responds.

I am conscious of time and of the fact that many other hon. Members want to speak so I will raise only a couple of other issues. Will the Minister explain the situation on appeals and rights of review that might be open to people who are put on the orders? With the scrapping of indeterminate sentences, might we have people on the street subject to the orders who in the past might well have remained in prison, and is the Minister satisfied with that situation?

The hon. Member for Mole Valley raises an important issue in new clause 7. It is topical given that at the weekend W. H. Smith had to withdraw information and e-books from its website. It has taken too long to obtain acceptance of the fact that viewing child abuse images is an integral part of the abuse process. Only the abusers deny that now. We know that viewing abuse often triggers behaviours in individuals. We know that Stuart Hazel and Mark Bridger had both been viewing legal pornography simulating violent sex and abuse prior to committing appalling crimes. The new clause, which deals with the written form of that abuse, is worth looking at. I hope that the Minister will comment further on that. We need to be careful, because we do not want genuine literature that describes abuse in a totally acceptable way to be captured.

[Sir Paul Beresford (Mole Valley) (Con)]

If the hon. Lady looks at the new clause, she will see that the second half covers that point, so “Lolita”, for example, would be all right.

[Diana Johnson]

I am grateful to the hon. Gentleman for that clarification. I hope that the Minister will be able to confirm when he responds that that is the legal advice he has received. On that basis, it is really important that the issue is addressed.

Finally, if the provisions set out in new clause 7 are introduced, the Child Exploitation and Online Protection Centre, which is now part of the National Crime Agency, will have more work to do. It already struggles with the images it has to look at, so if it will have to deal with the written word as well. I think that there is a case to be made for the Minister addressing how resources for that will be made available.

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

I thank the Minister and the shadow Minister for their opening remarks. I will speak to new clause 5 and the Government amendments relating to prevention orders. I think that by now colleagues will be familiar with my reasons for tabling the new clause. The vast majority of children in this country grow up free from fear, but a vulnerable minority never know a safe or happy childhood. I will never forget sitting in the Old Bailey and listening to truly harrowing evidence of how a violent organised crime gang systematically groomed girls on Oxford’s streets to sell them for sex from as young as 11, plying them with hard drugs to make them more compliant to being repeatedly raped by strangers and conditioning them to believe that that was what real relationships were like. Too many colleagues in this House have had the same experience as me, as cases have emerged across the country. Every police force and local authority needs to take positive and proactive preventive action to root out this vile crime.

Patterns of grooming behaviour are now much better understood. We should be aiming to disrupt the process before it progresses to systematic sexual abuse, because the consequences of failing to intervene are both well documented and appallingly destructive. However, over the past few years case after case has emerged in which child protection agencies in possession of detailed intelligence have seemed unable to intervene.

In our inquiry into child sexual exploitation, the Home Affairs Committee came to a number of conclusions on why it was happening. The wider conclusions are for another day, but even leading forces, such as Lancashire police, who are proactive not only in innovative investigative techniques, but in disrupting grooming behaviour using methods such as abduction notices, licensing enforcement and dispersal orders, found that a key tool—civil prevention orders—just was not working. They have been on the statute book since 2003, as we have heard, and should be at the forefront of the fight against grooming, but instead they were found to be fundamentally flawed by a 2012 review commissioned by the Association of Chief Police Officers and written independently by Hugh Davies QC and a team of experts.

Since 2003 our understanding of patterns of sex offending and disruption techniques has progressed significantly. The purpose of new clause 5 is to reflect that progress and resolve the flaws in the existing orders. I welcome the fact that the Government have accepted the case for reform and tabled amendments today. Put simply, the reformed orders will protect more vulnerable children from sexual exploitation. That could not be more urgent, because the Children’s Commissioner estimated only this year that 16,500 children are at risk of sexual exploitation, but the prevention orders are still failing to protect them.

Before explaining how the proposed reforms will address that, let me explain why the current orders are not working. Three orders were legislated for in the Sexual Offences Act 2003: the sexual offences prevention order, the foreign travel order and the risk of sexual harm order. A SOPO can be sought on conviction, or on proof of relevant offending behaviour subsequent to that conviction, to protect a UK adult or child. An FTO can be sought on proof of offending behaviour subsequent to previous sexual conviction and can be sought to protect non-UK children. Despite some misleading coverage of this campaign, the ROSHO is already a pre-conviction order, and it can be sought on proof of two contact offences to prevent serious sexual harm to children under the age of 16. Neither new clause 5 nor the Government’s amendments would create a revolutionary pre-conviction order today. That has been an accepted necessity since 2003.

No one in this House would disagree with the principle that a person is innocent until proven guilty, which is a fundamental principle of the rule of law, but in no way would that be compromised by these amendments. The case against a defendant would have to be proved to the criminal standard, and a defendant’s procedural rights under the proposals would be identical to those in place under the current provisions. The fact is that a criminal prosecution is not the only mechanism that is necessary to achieve an acceptable level of protection against the sexual abuse of children.

Criminal prosecution is not always possible. In some situations a prosecution is found not to be in the interests of a child victim, and therefore not in the public interest. In other situations there might be compelling evidence or some technical reason why the evidence is not found to be admissible. In other cases, as we have seen recently, a vulnerable witness might simply find the court process too traumatic and so the case collapses. Anyone who follows the progress of policing and the criminal justice system will recognise that uncomfortable reality. That is why this year there were more than 23,000 reported sexual crimes against children but only 4,051 of them were prosecuted.

[Mr Buckland]

I pay warm tribute to my hon. Friend for the outstanding work she is doing on this issue. I echo her point about the sometimes sad limitations of the criminal justice system, which I have worked in over many years, including dealing with this type of case. I support her case about the criminal standard of proof needed for obtaining the orders and then, if the order is breached, a further criminal procedure in which the criminal standard of proof would apply, so the necessary balances and safeguards are in place.

[Nicola Blackwood]

Absolutely. To answer the shadow Minister’s question about whether a civil standard would be appropriate, I think that it is important to ensure that we maintain the balance. The reason it was not possible to achieve ROSHOs previously was the combination of two contact offences plus a standard of serious sexual harm. I do not think that the necessary approach now is to lower that standard of proof.

Some have expressed concern that these orders are intended as an alternative to prosecution, but that is not the case; they are simply a practical necessity alongside prosecution. As a civil order they are no different in nature from other civil orders designed to protect children, such as injunctions or restraining orders in a family court or a barring order in respect of regulated activity.

If we fail to intervene and protect vulnerable people from foreseeable harm, even if prosecution is not possible, we are failing in our duty of care. The current orders are failing. The requirement to prove two contact offences for the ROSHO produces the absurd result that an offender who sexually touched a 15-year-old twice would be eligible for an order but an offender who raped a four-year-old once would not be—the police would have to wait for the offender to do it again. That is not a sensible way to assess risk.

Furthermore, given the existence of a specific form of order to prevent foreign travel, ROSHOs have never been used in practice to protect children abroad. The outcome is that non-UK children enjoy a materially lower level of protection than an equivalent child in the UK. I hope that the House will agree that there is absolutely no defence for that disparity. Today’s proposals put an end to that inequality, which must be welcomed.

There are other basic flaws in the existing regime. Application for all three orders can be made only by the local chief of police, but all too often an offender travels ahead of the evidence between force areas, especially in grooming and trafficking cases. The ROSHO applies only in relation to children up to the age of 16, meaning that 16 to 18-year-olds, who might have been caught up in abuse from a much younger age, can only be protected by a SOPO with a much higher threshold.

Meanwhile, the sexual abuse of children is big business in many destination countries. Hundreds of thousands of children are routinely trafficked for that purpose. Although offenders often have a clear record of offending in different jurisdictions, they can still escape prosecution in each, as many jurisdictions simply fail to prosecute due to different standards of children’s rights or pure corruption. In that context, the FTO threshold for offending behaviour subsequent to a conviction is entirely unworkable. It is unsurprising that since 2005 only 50 FTOs have been granted. In 2007, a year in which 70 British citizens sought consular assistance for child sexual offence arrests, not a single FTO was granted.

New clause 5 applies solely to children because that is the focus of my campaign, and it is intended to remedy these shortcomings: it abolishes the arbitrary requirement to prove two contact offences; it includes UK and foreign children, offering them equal protection; it allows a senior specialist officer from the National Crime Agency to apply for an order to plug the gap of itinerant offenders travelling ahead of the evidence and it raises the age limit to 18; and it introduces an interim provision to prevent itinerant offenders from fleeing the jurisdiction.

18:00

I am delighted that the Government’s proposed sexual risk order incorporates all these changes and applies them more widely to adults and vulnerable adults, but well-drafted guidance will be crucial to ensure these orders are effectively used as an offender management and disruption tool within a wider strategy of prevention and prosecution. That guidance will need to clarify that offenders under the age of 18 must be treated in an age-appropriate way. This order is much less likely to be appropriate to regulate activity between older teenagers than it would be where, perhaps, an older child presents a serious risk to a much younger child. I hope the guidance will include an understanding of sexually-related activity to take into account documented patterns of grooming and sex tourism.

Peter Davies, chief executive of CEOP, has called these reforms a very powerful, very useful new tool to prevent harm to children at the earliest possible opportunity, and I am grateful to everybody who has supported the Childhood Lost campaign. Over 100,000 people have signed our petition, and 67 colleagues have signed up to new clause 5. Police, lawyers, the Children’s Commissioner, the NSPCC, Barnardo’s, the Children’s Society, PACE—Parents against Child Sexual Exploitation—Save the Children, ECPAT, Action for Children, OXCAT and others have all been very vocal in voicing their support, but one particular parent explained why she was supporting the campaign by telling the story of her daughter. She wrote:

“A group of men I didn’t know befriended my 14 year old daughter, Alice, and started to sexually exploit her. They did this by giving her gifts, taking her to ‘parties’ and giving her drugs and alcohol but all the time with the real threat of actual violence hanging over her. There were rules at the ‘parties’ and girls were beaten if they did not have sex with the men…We knew who they were, where they lived and what they were doing; yet nothing was done to stop these men contacting my daughter again and again.”

She added:

“I was told it was not enough for action to be taken”

and continued:

“Police should have had the power to prevent these men contacting and abusing my daughter…I believe that if the police had been able to use a prevention order children would not have been raped by these men.

It is terrifying that these men got away with so much for so long and that other children are still trapped in similar situations.”

Used properly, these orders will protect victims, they will disrupt grooming, and they will prevent sex tourism. These reforms are the right thing to do, and for these reasons I will not press my amendment to a Division, but instead I ask all Members who think the police should be able to step in to protect girls like Alice to support the Government amendments to protect people from child sexual exploitation.

[Keith Vaz (Leicester East) (Lab)]

May I begin by apologising to the hon. Member for Oxford West and Abingdon (Nicola Blackwood) for not being present for the start of her speech?

I want to contribute briefly to the debate in order to congratulate the hon. Lady on the incredibly effective work she has done on the issue of grooming. She has a constituency interest, of course, as Operation Bullfinch was going on in Oxford and she has been monitoring what has been happening to the victims, but she was also instrumental in beginning the important Childhood Lost campaign, and I was present at its launch with the Minister, who gave a very effective speech. She has decided not to press her amendment to a Division, but instead has urged the House to support what the Government are doing. I am glad that the Government are following the recommendations of the Select Committee. I think all in the House who are concerned about the grooming of children and the crimes being committed against young people and children will want to see effective action being taken. What we have seen in some of the criminal cases is just the tip of the iceberg, and the hon. Member for Keighley (Kris Hopkins), who has now been promoted to Minister in the Department for Communities and Local Government, gave very passionate and effective evidence to the Select Committee.

I support what the hon. Lady has said, I commend her on her marvellous efforts in this area, and I certainly hope the Government will continue to take forward the recommendations of the Select Committee—I see that the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless), who serve on the Committee, are present. We will revisit our recommendations six months after publication of the report, which will be at about Christmas time, when we will see what progress has been made, but I know that in the Minister we have someone who is determined to do something very serious and radical about stopping those who seek to exploit children, and I fully support what the hon. Lady has said.

[Sir Paul Beresford]

I echo those congratulations. One thing I have discovered in this House is that it is possible for Back Benchers with a really good cause to push it and persuade a Government—whatever Government. The other thing to be said about this evening’s debate, at least until 7 o’clock, is that there is cross-House agreement —and, I hasten to add to the Opposition Front Bench, even the Liberal party is on board—and that has been the case on this area for some considerable time.

The Sexual Offences Act 2003 is the legislation being changed tonight. Although the Act came in under a Labour Government, I am sure the right hon. Member for Wythenshawe and Sale East (Paul Goggins), who was a Minister at about that time, would agree that there was huge cross-party support and thinking behind the scenes. Indeed, I was on the Home Office taskforce that did a lot of the work leading up to the child protection part of that Act.

Tonight, however, I want to focus on my new clause 7, which would amend section 62 of the Coroners and Justice Act 2009, entitled “Possession of prohibited images of children”. Those prohibited images are pornographic images, and they may take various forms, including photographs, pseudo-photographs, cartoons and computer-generated images. They may be moving or still, too. The link between the possession and the viewing and actual action against children is generally accepted, as the hon. Member for Kingston upon Hull North (Diana Johnson) said from the Opposition Front Bench.

The ludicrous situation is that an individual will be liable for prosecution for possession of photographs, pseudo-photographs, computer-generated images and so on, but not for the written word describing child sex abuse in pornographic, and often lurid, detail. All, including the written word in this form, are designed by the individuals concerned for sexual stimulation over the sexual abuse of children. If an individual wrote from his or her imagination a graphic description of child sexual abuse—which could, and often is, more emotive and more graphic than any picture of any form—even if he or she described one of those pictures or cartoons, that individual could not be prosecuted for the possession of this graphic material, even though for many of these individuals the written word is more powerful.

Let me give a simple example that I gave in speaking to my ten-minute rule Bill last Wednesday. CEOP provided me with the details of a man from Kent who wrote describing his wish to kidnap an early-teenage girl, strip her, sexually abuse her in an exceptionally unpleasant way and then, in an even more unpleasant way which I will not detail, slowly kill this girl. It is horrific, especially as his writings then inspired this individual to actually carry it out. He is in prison, hopefully for a very long time if not for ever, but the teenager is gone. One would have thought that the early discovery of the writings could have helped, but if the police had found them they would have had no power to act. This new clause has developed out of discussions with members past and present of the Metropolitan police paedophile unit and with the team leading CEOP in this area, and is supported by it, including Peter Davies.

CEOP last year published a research document on paedophile cases. It is mentioned in the report, almost as a sideline, that some offenders possess graphic notes or writings of child abuse. The Home Secretary has written to me on this matter stating she is asking for a report from CEOP on the need for this change. As the Minister will recall, some months ago both CEOP and the head of the Metropolitan police paedophile unit joined me in making a presentation to him. They brought some of the literature; I did not. The officers supported the need for this change. They explained that they had seen volumes of material in their search for illegal child abuse photographs. As the possession of such written material is not illegal, they obviously disregarded it, seeking only, at high speed and using computer technology, child abuse images.

[Dr Huppert]

The hon. Gentleman is clearly talking about some horrific material, and I am listening carefully to his case. He is far more expert in this area than I am. How does this link in with the Obscene Publications Act 1959? Does not that provide some protection in this area?

[Sir Paul Beresford]

No, it does not. I am looking at changes to the Coroners and Justice Act 2009, not to the Obscene Publications Act. Otherwise I would wander into deep mire, which I am sure that Liberal Members would help me wallow in further.

[Mr Buckland]

The Obscene Publications Act was very much on my mind as well. Very often this material is generated by the offenders themselves and is privately retained, so I think it would fall foul of some of the definitions in that rather elderly piece of legislation. The material that is obtained can sometimes be used as incriminating evidence to help prove the general character and intent of individuals with an interest in child abuse, who are sadly far too prevalent. Do the police find difficulty in using that material as incriminating evidence, or do they want more information?

[Sir Paul Beresford]

My hon. Friend goes halfway towards putting the case. He is right, but the police tell me that they do not really use that Act. They need this one tiny change in the legislation to add to the opportunities for prosecution and to use when they bring these individuals to court.

I was told that I needed to tweak the wording, so I did something absolutely outrageous: I invited the Attorney-General for a cup of coffee, not even a glass of wine, and he ran a cursory glance, if Attorney-Generals run cursory glances over anything, at the wording and seemed to feel that it was satisfactory. I am not going to hold him to that, as it would probably cost me a glass of wine.

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

The hon. Gentleman has given the House a valuable insight into how, for at least 10 years, he has followed these issues through with successive Ministers and very persuasively engaged them in the merits of his argument. I would be very happy to support his new clause, because graphic and extreme written material about child abuse is every bit as abusive as an image of child abuse. He is absolutely right to try to ensure that this loophole in the law is closed so that this is a very clear and separate offence.

[Sir Paul Beresford]

I thank the right hon. Gentleman. I am delighted to have his support. When he was a Minister he was receptive to many of the changes that I suggested. He tweaked them so that they went through to another place without my name attached, but the effect was still the same.

Some have questioned whether genuine, legitimate literature such as “Lolita” would be covered by section 62(5) of the 2009 Act. To be completely clear, the written material that I am targeting can be as shocking as images described as level 5 based on the classification used by the courts. The section refers to prohibited images that it describes as

“pornographic…grossly offensive, disgusting or otherwise…obscene”

and

“of such a nature that it must be reasonably assumed to have been produced solely or principally for the purpose of sexual arousal.”

In certain cases, that description, which is applied to photographs, can, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) said, be applied equally to the written word. Such material is quite different and it is horrific. Its distribution is prohibited, and so should be its possession.

[Mr Andrew Smith (Oxford East) (Lab)]

I strongly support the remarks of and the campaign by my friend, the hon. Member for Oxford West and Abingdon (Nicola Blackwood). Her initiative and that of the Childhood Lost campaign, which I have strongly supported, will be especially warmly welcomed by my constituents and hers, who are horrified at what was uncovered by the Operation Bullfinch investigation and prosecutions in Oxford. They are very worried that it was not possible to stop these crimes happening earlier and that even now there are people it has not been possible to bring to justice before the courts because of the difficulty in giving evidence. Anything that can be a step forward in stopping these horrific crimes must be greatly welcomed.

I want to underline an enormously important point that the hon. Lady made about the strength and clarity of guidance that is given on the use of these orders and the importance of each local area having the wherewithal to carry them into effect. In the wake of Operation Bullfinch, in Oxford we have had established the Kingfisher unit, which she and I jointly visited. It brings together all the relevant agencies and undertakes preventive and educational work as well as helping to bring cases to justice. We need such units in every part of the country. There has to be the strongest guidance to ensure that these orders are going to be used. I look forward to an assurance from the Minister that there will be close reporting and monitoring on the extent and areas of their use so that this House can see the progress that we all very much hope the bringing into law of these orders will represent.

18:15

[Dr Huppert]

It is a pleasure to speak in this debate. I pay tribute to my colleague on the Home Affairs Committee, the hon. Member for Oxford West and Abingdon (Nicola Blackwood), who gave a fantastic example of her grasp of the details of this subject and her attitude to it. I served with her on the Committee during its inquiry into child sexual exploitation in response to localised grooming, when we all shared experiences that will stay with me and, I am sure, with her for the rest of our lives. Some of the things we saw and heard about were absolutely horrific. It is to her great credit that she has responded in a very measured way to try to address this. Her speech was exemplary in that regard.

We all think that abuse of children and of any vulnerable adult is completely and utterly unacceptable. It is a heinous crime. Everybody in this House opposes it and wants to see it ended; that is absolutely clear. It is also clear that a crime of this nature is a crime regardless of where it happens. When people go overseas to abuse children, that cannot be okay just because those children happen not to be British. That much is absolutely, completely and utterly clear.

The hon. Lady outlined very well a number of improvements in what the Government are suggesting. For example, it seems odd that a rule was brought in saying that there must be two offences before a breach of something becomes a serious matter. I struggle to think of any other examples where someone would have to do something twice before there was perceived to be a problem. It is absolutely right to get rid of that.

I was very surprised by several of the comments by the hon. Member for Kingston upon Hull North (Diana Johnson). There is a danger that we get trapped in the idea that we must do anything to protect children. It becomes a mantra: “Won’t somebody think of the children?” We do need to protect children but in a way that will work and will not cause us problems. It is an important principle that people do not get jailed based on anything less than the criminal standard of proof. I was genuinely horrified by her suggestion that it would be worth considering something else. I accept that this is a deeply emotional area, and we all want to protect children. I hope that on reflection she will reconsider some of her comments about my perspective on that. We all want that protection to happen, but we must also ensure that we do not break some of the principles of the rule of law.

[Diana Johnson]

In discussing civil orders I merely raised a question about the appropriate standard of proof. I was not suggesting that we should move to a lower standard but merely questioning whether keeping the higher standard was the best thing to do and asking the Minister and the hon. Member for Oxford West and Abingdon (Nicola Blackwood) to reflect on that. I hope that the hon. Gentleman will express that properly when he refers to my views and not try to suggest that I was putting forward any other view.

[Dr Huppert]

I thank the hon. Lady for that clarification. My own view is that I would not even want to consider the idea of jailing somebody without going through the criminal process, because that is a fundamental position of our law. She was indeed only questioning it, but I am still surprised that it would even be questioned.

[Mark Reckless]

The record will of course show this, but does my hon. Friend agree that his point was to raise a concern that Labour Members might allow someone to be jailed for five years on the basis of balance of probabilities? All we heard back from the shadow Minister was an ad-hominem, or at least ad-party, attack on him, as though only a Liberal Democrat could object to such a thing. That is extraordinary.

[Dr Huppert]

I agree factually with the hon. Gentleman, but I do not want to dwell on that, because it detracts from the excellent work that has been done by the hon. Member for Oxford West and Abingdon and so many others.

Questions still need to be answered for us to understand the details and the guidance, as the hon. Lady said. That is critical. I listened carefully to her comments about the idea that not everyone subject to an order could be jailed, but I would hope that that would be the principal aim. I think we would all like people who abuse children or vulnerable adults to go to jail, rather than receive a civil order. The gap between the two should be closed as much as possible.

I am concerned that there will still be strange applications. The case of Simon Walsh was interesting—it was surprising that it was brought in the first place— and he was eventually found not guilty, but I think he might have been caught by new clause 5, so I remain concerned about how we can avoid that happening when people have been found explicitly not guilty. I think we will have a chance to look at that and clarify the details.

Finally, I accept new clause 5 and have no problems with it becoming part of the Bill. I congratulate the hon. Lady on tabling it and the Minister on accepting it. One of my key findings during the Home Affairs Committee inquiry was that, yes, there is room for legislative change, but the vast majority of the problem was caused by organisational failures and by people not trusting or listening to young people—a series of things that will not be fixed by legislation. We must not delude ourselves that passing a law that makes certain behaviour illegal and that implements orders will, in and of itself, make the difference needed.

[Simon Danczuk (Rochdale) (Lab)]

I am sorry that I was not able to be here for the beginning of the debate; unfortunately, I had Select Committee business. I have no doubt that I would have enjoyed the contributions, particularly the alleged verbal attack on the Liberal Democrats.

I want to discuss two things: first, the great contribution made by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), and, secondly, the Government’s proposals on sexual predators and the use of the orders to prevent such behaviour.

I pay tribute to the hon. Lady for her exceptionally good campaign. Members will be aware of what has become known as the Rochdale grooming scandal. The Home Affairs Committee did excellent work on that and other cases of on-street grooming. My hon. Friend the Member for Stockport (Ann Coffey) has also done much to raise concerns about such issues. The campaign run by the hon. Member for Oxford West and Abingdon has been second to none, and that is a credit to her. It will play an important part—this should not be underestimated—in helping to protect young people from sexual predators, such as those we have seen not just in Rochdale, Oxford and Rotherham, but in many other towns and cities across the country.

I am pleased with and welcome the Government’s proposals, which consolidate and strengthen the provisions put in place by the previous Labour Government. Had the orders been in place some years ago, I am convinced that, had agencies such as Greater Manchester police used them, they would have stopped a lot of the abuse that occurred in Rochdale. We now know that there was a failure by Rochdale council social services and its exceptionally unhealthy culture at the time.

[Keith Vaz]

My hon. Friend was one of the most vocal in the criticisms of the way in which Rochdale council operated. Is he satisfied that the council understands the seriousness of the situation and that, under its new chief executive, it is putting in place the proper processes to make sure that the situation is monitored? It cannot stop it happening again, but is my hon. Friend satisfied that things have changed for the better?

[Simon Danczuk]

I appreciate my right hon. Friend’s intervention. I am more satisfied than ever that Rochdale council is playing its part in tackling on-street grooming.

It is important to note that we still await the serious case review on Rochdale. I would think that it is imminent, so it should be available in the next month or two. I think it will raise questions—not much light has been cast on this—about the performance of Greater Manchester police and whether it acted effectively enough in terms of intervening. I suspect that the serious case review will show some failings in that regard. That relates to the proposals under discussion because, had they been in place at the time, not only would the tools have been available to the police, but an emphasis would have been placed on their need to use them.

[Nicola Blackwood]

I am grateful to the hon. Gentleman for his kind words. To pick up on the point made by the hon. Member for Cambridge (Dr Huppert), the orders are welcome and will allow police forces to intervene earlier, but they must sit within a wider strategy of prevention and prosecution if we are to have any hope of genuinely tackling child sexual exploitation in the long term.

[Simon Danczuk]

I completely agree. Much of this is about not just the tools available, but the culture in the local agencies, whether they be the council, the Crown Prosecution Service, the police or the NHS and its primary care services.

Finally, I welcome the proposals. This is Parliament at its best. We are amending existing legislation, not creating something completely new. This is about listening to the concerns of Back Benchers and their campaigns, and about getting cross-party support, which I welcome.

[Damian Green]

I thank hon. Members from all parties, not just for their universal support for the measures, but for the sensitive and sensible tone with which they have conducted the debate. My hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) will by now be blushing because of the amount of praise she has received. She should note that it has not been conventional praise—it is not a case of the House being conventionally polite—but that everyone, from all parties, really means it. She and the charities she has rightly mentioned have conducted an exemplary campaign on an issue of great contemporary importance. It is a subject that a few people have cared about hugely for ages, and now the whole country understands the important and urgent need to take effective action, which is precisely what we are seeking to do.

[Mark Reckless]

The Minister has said that a few people campaigned on the issue. Does he agree that others failed to follow through on this because they did not understand and recognise what was happening, and that some people perceived that earlier than they did?

[Damian Green]

Clearly, there were widespread failures in a number of institutions and that is what a large number of people are seeking to rectify now. That brings me on naturally to my next point—this addresses many of the questions that have been rightly asked and the powerful point made by the hon. Member for Cambridge (Dr Huppert)—which is that, although what we are doing is necessary, it is certainly not sufficient to believe that it will eradicate this terrible crime.

We seek to protect children as a high priority beyond legislation, and it is the need for that much more widespread change of attitude and culture in institutions that informs the work of the National Group on Sexual Violence against Children and Vulnerable People, which I chair and whose membership is indicative of the widespread group of people necessary to act on this terrible crime. It includes not only a number of Departments, such as the Home Office to deal with the criminal elements and the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson) and his representatives, but the health service, local government and the police, which have important roles to play. The group also includes many non-governmental organisations and charities. Such organisations often sit outside governmental structures and shout through their megaphones about how Government should be doing things better. It seems to me that in a matter of such seriousness and urgency, having them sitting at the table from the start saying, “This is how you should do things,” is likely to produce a much faster and more sensitive response to the problems.

18:30

The group will address some of the issues that have been brought up in this debate, such as rehabilitation, which the hon. Member for Kingston upon Hull North (Diana Johnson) rightly mentioned. There is a wide range of issues that it could deal with, but we have set four immediate priority areas. Our top priority is prevention because, as we all agree, the best way to solve this problem is to prevent it from happening in the first place.

The second priority is the attitude of the police. Extra training is required so that police officers who are approached with evidence of child abuse and particularly of grooming like that seen in Oxford, Rochdale and other areas are better trained than they have been to assess the credibility of the story, rather than of the witness. One of the problems is that many of the young girls who come forward are in care or in trouble with the police and are likely to be involved in drugs and alcohol, not least because they have been put on them by the men who are grooming them. They may not, therefore, appear at first to be the most credible or compelling of witnesses. Looking beyond the individual in front of them to the terrible and frightening crime that lies beyond is a skill that police officers can learn through training. The police are trying hard to do that across the regional police forces and through the National Crime Agency.

The third priority is the criminal justice response. The House has discussed before the necessity for witnesses not to be intimidated out of giving necessary evidence by the traditional court procedures. Before the end of the year, we will pilot the use of pre-recorded video evidence by vulnerable witnesses in three centres, so that the full panoply of the court, which often puts witnesses off and intimidates them, is not there. We will be piloting that shortly to ensure that the appropriate safeguards are in place for the defendant.

[Ann Coffey]

On the support that is available in court for vulnerable witnesses, does the Minister agree that it is not acceptable that registered intermediaries are appointed in so few cases? If we are to support vulnerable witnesses, particularly child witnesses, we must make it a matter of course that registered intermediaries are appointed at the earliest possible stage, even before the first police interview.

[Damian Green]

Appointing registered intermediaries before the first police interview may be difficult in practical terms, but I accept the hon. Lady’s general point that we need better support mechanisms for vulnerable witnesses. Some of those mechanisms will involve institutional change, as I have said, but the provision of intermediaries may also be required.

The fourth priority of the group is online protection and, in particular, attacking the use of vile child abuse images online. There is therefore a lot of work to do beyond this legislation.

I will respond to some of the individual points that have been raised. The right hon. Member for Oxford East (Mr Smith) asked about close reporting on the monitoring and extent of the powers. Various other Members talked about the necessity for guidance. The Government amendments require statutory guidance to be issued. We will work closely with the police, the NCA and others in considering the best way to apply the new orders.

We have had a vigorous debate about the use of the criminal standard of proof. If I may try to reconcile what has been the only scratchy part of this debate, there is a balance to be struck. We could apply the civil standard to the new order, but one consequence would be that a breach of the order would not be a criminal offence punishable by up to five years in prison. I hope that those who are doubtful about the level of proof will accept that what we are proposing strikes the right balance, given the risk of harm to children and vulnerable adults. As my hon. Friend the Member for Oxford West and Abingdon explained, it is not the criminal standard of proof that led to the disappointing use of the original three orders in the Sexual Offences Act 2003.

The hon. Member for Kingston upon Hull North asked about legislation on the grooming of children on the internet. The orders that we are discussing may be used to restrict internet use, so they will hopefully have a direct effect on that type of criminal behaviour. However, it is worth repeating that the principle that what is criminal offline is criminal online always applies. There is no separate law that applies to the online world. If something is a crime in the real world, it is a crime in the online world. As I have said, cybercrime is one of the four immediate priorities of the national group.

I was asked about the appeal mechanism. An individual who is the subject of either kind of order will be able to appeal against the making of that order under the proposed new sections of the Sexual Offences Act 2003. In addition, after an order is made, there is the right to apply for it to be varied or discharged. I hope that the appropriate safeguards are in place for people to make appeals.

[Nicola Blackwood]

I welcome the protections that allow defendants to apply for variation and discharge. However, I notice that under the Government amendments, only local chief officers are able to apply for the variation or discharge of an order. I understand that that is intended to maintain the management of the offender at a local level. However, the NCA might come across evidence of different forms of offending and might want to get involved in an application for variation. I hope that the guidance will make it clear how that will work.

[Damian Green]

That is a valid point. To deal with the practical point, once an order is made, the supervision of it will be in the hands of the local police. It is sensible for them to be on the front line of making any application to vary the order. Obviously, the NCA will make it a habit to work closely with local forces when they are working together in specific areas, as they will be in this case. It should become entirely habitual for the NCA to pass evidence to local forces. I know that the leadership of the NCA is determined to do that. There needs to be better connections between policing at the national and local levels, and we are seeking to address that problem. My hon. Friend should rest assured that she is not the only person who will be watching closely to ensure that that co-operation takes place.

As my hon. Friend the Member for Mole Valley (Sir Paul Beresford) explained, new clause 7 seeks to extend the offence of possessing a prohibited image of a child in section 62 of the Coroners and Justice Act 2009. That offence is committed when a person possesses a pornographic non-photographic image of a child that is grossly offensive, disgusting or otherwise obscene. My hon. Friend, together with the right hon. Member for Wythenshawe and Sale East (Paul Goggins), wants to extend that offence to include the written word. I add my thanks to the many that have been given this evening to both Members for their personal efforts in the fight to protect children from abuse. Their motivation for the new clause is entirely laudable, and it is quite right for the House to have the opportunity to discuss it.

Written material that describes the sexual abuse of children is undoubtedly distasteful and disturbing. As my hon. Friend said, he and I have had many discussions and meetings on the matter, and I put it to him that criminalising the possession of the written word in any context is a significant step, and we should pause before taking it. In our view, it is a step that should be taken only once we know the full extent of the problem. In this case, there are two particular requirements. First, there must be evidence that possession of such material is causing harm to children. Secondly, it must be practical for the police—in this case CEOP—to go through all the material on people’s computers. It is much more difficult to do that with the written word than with images. As my hon. Friend said, there is special technology that allows speedy checks of images. We are working on improving that technology, but it is more difficult in the case of the written word. If, after considering those caveats, we conclude that there is a case for changing the law, we will need to ensure that we go about it in the right way so that it has some practical effect and improves child protection.

New clause 7 touches on a number of sensitive issues, and any changes that we bring about need to be both proportionate and effective. I cannot commend it to the House today, but I absolutely assure my hon. Friend and the right hon. Gentleman that we intend to continue considering thoroughly whether the law should be changed in the way that they suggest. As my hon. Friend said, CEOP has already provided some information, and my officials continue to work with it to investigate the issue further and get the full body of evidence that is necessary if we are to take the drastic step suggested. As soon as we reach a conclusion on that, we will decide what action to take. I know that my hon. Friend will continue to play a role in gathering evidence and discussing it with Ministers, but I hope that he will agree not to press new clause 7 to a Division.

I congratulate my hon. Friend the Member for Oxford West and Abingdon on her commitment and her drive to ensure that we have the necessary powers to protect children from sexual harm. I now know that she and the House agree that the Government amendments will deliver what new clause 5 was intended to achieve, and more, so I commend them to the House.

[Sir Paul Beresford]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

No, you do not get another opportunity to speak, Sir Paul, but I assume that you do not wish to press new clause 7.

[Sir Paul Beresford]

A reasonable assumption.

[Madam Deputy Speaker]

Thank you. Maybe next time it would be helpful to make a point of order.

Question put and agreed to.

New clause 8 accordingly read a Second time, and added to the Bill.

New Clause 14

Sexual harm prevention orders and sexual risk orders, etc

‘(1) Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] (amendments of Part 2 of the Sexual Offences Act 2003) has effect.

(2) In section 142 of the Sexual Offences Act 2003 (extent etc)—

(a) in subsection (2) (provisions that extend to Northern Ireland, as well as England and Wales), for paragraph (c) there is substituted—

“(c) sections 80 to 88, 89 to 91, 92 to 96, 96B to 103, 122F and 130 to 136ZB;

(ca) Part 2A;”;

(b) after that subsection there is inserted—

“(2A) Sections 110, 117A, 119 and 123 to 129 extend only to Northern Ireland.”

(c) In subsection (3) (provisions that extend to Scotland, as well as England and Wales) for paragraph (a) there is substituted—after that subsection there is inserted—

“(a) sections 80 to 88, 89 to 91, 92, 94 to 96, 97 to 103, 122F, 130 to 132 and 133 to 136ZB;”;

“(3A) Sections 88A to 88I, 96A, 111A, 117B, 120 and 121 extend only to Scotland.

(3B) Sections 104 to 109, 111, 112 to 117, 118 and 122 extend to Northern Ireland and Scotland but not to England and Wales.”’.—(Damian Green.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 15

Saving and transitional provision

‘(1) In this section—

“the 2003 Act” means the Sexual Offences Act 2003;

“existing order” means—

(a) a sexual offences prevention order under section 104 of the 2003 Act;

(b) a foreign travel order under section 114 of that Act;

(c) a risk of sexual harm order under section 123 of that Act;

“new order” means—

(a) a sexual harm prevention order (made under section 103A of the 2003 Act, inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003]);

(b) a sexual risk order (made under section 122A of that Act, inserted by that Schedule);

“old order” means—

(a) a restraining order under section 5A of the Sex Offenders Act 1997;

(b) a sex offender order under section 2 of the Crime and Disorder Act 1998.

(2) The repeal or amendment by this Act of sections 104 to 122 or sections 123 to 129 of the 2003 Act does not apply in relation to—

(a) an application made before the commencement day for an existing order;

(b) an existing order (whether made before or after that day) applied for before that day;

(c) anything done in connection with such an application or order.

(3) The following sections of the 2003 Act inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] apply (as appropriate) to an old order as they apply to a new order—

(a) section 103E (variation, renewal and discharge of sexual harm prevention order);

(b) section 103I (offence of breach of sexual harm prevention order);

(c) section 122E (variation, renewal and discharge of sexual risk order);

(d) section 122H (offence of breach of sexual risk order).

(4) As from the commencement day there may be no variation of an existing order or an old order that extends the period of the order or of any of its provisions.

(5) At the end of the period of 5 years beginning with the commencement day—

(a) in relation to any existing order or old order that is still in force, sections 103E and 103I of the 2003 Act or sections 122E and 122H of that Act (as appropriate) have effect, with any necessary modifications (and with any modifications specified in an order under section 152(6) of this Act), as if the provisions of the order were provisions of a new order;

(b) subsections (2) and (3) cease to have effect.

(6) In this section “commencement day” means the day on which this section comes into force.’.—(Damian Green.)

Brought up, read the First and Second time, and added to the Bill.

New Schedule 1

‘SCHEDULE

Amendments of Part 2 of the Sexual Offences Act 2003

Introduction

1 Part 2 of the Sexual Offences Act 2003 (notification and orders) is amended as set out in this Schedule.

Sexual harm prevention orders

2 After section 103 there is inserted—

“Sexual harm prevention orders (England and Wales)

103A Sexual harm prevention orders: applications and grounds

(1) A court may make an order under this section (a “sexual harm prevention order”) in respect of a person (“the defendant”) where subsection (2) or (3) applies to the defendant.

(2) This subsection applies to the defendant where—

(a) the court deals with the defendant in respect of—

(i) an offence listed in Schedule 3 or 5, or

(ii) a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or

(iii) a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5,

and

(b) the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—

(i) protecting the public or any particular members of the public from sexual harm from the defendant, or

(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

(3) This subsection applies to the defendant where—

(a) an application under subsection (4) has been made in respect of the defendant and it is proved on the application that the defendant is a qualifying offender, and

(b) the court is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make a sexual harm prevention order, for the purpose of—

(i) protecting the public or any particular members of the public from sexual harm from the defendant, or

(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

(4) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for a sexual harm prevention order in respect of a person if it appears to the chief officer or the Director General that—

(a) the person is a qualifying offender, and

(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

(5) A chief officer of police may make an application under subsection (4) only in respect of a person—

(a) who resides in the chief officer’s police area, or

(b) who the chief officer believes is in that area or is intending to come to it.

(6) An application under subsection (4) may be made to any magistrates’ court whose commission area includes—

(a) any part of a relevant police area, or

(b) any place where it is alleged that the person acted in a way mentioned in subsection (4)(b).

(7) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (4).

(8) In this section “relevant police area” means—

(a) where the applicant is a chief officer of police, the officer’s police area;

(b) where the applicant is the Director General—

(i) the police area where the person in question resides, or

(ii) a police area which the Director General believes the person is in or is intending to come to.

103B Section 103A: supplemental

(1) In section 103A—

“appropriate date”, in relation to a qualifying offender, means the date or (as the case may be) the first date on which the offender was convicted, found or cautioned as mentioned in subsection (2) or (3) below;

“child” means a person under 18;

“the public” means the public in the United Kingdom;

“sexual harm” from a person means physical or psychological harm caused—

(a) by the person committing one or more offences listed in Schedule 3, or

(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;

“qualifying offender” means a person within subsection (2) or (3) below;

“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.

(2) A person is within this subsection if, whether before or after the commencement of this Part, the person—

(a) has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,

(b) has been found not guilty of such an offence by reason of insanity,

(c) has been found to be under a disability and to have done the act charged against him in respect of such an offence, or

(d) has been cautioned in respect of such an offence.

(3) A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—

(a) the person has been convicted of a relevant offence (whether or not the person has been punished for it),

(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that the person is not guilty by reason of insanity,

(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence, or

(d) the person has been cautioned in respect of a relevant offence.

(4) In subsection (3), “relevant offence” means an act which—

(a) constituted an offence under the law in force in the country concerned, and

(b) would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.

For this purpose an act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law, however it is described in that law.

(5) For the purposes of section 103A, acts, behaviour, convictions and findings include those occurring before the commencement of this Part.

(6) Subject to subsection (7), on an application under section 103A(4) the condition in subsection (4)(b) above (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice—

(a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant’s opinion met,

(b) showing the grounds for that opinion, and

(c) requiring the applicant to prove that the condition is met.

(7) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (6).

(8) Subsection (9) applies for the purposes of section 103A and this section.

(9) In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—

(a) to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or

(b) to the age of any person,

is to be disregarded.

103C SHPOs: effect

(1) A sexual harm prevention order prohibits the defendant from doing anything described in the order.

(2) Subject to section 103D(1), a prohibition contained in a sexual harm prevention order has effect—

(a) for a fixed period, specified in the order, of at least 5 years, or

(b) until further order.

(3) A sexual harm prevention order—

(a) may specify that some of its prohibitions have effect until further order and some for a fixed period;

(b) may specify different periods for different prohibitions.

(4) The only prohibitions that may be included in a sexual harm prevention order are those necessary for the purpose of—

(a) protecting the public or any particular members of the public from sexual harm from the defendant, or

(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

(5) In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).

(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

103D SHPOs: prohibitions on foreign travel

(1) A prohibition on foreign travel contained in a sexual harm prevention order must be for a fixed period of not more than 5 years.

(2) A “prohibition on foreign travel” means—

(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,

(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or

(c) a prohibition on travelling to any country outside the United Kingdom.

(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 103E.

(4) A sexual harm prevention order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—

(a) on or before the date when the prohibition takes effect, or

(b) within a period specified in the order.

(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual harm prevention order containing a prohibition within subsection (2)(c) (unless the person is subject to an equivalent prohibition under another order).

(6) Subsection (5) does not apply in relation to—

(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;

(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.

(7) In this section “passport” means—

(a) a United Kingdom passport within the meaning of the Immigration Act 1971;

(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;

(c) a document that can be used (in some or all circumstances) instead of a passport.

103E SHPOs: variations, renewals and discharges

(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order.

(2) The persons are—

(a) the defendant;

(b) the chief officer of police for the area in which the defendant resides;

(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;

(d) where the order was made on an application by a chief officer of police under section103A(4), that officer.

(3) An application under subsection (1) may be made—

(a) where the appropriate court is the Crown Court, in accordance with rules of court;

(b) in any other case, by complaint.

(4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate.

(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—

(a) protecting the public or any particular members of the public from sexual harm from the defendant, or

(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.

(6) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—

(a) where the application is made by a chief officer of police, that chief officer, or

(b) in any other case, the chief officer of police for the area in which the defendant resides.

(7) Subsection (6) does not apply to an order containing a prohibition on foreign travel and no other prohibitions.

(8) In this section “the appropriate court” means—

(a) where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court;

(b) where a magistrates’ court made the order, that court, a magistrates’ court for the area in which the defendant resides or, where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the chief officer’s police area;

(c) where a youth court made the order, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court whose commission area includes any part of the chief officer’s police area.

103F Interim SHPOs

(1) This section applies where an application under section 103A(4) (“the main application”) has not been determined.

(2) An application for an order under this section (“an interim sexual harm prevention order”)—

(a) may be made by the complaint by which the main application is made, or

(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3) The court may, if it considers it just to do so, make an interim sexual harm prevention order, prohibiting the defendant from doing anything described in the order.

(4) Such an order—

(a) has effect only for a fixed period, specified in the order;

(b) ceases to have effect, if it has not already done so, on the determination of the main application.

(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual harm prevention order for the order to be varied, renewed or discharged.

103G SHPOs and interim SHPOs: notification requirements

(1) Where—

(a) a sexual harm prevention order is made in respect of a defendant who was a relevant offender immediately before the making of the order, and

(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the order (as renewed from time to time) has effect,

the defendant remains subject to the notification requirements.

(2) Where a sexual harm prevention order is made in respect of a defendant who was not a relevant offender immediately before the making of the order—

(a) the order causes the defendant to become subject to the notification requirements of this Part from the making of the order until the order (as renewed from time to time) ceases to have effect, and

(b) this Part applies to the defendant, subject to the modification set out in subsection (3).

(3) The “relevant date” is the date of service of the order.

(4) Subsections (1) to (3) apply to an interim sexual harm prevention order as if references to a sexual harm prevention order were references to an interim sexual harm prevention order, and with the omission of “(as renewed from time to time)” in both places.

(5) Where—

(a) a sexual harm prevention order is in effect in relation to a relevant sex offender (within the meaning of section 88A), and

(b) by virtue of section 88F or 88G the relevant sex offender ceases to be subject to the notification requirements of this Part,

the sexual harm prevention order ceases to have effect.

(6) On an application for a sexual harm prevention order made by a chief officer of police, the court must make a notification order in respect of the defendant (either in addition to or instead of a sexual harm prevention order) if—

(a) the applicant invites the court to do so, and

(b) it is proved that the conditions in section 97(2) to (4) are met.

(7) On an application for an interim sexual harm prevention order made by a chief officer of police, the court may, if it considers it just to do so, make an interim notification order (either in addition to or instead of an interim sexual harm prevention order).

103H SHPOs and interim SHPOs: appeals

(1) A defendant may appeal against the making of a sexual harm prevention order—

(a) where the order was made by virtue of section103A(2)(a)(i), as if the order were a sentence passed on the defendant for the offence;

(b) where the order was made by virtue of section103A(2)(a)(ii) or (iii), as if the defendant had been convicted of the offence and the order were a sentence passed on the defendant for that offence;

(c) where the order was made on an application under section103A(4), to the Crown Court.

(2) A defendant may appeal to the Crown Court against the making of an interim sexual harm prevention order.

(3) A defendant may appeal against the making of an order under section 103E, or the refusal to make such an order—

(a) where the application for such an order was made to the Crown Court, to the Court of Appeal;

(b) in any other case, to the Crown Court.

(4) On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.

(5) Any order made by the Crown Court on an appeal under subsection (1)(c) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 103E(8) or 103F (5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).

103I Offence: breach of SHPO or interim SHPO etc

(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

(a) a sexual harm prevention order,

(b) an interim sexual harm prevention order,

(c) a sexual offences prevention order,

(d) an interim sexual offences prevention order, or

(e) a foreign travel order,

commits an offence.

(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 103D(4).

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.

103J  SHPOs and interim SHPOs: guidance

(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual harm prevention orders and interim sexual harm prevention orders.

(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).

(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”

Sexual offences prevention orders and foreign travel orders

3 (1) Sections 104 to 122 (sexual offences prevention orders and foreign travel orders) are repealed.

(2) This paragraph extends only to England and Wales.

Sexual risk orders

4 Before section 123 there is inserted—

“Sexual risk orders (England and Wales)

122A  Sexual risk orders: applications, grounds and effect

(1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.

(2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

(3) A chief officer of police may make an application under subsection (1) only in respect of a person—

(a) who resides in the chief officer’s police area, or

(b) who the chief officer believes is in that area or is intending to come to it.

(4) An application under subsection (1) may be made to any magistrates’ court whose commission area includes—

(a) any part of a relevant police area, or

(b) any place where it is alleged that the person acted in a way mentioned in subsection (2).

(5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).

(6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—

(a) protecting the public or any particular members of the public from harm from the defendant, or

(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

(7) Such an order—

(a) prohibits the defendant from doing anything described in the order;

(b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.

(8) A sexual risk order may specify different periods for different prohibitions.

(9) The only prohibitions that may be imposed are those necessary for the purpose of—

(a) protecting the public or any particular members of the public from harm from the defendant, or

(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

(10) Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

122B  Section 122A: interpretation

(1) In section 122A—

“child” means a person under 18;

“harm” from the defendant means physical or psychological harm caused by the defendant doing an act of a sexual nature;

“the public” means the public in the United Kingdom;

“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.

(2) In that section “relevant police area” means—

(a) where the applicant is a chief officer of police, the officer’s police area;

(b) where the applicant is the Director General of the National Crime Agency—

(i) the police area where the person in question resides, or

(ii) a police area which the Director General believes the person is in or is intending to come to.

122C  Sexual risk orders: prohibitions on foreign travel

(1) A prohibition on foreign travel contained in a sexual risk order must not be for a period of more than 5 years.

(2) A “prohibition on foreign travel” means—

(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,

(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or

(c) a prohibition on travelling to any country outside the United Kingdom.

(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 122D.

(4) A sexual risk order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—

(a) on or before the date when the prohibition takes effect, or

(b) within a period specified in the order.

(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual risk order containing such a prohibition (unless the person is subject to an equivalent prohibition under another order).

(6) Subsection (5) does not apply in relation to—

(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;

(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.

(7) In this section “passport” means—

(a) a United Kingdom passport within the meaning of the Immigration Act 1971;

(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;

(c) a document that can be used (in some or all circumstances) instead of a passport.

122D  Sexual risk order: variations, renewals and discharges

(1) A person within subsection (2) may by complaint to the appropriate court apply for an order varying, renewing or discharging a sexual risk order.

(2) The persons are—

(a) the defendant;

(b) the chief officer of police for the area in which the defendant resides;

(c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer’s police area;

(a) where the order was made on an application by a chief officer of police, that officer.

(3) Subject to subsections (4) and (5), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual risk order, that the court considers appropriate.

(4) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—

(a) protecting the public or any particular members of the public from harm from the defendant, or

(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

Any renewed or varied order may contain only such prohibitions as are necessary for this purpose.

(5) The court must not discharge an order before the end of 2 years beginning with the day on which the order was made, without the consent of the defendant and—

(a) where the application is made by a chief officer of police, that chief officer, or

(b) in any other case, the chief officer of police for the area in which the defendant resides.

(6) Section 122B(1) applies for the purposes of this section.

(7) In this section “the appropriate court” means—

(a) the court which made the sexual risk order;

(b) a magistrates’ court for the area in which the defendant resides;

(c) where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the officer’s police area.

122E  Interim sexual risk orders

(1) This section applies where an application for a sexual risk order (“the main application”) has not been determined.

(2) An application for an order under this section (“an interim sexual risk order”)—

(a) may be made by the complaint by which the main application is made, or

(b) if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3) The court may, if it considers it just to do so, make an interim sexual risk order, prohibiting the defendant from doing anything described in the order.

(4) Such an order—

(a) has effect only for a fixed period, specified in the order;

(b) ceases to have effect, if it has not already done so, on the determination of the main application.

(5) The applicant or the defendant may by complaint apply to the court that made the interim sexual risk order for the order to be varied, renewed or discharged.

122F  Sexual risk orders and interim sexual risk orders: notification requirements

(1) A person in respect of whom a court makes—

(a) a sexual risk order (other than one that replaces an interim sexual risk order), or

(b) an interim sexual risk order,

must, within the period of 3 days beginning with the date of service of the order, notify to the police the information set out in subsection (2) (unless the person is subject to the notification requirements of this Part on that date).

(2) The information is—

(a) the person’s name and, where the person uses one or more other names, each of those names;

(b) the person’s home address.

(3) A person who—

(a) is subject to a sexual risk order or an interim sexual risk order (but is not subject to the notification requirements of this Part), and

(b) uses a name which has not been notified under this section (or under any other provision of this Part), or changes home address,

must, within the period of 3 days beginning with the date on which that happens, notify to the police that name or (as the case may be) the new home address.

(4) Sections 87 (method of notification and related matters) and 91 (offences relating to notification) apply for the purposes of this section—

(a) with references to section 83(1) being read as references to subsection (1) above,

(b) with references to section 84(1) being read as references to subsection (3) above, and

(c) with the omission of section 87(2)(b).

122G  Sexual risk orders and interim sexual risk orders: appeals

(1) A defendant may appeal to the Crown Court—

(a) against the making of a sexual risk order;

(b) against the making of an interim sexual risk order; or

(c) against the making of an order under section 122D, or the refusal to make such an order.

(2) On any such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.

(3) Any order made by the Crown Court on an appeal under subsection (1)(a) or (b) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 122D(7) or 122E(5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).

122H  Offence: breach of sexual risk order or interim sexual risk order etc

(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

(a) a sexual risk order,

(b) an interim sexual risk order,

(c) a risk of sexual harm order,

(d) an interim risk of sexual harm order,

(e) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland), or

(f) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland),

commits an offence.

(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 122C(4).

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.

122I  Effect of conviction etc of an offence under section 122H etc

(1) This section applies to a person (“the defendant”) who—

(a) is convicted of an offence mentioned in subsection (2);

(b) is found not guilty of such an offence by reason of insanity;

(c) is found to be under a disability and to have done the act charged against him in respect of such an offence; or

(d) is cautioned in respect of such an offence.

(2) Those offences are—

(a) an offence under section 122H or 128 of this Act;

(b) an offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (contravention of risk of sexual harm order or interim risk of sexual harm order in Scotland).

(3) Where—

(a) a defendant was a relevant offender immediately before this section applied to the defendant, and

(b) the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the relevant order (as renewed from time to time) has effect,

the defendant remains subject to the notification requirements.

(4) Where the defendant was not a relevant offender immediately before this section applied to the defendant—

(a) this section causes the defendant to become subject to the notification requirements of this Part from the time the section first applies to the defendant until the relevant order (as renewed from time to time) ceases to have effect, and

(b) this Part applies to the defendant, subject to the modification set out in subsection (5).

(5) The “relevant date” is the date on which this section first applies to the defendant.

(6) In this section “relevant order” means—

(a) where the conviction, finding or caution within subsection (1) is in respect of a breach of a sexual risk order or a risk of sexual harm order, that order;

(b) where the conviction, finding or caution within subsection (1) is in respect of a breach of an interim sexual risk order or an interim risk of sexual harm order, any sexual risk order or risk of sexual harm order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order.

(7) In subsection (6) “risk of sexual harm order” and “interim risk of sexual harm order” include orders under sections 2 and 5 (respectively) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.

122J Sexual risk orders and interim sexual risk orders: guidance

(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual risk orders and interim sexual risk orders.

(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).

(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”

Risk of sexual harm orders

5 (1) Sections 123 to 129 (risk of sexual harm orders) are repealed.

(2) This paragraph extends only to England and Wales.

Application etc of orders

6 After section 136 there is inserted—

“136ZA   Application of orders throughout the United Kingdom

(1) In this section “relevant order” means—

(a) a sexual harm prevention order;

(b) an interim sexual harm prevention order;

(c) a sexual offences prevention order;

(d) an interim sexual offences prevention order;

(e) a foreign travel order;

(f) a sexual risk order;

(g) an interim sexual risk order;

(h) a risk of sexual harm order;

(i) an interim risk of sexual harm order;

(j) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland);

(k) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland).

(2) For the purposes of sections 103I, 113, 122, 122H and 128, prohibitions imposed by a relevant order made in one part of the United Kingdom apply (unless expressly confined to particular localities) throughout that and every other part of the United Kingdom.

136ZB   Order ceases to have effect when new order made

(1) Where a court in England and Wales makes an order listed in the first column of the following Table in relation to a person who is already subject to an order listed opposite it in the second column, the earlier order ceases to have effect (whichever part of the United Kingdom it was made in) unless the court orders otherwise.

18:45

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Amendment 158, in clause 1, page 1, line 8, after ‘conduct’, insert ‘that might reasonably be regarded as’.

Amendment 163, page 1, line 10, leave out ‘and’ and insert ‘,’.

Amendment 164, page 1, line 10, after ‘convenient’, insert ‘and proportionate’.

Amendment 159, page 2, line 1, leave out ‘doing anything’ and insert ‘specified actions’.

Amendment 160, page 2, line 2, after ‘injunction’, insert

‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in’.

Amendment 161, page 2, line 3, leave out ‘anything’ and insert ‘specified actions’.

Amendment 162, page 2, line 3, after ‘injunction’, insert

‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engaged in’.

Amendment 165, page 2, leave out line 6.

Government amendments 1 to 12.

Amendment 166, in clause 12, page 6, line 29, after ‘court’, insert

‘is satisfied that the exclusion is necessary and proportionate, and’.

Government amendments 13 to 15.

Amendment 167, in clause 21, page 11, line 24, after ‘satisfied’, insert

‘, according to the criminal standard of proof.’.

Government amendment 16.

Amendment 168, page 11, line 27, leave out ‘help in preventing’ and insert ‘prevent’.

Amendment 169, page 11, line 31, leave out ‘doing anything’ and insert ‘specified actions’.

Amendment 170, page 11, line 31, after ‘order’, insert

‘which relate to the anti-social behaviour which the respondent has engaged in’.

Amendment 171, page 11, line 32, leave out ‘anything’ and insert ‘specified actions’.

Amendment 172, page 11, line 32, after ‘order’, insert

‘which relate to the anti-social behaviour which the respondent has engaged in’.

Amendment 173, page 12, leave out line 3.

Government amendment 17.

Amendment 174, in clause 22, page 12, line 44, at end insert—

‘(9) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.’.

Amendment 175, in clause 29, page 16, line 40, at end insert—

‘(7) The courts must taken into account the best interests of the child as a primary consideration when determining reporting a child’s case.’.

Government amendment 18.

Amendment 176, in clause 34, page 20, line 17, at end add—

‘(c) any other form of peaceful assembly.’.

Government amendments 19 to 44.

Amendment 177, page 61, line 22, leave out Clause 91.

Government amendments 45 to 48.

Amendment 96, in schedule 8, page 155, line 32, leave out paragraphs 24 to 27.

Government amendment 82.

[Simon Hughes]

I wish to speak to the new clause and amendments that I and the hon. Member for Aberavon (Dr Francis) tabled, and I will also say a word about the Government amendments and Labour’s amendment 96.

Our amendments all arise from the deliberations of the Joint Committee on Human Rights, which has just completed its report on the Bill. I welcome the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker)—if I can have his attention for a second—to his new responsibilities. I hope it will help him and the House if I say that we do not intend to seek to divide the House on the new clause or the amendments, but I hope that he will be able to give me a positive and constructive response. On many occasions we have been on the same side, trying to get positive and constructive responses from previous Conservative and Labour Governments. We have not always succeeded, but I hope that the new form of double act will allow me to ask for some reasonable changes and him to agree, either today or very shortly, to the changes that we seek.

I will put on record the relevant parts of the summary of the Joint Committee’s report, which we published on 9 October. It was the Committee’s fourth report of this Session. It states:

“The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons on 9 May 2013…It is a substantial Bill containing many provisions with significant human rights implications”.

The new clause relates to one of those implications. All the amendments in this group have human rights implications, which is why Mr Speaker has grouped them

We should like Ministers to pay attention to the issue of antisocial behaviour, which I shall come to expressly; to that of forced marriage; and, probably most politically controversially, to those of powers to stop, question, search and detain at ports, and compensation for miscarriages of justice. We shall come to those matters later in our deliberations.

We are grateful for the way the Bill team facilitated the Committee’s scrutiny of those issues, but we have three qualifications, as set out in our unanimous report. It states:

“First, we doubt whether the mechanisms for ensuring that a systematic analysis of the impact of laws and policies on children’s rights is carried out are yet embedded across Whitehall. We repeat our call for the Government to reassure Parliament that in future it will conduct a thorough assessment of the impact of legislation on the rights of children under the UN Convention on the Rights of the Child before the legislation is introduced. We propose to raise with the Children’s Commissioner the question of what can be done, in practical terms, to accelerate the Government’s progress towards implementing its undertaking to Parliament of nearly three years ago.

Second, the number of significant Government amendments to the Bill with potentially significant human rights implications has made our scrutiny—”

any Committee’s scrutiny, but ours in particular—

“of the Bill’s human rights compatibility more difficult”.

We take up that issue with the Leader of the House on a regular basis, because the more amendments are tabled late in the day, the more difficult Committees such as ours find it to report to the House and advise colleagues on how to respond. The summary continues:

“Third, the Government has not always provided us with information it has promised in sufficient time to enable us to scrutinise it adequately. We call on the Government, once again, to ensure in future that we are provided with the information we request in time to inform our scrutiny of Government Bills.”

Let me address the new clause and amendments to the antisocial behaviour proposals collectively, and then I will consider them individually although I do not anticipate detaining the House for too long. Parts 1 to 6 of the Bill reform current measures on antisocial behaviour, and the Committee’s view is that preventive measures against antisocial behaviour are, in principle, a welcome fulfilment of the state’s positive obligation to protect people against having their rights interfered with by others—that is the important context in which we consider all human rights implications of the Bill’s antisocial behaviour provisions.

New clause 33 would add to the Bill the requirement that

“The courts must take into account the best interests of the child as a primary consideration”

when imposing an injunction. It is a common principle of criminal and welfare law that the best interests of children be taken into account, and we would like that written into the Bill. The new clause simply states that the best interests of the child should be taken into account in four situations, namely when the courts are deciding to impose

“an injunction;

the terms of any prohibition or requirement;

sanctions for breach of an injunction; and

when determining reporting of a child’s case.”.

The Committee considered the human rights compatibility of the new civil injunction to prevent nuisance and annoyance—an IPNA. The Bill states that an IPNA may be imposed if the court considers it “just and convenient” to prevent antisocial behaviour—a lower test than the test of necessity required by human rights law. We also considered that the new IPNA definition of antisocial behaviour is too broad and not clear enough. I hope Ministers will consider positively the idea that the Bill should be as clear as possible and compatible with other legislation; we should not start introducing concepts not found in other legislation, which would mean that people would not know how the law would be interpreted.

In the Committee’s view, the Bill’s current provisions on the prohibitions and requirements that can be attached to an injunction are far too broad. Furthermore, we have not been persuaded that it is necessary to state expressly that prohibitions and requirements in an IPNA must “so far as practicable” avoid any conflict with religious beliefs. The Committee is clear—the House has been clear about this on many occasions—that the freedom to hold religious beliefs, or any beliefs that may not be from a religious perspective, is not a relative right but an absolute right that cannot be interfered with. The power to exclude a person from his or her home through the use of an IPNA is a severe measure, and the Committee believes further provision is required to ensure that such a power is used only when necessary.

As the new sanctions can be imposed on children as young as 10, the Committee also scrutinised the provisions and considered their impact on the rights of children. To reduce the potential negative impact of IPNA measures on children, we recommend that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings. That explains the Committee’s position, and I will now consider quickly other amendments in the group.

[Dr Huppert]

My right hon. Friend is making an extremely good point. Has he had a chance to consider the report by the Home Affairs Committee which, during pre-legislative scrutiny of the Bill, came up with many of the concerns he has highlighted? Perhaps the fact that two different Committees raised the same concerns will mean that our hon. Friend the Minister might reflect more on the issue.

[Simon Hughes]

I am aware of the report by the Home Affairs Committee. One good thing is that since I started—my hon. Friend was very young; indeed, he may not have been alive, or just about, I think—Select Committees have become more useful and effective. They play a strong and useful part not just in considering issues, as the Home Affairs Committee has done, but in looking at legislation and reporting to the House. If we set up Select Committees like the Home Affairs Committee, or the Joint Committee on Human Rights, on which I and the hon. Member for Aberavon have the privilege to serve and which he has the honour to chair, it is nonsensical if our recommendations are not properly considered by the Government.

Amendments 158, 163, 164, 159 to 162, 165 and 166 relate to part 1 of the Bill. They do not require any great supporting speech as I hope they are drafted clearly and make their point. Amendment 158 would amend clause 1 on the power to grant injunctions, and would add to subsection (2) the words “might reasonably be regarded”. If amended, the clause would read:

“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct that might reasonably be regarded as capable of causing nuisance or annoyance to any person”.

That seeks to introduce an objective rather than a subjective test, which we believe would be helpful in ensuring the law is clear.

Amendments 163 and 164 go together and would mean that one test a court should apply when considering whether to impose an injunction, in addition to whether it is “just and convenient”, should be whether it is “proportionate”. That is a simple proposition, and as I know from my constituency work—and, I guess, the same is true for colleagues—it is always difficult to judge whether going to court and getting an injunction is the right way to deal with what may be growing, yet still relatively modest, antisocial behaviour. We think proportionality is appropriate and that it is better to write that into the Bill.

Amendments 159 to 162 ask for greater specificity about what the injunction prohibits, and we have tried to tidy up the language a bit—to put it bluntly—and remove some relatively loose wording. Clause 1(4) currently reads:

“An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—

prohibit the respondent from doing anything described in the injunction;

require the respondent to do anything described in the injunction.”

There is a prohibition provision and a requirement provision. We ask the House to consider whether, rather than “do anything” the clause could be a bit more specific—that is a pretty general phrase not normally found in legislation. Amendment 159 would prohibit the respondent from “specified actions”, so the injunction would state, “You cannot throw stones through windows”, rather than, “You cannot do anything,” which may or may not be specified. “You must stop behaving badly” seems a rather unsatisfactory and general instruction, whether it is men behaving badly, or women or anybody else.

19:00

Amendment 160 would add the phrase

“which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in”

to the end of subsection (4), so we are clear that we think the Bill should link the prohibition contained in the injunction with the behaviour. For example, if people were regularly dive-bombing in Canada Water, which is a lovely bit of my constituency in the Surrey docks, in a way that frightened all the anglers and the fish and the pensioners sitting on the seats, it would be appropriate to have a prohibition that related to the antisocial behaviour of dive-bombing into Canada Water. It would not be appropriate to have a prohibition against throwing paper aeroplanes through the windows of the old people’s home or whatever. I think people get the idea. As the hon. Member for Aberavon would say, we are not a Committee that tries to create extra legislation or complication. We spend quite a lot of time trying to make things simpler and clearer in language that ordinary people can understand, so I hope that is appreciated.

Amendments 161 and 162 relate to the requirement part of the injunction. At present the injunction can

“(b) require the respondent to do anything described in the injunction.”

We would like “anything” to be replaced by “specified actions”. Amendment 162 would add at the end of the requirement provisions the same wording as amendment 160, so it would read:

“(b) require the respondent to do specified actions”

described in the injunction

“which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in.”

We hope that makes the provision clearer and we hope the Government will buy that proposal.

[Dr Huppert]

My right hon. Friend is making an extremely good series of points. Does he share a concern about positive actions? There may be cases where somebody, through no fault of their own, cannot perform a positive action. There were cases with indeterminate sentences, for example, where prisoners were required to do various courses, which in some cases were not available for them to do. Would that also be checked?

[Simon Hughes]

One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.

The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is

“any conflict with the respondent’s religious beliefs”.

As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words

“must, so far as practicable, be such as to avoid—

(a) any conflict with the respondent’s religious beliefs”.

I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.

There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:

“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—

(a) that place is owned or managed by a local authority or a housing provider,

(b) the injunction is granted on the application of the local authority or housing provider, and

(c) the court thinks that—

(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or

(ii) there is a significant risk of harm to other persons from the respondent.”

This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.

There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.

The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.

Amendment 167 inserts after “satisfied” the words

“according to the criminal standard of proof”

in clause 21.

Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.

Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.

Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders

“relate to the anti-social behaviour which the respondent has engaged in”.

That would mean that there was a link between the activity and the public response.

Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.

Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that parts 1 and 2 are consistent and we hope that the Government will be positive about that.

Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:

“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”

We are seeking to ensure that the duty of the court is on the face of the Bill.

Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:

“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—

(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or

(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—

that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.

That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:

“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”

Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?

19:15

The Select Committee makes the point that such a provision is more likely to punish innocent women and children for the mistake of somebody who is more likely to be male, and more likely to be a teenager. That will not necessarily be the case: some of the riots in London involved people who were certainly not teenagers, and some who were certainly not males. They were caught on CCTV and by other cameras. We were very clear, however, that we should remove from the Bill the ability to give power to recover possession on riot-related antisocial behaviour grounds.

I am not an expert, but I believe that most local authorities have the power to terminate possession of tenancies on the basis that somebody has breached their tenancy agreement. It is certainly a breach of a tenancy agreement to behave in a way that seriously causes a nuisance to one’s neighbours or community. There are issues about how close that has to be, and so on. I ask the Government to be very careful in reflecting on the question. Although the easy populist line might be that it is good to have such a power on recovery in the Bill, I ask them to reflect on whether in fact it might be excessive and on the idea that it would not necessarily deal with the offence.

I am not sure and have never been persuaded that taking a home away from family X when one of the children has been involved in breaking the windows of the mobile phone store down the road will stop that youngster breaking the windows of another store later on. It does not seem to me that the sanction on the family as a whole will necessarily deal with what might be the latest in a succession of bad behaviour.

This group contains the largest group of amendments from the Joint Committee on Human Rights to be dealt with today. I hope that I have put the case clearly. We have no objection to the Government amendments that my hon. Friend the Minister will no doubt move later. We do not support the Labour amendment that, obviously, wants to keep the law as it is and to keep antisocial behaviour orders as they are, because the Government think they have a better answer, which is why they have introduced the Bill.

[Mr Steve Reed (Croydon North) (Lab)]

Let me start by paying tribute to my hon. Friend the Member for Ashfield (Gloria De Piero) for the way in which she ably steered this Bill through Committee on behalf of the Opposition and for her work more generally as part of our shadow Home Office team before her well-deserved promotion last week. I also welcome the Minister to his new role and, along with my colleagues, I look forward to debating these important issues with him.

Antisocial behaviour orders have been the cornerstone of the fight against antisocial behaviour since Labour came to power in 1997. In that year, the previous Tory Government had failed to address a problem that blighted communities up and down the country, from suburban lanes to inner-city estates, for which people were long overdue a Government response.

ASBOs are a tough, fair and proportionate last response to persistent perpetrators of antisocial behaviour. They require a criminal burden of proof to be brought in, they are a last resort where other interventions have failed and they work because they are backed by the threat of criminal sanction. In seeking to repeal the legislation that brought in ASBOs, the Government are taking a retrograde and misguided step that will not be welcomed by the communities that live in fear of antisocial behaviour and that have come to know that the police have the power to take tough action backed by criminal sanctions if necessary.

In the Government’s most recent crime survey, 80% of respondents said they believed that antisocial behaviour was increasing under this Government since the general election. One third of respondents said that they had either been a victim of, or witness to, antisocial behaviour. They will be wondering why the Government have chosen to respond to people’s concerns not by toughening the legislation or by empowering the police to take action, but by going soft, taking away the threat of criminal sanction, taking police off the beat to attend training on new and weaker powers of response, and requiring the new injunctions to be taken out not in magistrates courts, which would mean they could be dealt with quickly and efficiently, but in county courts, which are slow and overburdened. Amendment 96 seeks not to prevent the Government from introducing injunctions to prevent nuisance and annoyance—they could be a useful alternative for the police to consider using—but to keep ASBOs on the statute book, leaving it to local councils and police forces to decide what best suits their local areas and needs.

I speak from experience. Before the people of Croydon North elected me to the House last November, I spent nearly seven years as leader of Lambeth council in south London. When Labour won power there in 2006, we found that the Tory-Lib Dem coalition had spent the previous three years stalling ASBOs on ideological grounds. One year, it issued none at all. As a consequence, antisocial behaviour remained too high, without sanction. Young people drifted from antisocial behaviour to low-level crime, and then to high-level crime, including street robberies. Gang violence rose. The fear of crime and the perception that local streets were simply not safe became endemic.

One of the first things the Labour-led council did on taking power was clamp down on antisocial behaviour. Issuing ASBOs, working closely with the police, was a key part of the response.

[Kelvin Hopkins (Luton North) (Lab)]

I congratulate my hon. Friend on his appointment. Conservatives and Liberal Democrats represent areas that are much more prosperous; Labour MPs typically represent by and large urban constituencies, with disadvantaged communities. Is it not the case that ASBOs are much more relevant to the constituencies that Labour Members represent?

[Mr Reed]

My hon. Friend makes an interesting point, but antisocial behaviour can happen in any community. Government Members ought to listen to the people they represent, who do not wish to see them watering down the responses and toolkit available to tackle antisocial behaviour.

To refer again to my experience, Lambeth council increased the use of ASBOs to achieve a reduction in antisocial behaviour not for the slogans or press releases, or to try to look tough, but because it was needed to get a grip of our streets and return confidence to the law-abiding majority of residents. Government Members cannot tell me that ASBOs do not work because I saw how crime fell when a newly elected Labour council worked alongside the police to use ASBOs to great effect in making our streets and our communities safe again.

ASBOs work in part because they are backed by a criminal sanction. Breaching an ASBO is not something to be taken lightly—it is a criminal offence. Persistent antisocial behaviour is deeply damaging to local communities, and people expect effective sanctions. With Labour’s ASBOs, that is exactly what they got. Instead, the Government propose to take away the criminal sanction. Offenders can breach IPNAs in the full knowledge that they are not committing a crime. If the police or local councils want action taken against someone who has breached their IPNA and who is terrorising a local community, they will not get support from the criminal justice system. There is no automatic penalty. Instead, the breach of an IPNA will lead to the potential of civil action brought under the contempt of court proceedings. Offenders across the country will be rejoicing that the Government have gone soft, while the law-abiding majority will be horrified.

The Government’s proposal is not only a weak response to antisocial behaviour, but the police and local councils will pay for it themselves. Instead of criminal proceedings being brought by the Crown Prosecution Service, the police will have to bring a civil action in the courts at their own expense.

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

Why, if ASBOs with criminal penalties attached are so successful, do 70% to 80% of teenagers against whom they are made breach them?

[Mr Reed]

I have given the hon. and learned Gentleman examples of how we successfully used ASBOs to drive down antisocial behaviour and offending of that kind, so I do not take his point.

[Dr Huppert]

The hon. Gentleman argues the case for ASBOs passionately, but I am not sure hon. Members agree that they were as effective as he suggests. Has he seen opinion polls such as the one done by Angus Reid last year? Its survey found that only 8% believe that ASBOs have been successful in curbing antisocial behaviour in the UK.

[Mr Reed]

That might be the hon. Gentleman’s view and that of many of his colleagues, but many in the police service and elsewhere do not share it. I do not take that view.

In abolishing ASBOs and replacing them with IPNAs, the Government are not only taking away the power of the police to clamp down effectively on antisocial behaviour, but making the police pay for any action that follows from their hugely diminished budgets. One chief inspector has said, on the record, that the costs of pursuing such action through the civil courts would be in the region of £1,500 on every occasion. Based on last year’s court figures for breaches of ASBOs, the switch to IPNAs will cost councils and police forces another £1.5 million a year. That £1.5 million will be taken from two of the hardest-hit parts of the public sector. If a 20% cut to policing was not bad enough, hitting the police with a £1.5 million additional annual bill just for doing their job in tackling antisocial behaviour is a pretty low and unwelcome blow.

As with all costs, the proposal introduces disincentives. In the Public Bill Committee’s evidence-taking sessions, the chair of the Police Federation, Steve Williams, was asked whether the cost of pursuing an IPNA breach, both in financial and staff resourcing terms, would deter the police from taking action, to which he replied:

“That is a strong possibility. Yes.”—[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 18 June 2013; c. 9, Q11.]

In Committee, Government Members said that IPNAs were necessary because they, unlike ASBOs, would not lead to a criminal record. They believe that criminalising children is wrong. However, breaching an ASBO is the criminal offence, not being subject to one. I must tell Government Members who share those concerns that IPNAs have been roundly criticised for lowering the burden of proof and for their lack of proportionality. Twenty-five organisations, including Liberty, the Children’s Society and Barnardo’s, put their names to a letter to The Times criticising IPNAs for their low burden of proof, and because they do not require “any form of intent”. The letter states:

“Such ill-thought out legislation will sweep up all kinds of non-criminal and non-serious behaviour, wasting police time and clogging up the courts. It threatens to divert resources from genuinely harmful or distressing behaviour, where the police and other services should be focussed”.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I warmly welcome the hon. Gentleman to his new responsibilities. I remember his days as Labour leader of Lambeth very well. I understand that he would rather keep ASBOs. If the criticism he cites from the newspaper letter is right, and if he shares it, will he support the cross-party amendments from the Joint Committee on Human Rights, which would make clear exactly what the standard of proof should be and introduce other protections?

[Mr Reed]

I argue that we should retain ASBOs alongside IPNAs as alternatives for the police and local councils to choose as they believe appropriate in the circumstances.

The IPNA will be available whenever behaviour is found to be likely to cause nuisance or annoyance. I can give examples from my constituency of Croydon North. I have received complaints from residents about children playing and making a noise in the street. They are at liberty to raise their grievances, but there is a question of proportionality. Under the Government’s proposals, we could be left in the farcical situation that children get handed down a court order for playing, while the hardened offender gets let off the hook with no sanction. It is a perverse and muddled policy from Ministers.

19:30

Let me be clear: Labour would not scrap ASBOs if we were in power. We believe that communities deserve better than a watering-down of powers to tackle antisocial behaviour. I would be grateful if the Minister addressed, when he replies to the debate, the growing controversy between the Home Office and the Welsh Government in relation to Government amendment 82. I understand that the Welsh Government have made it clear that they object to what the Government are doing in watering down powers in Wales to deal with antisocial behaviour. It is clear that such a change will require a legislative consent order in the Welsh Assembly, which they are not willing to give. It is not something that we have the time to debate fully today given the constraints in the programme motion, but I am sure the Minister will want to put his position on record before this controversial change reaches the other place.

The Welsh Government are opposed to this change and so are we. We believe the police deserve better than to have one hand tied behind their back when trying to clamp down on offending. Local authorities deserve better than to be hit with new charges for trying to prosecute persistent antisocial behaviour. We believe that behaviour that blights lives demands a tough response. ASBOs give police and councils the ability to clamp down and target offenders: IPNAs will not. Many of my former colleagues who still lead local authorities are horrified at the prospect of losing a power that I was able to use when I led a council to make residents feel safer in their homes and on their streets.

In seeking to weaken powers to deal with antisocial behaviour, the Government appear to have gone soft on crime, but tough on the communities suffering from crime. The case for abolishing ASBOs has not been made by the Government, not at Second Reading, not in Committee and not today. Coalition Members must ask themselves whether they feel comfortable voting in favour of a move away from an effective sanction on persistent antisocial behaviour towards one that, according to numerous organisations, will criminalise ordinary childhood behaviour but leave persistent antisocial offenders laughing.

This proposal is wrong, and that is why we have tabled amendment 96 today. It will keep ASBOs as part of the armoury against antisocial behaviour, empowering our police and our communities to tackle antisocial behaviour, to crack down on yobbish behaviour and to respond effectively to the needs of local communities. Keeping ASBOs is a vital part of keeping our streets safe. A time when 80% of people feel that antisocial behaviour is getting worse is no time to weaken our resolve in tackling it. We must stand foursquare alongside the law-abiding majority. I urge all Members to join us in the Lobby, to stand with their local communities and support amendment 96 this evening.

[Tracey Crouch (Chatham and Aylesford) (Con)]

I welcome my hon. Friend the Minister to his new position and I look forward to working with him in the future on some key issues.

Government amendment 4 would replace the amendments to the Bill that I tabled and that were passed in Committee. I am grateful for Opposition support for the amendments and for the support of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the Under-Secretary of State for Justice, my hon. Friend the Member for North West Cambridgeshire (Mr Vara). It is important to set out in context the reasons why I pressed those amendments to a vote in Committee and the background to the issue.

When we came to discuss the issue of antisocial behaviour and the new injunctions, it was clear that this was a perfect opportunity to talk about the vitally important issue of bullying. It is a key issue for many children and their parents. The statistics speak for themselves. Research now shows that one in three children have experienced bullying, with some suggesting that 70% of young people have at some point experienced some form of bullying. One million kids are being bullied every week, both in and out of school. It is one of the greatest concerns for children as they grow up and their parents. Beat Bullying research found that 44% of suicides among ten to 14-year-olds were explicitly linked to bullying, and at least 20 children every year commit suicide because they are being bullied.

I wish to pay tribute to the work of my hon. Friend the Member for Witham (Priti Patel) who, like me, has met the family of Ayden Olson, who unfortunately committed suicide as a consequence of bullying. Politicians need to take notice of such stories and try to make a difference to them.

I felt that the new injunctions were a really good opportunity to bring bullying back to the forefront of public debate, not least because in the past people have been concerned about criminalising bullies. Under previous legislation, bullying could lead to some sort of criminal sanction. The change to injunctions requiring instead a civil punishment meant this was the perfect opportunity to require them to include a positive requirement as well as the punishment of the injunction.

[Priti Patel (Witham) (Con)]

I am grateful to my hon. Friend for mentioning my constituent, who was involved in a horrific bullying case that led to his suicide. Does she agree that the Bill is a good opportunity to find a way in which to protect vulnerable children and to punish bullies in the right way, as in the case of my constituent that she has highlighted?

[Tracey Crouch]

My hon. Friend makes a very good point, and that is exactly why it is important to add to the Bill the requirements to deal with bullying. We can deal with the bullies as well as the victims, because bullies are often victims of wider bullying, perhaps at home. The positive requirements would enable all sorts of agencies to intervene at an early stage and protect not just the victims, but the bullies themselves.

Bullying is not just face to face any more. Cyber-bullying is a massive problem, and it is certainly something that Ayden experienced. We are seeing increasing numbers of cyber-bullied victims. Some 63% say that the bullying started offline and then continued online. Bullying is not the same as it was when I was at school, when it was people being mean to each other in the playground. It is now persistent bullying on and offline. That is why I am pleased that the Government accepted the need to put bullying back into the guidance on the injunctions. It was originally in the guidance on the 1999 Act that introduced ASBOs. The subsequent review of ASBOs in 2002 also included persistent bullying, but the 2006 guidance—which until recently was the current Home Office guidance—did not mention bullying. I was grateful therefore for the commitment in Committee, from the former Minister, that bullying would be included in the guidance. Having seen an early draft of that, I am content with the guidance that will be issued.

If we are including bullying within the guidance of the injunction, it is logical to give those who primarily have responsibility for dealing with bullying—mainly schools, which unfortunately retain most of the responsibility—the tools to deal with it. That is why in Committee I pressed for head teachers and principals to be given the opportunity to apply for the injunctions. That would have been a permissive power that I thought would be a logical step. Unfortunately, that view is not shared by the teaching unions, all of which I have subsequently consulted, so I am reluctantly resigned to the removal of heads and further education principals from the Bill and I accept Government amendment 4.

I hope that bullying is not taken off the agenda. I hope that it is recognised as an extremely important issue for both children and parents, and that we recognise that further steps need to be taken to protect our children. We must ensure that perpetrators of bullying are dealt with in a way that helps them in their family and in society, and that they can have the positive requirements that the injunctions will give, despite the teachers and principals not applying for them. I am pleased that the Government continue to recognise the importance of bullying by keeping it in the guidance on the injunction, but I am sad that the teachers did not feel that they wanted the power to apply for it.

[John McDonnell (Hayes and Harlington) (Lab)]

I support amendments 158, 176 and 177, which have been tabled by the Joint Committee on Human Rights. I am not sure that they go far enough, but they are what we have before us.

On amendment 158, my anxiety relates to the wording in clause 1. It almost legislates for pre-crimes, which became fashionable a couple of years ago. Hon. Members might recall that, at the time of the royal wedding, Dr Chris Knight and a number of his friends wished to protest against expenditure on the royal wedding. As part of a theatre group, they were going to take papier-mâché representations of the royal family to Buckingham palace on the day of the royal wedding and ceremonially guillotine them. The police arrested Dr Knight and his friends, detaining them—this was eventually legally challenged—on the basis that this was not a crime, but a pre-crime that could, at some point in the future, be designated as a crime.

The Bill, without the relatively minor amendment from the Joint Committee on Human Rights, states:

“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct capable of causing a nuisance”.

That is not conduct causing a nuisance and not a crime that is taking place, but a judgment that there could be a crime in the future. That is a burden of judgment placed on a police officer or others that is almost impossible to determine and will leave us open to legal challenges until the cows come home. I support the amendment because it would at least define “reasonable judgment”, with criteria brought forward when the judgment is exercised. Otherwise, we will potentially be giving officers and others—in particular, the court—extensive powers, with little evidence on which to base the exercise of those powers.

The theme of our concerns in amendment 176 is to ensure that people have the right to express their views and the right to protest. Part 1, by designating certain forms of behaviour as unacceptable, can close down, as pre-crimes, certain activities. Those activities are exemplified by the experience of Dr Chris Knight, who was simply attempting to voice an alternative view. I am grateful to Mr Matthew Varnham for pointing out, in his evidence to the Joint Committee, that, as the Bill currently stands, any spontaneous act of protest could be designated as antisocial behaviour.

Curiously enough, I met Mr Varnham on a protest in Parliament square—people with disabilities were campaigning against work capability assessments. The protest had been applied for in advance and the police had given permission for it to take place. Spontaneous acts will take place at such protests. Groups will break off spontaneously and undertake other forms of protest, because they will have been convinced by the people speaking or by the debate that has taken place that further action needs to take place. As the Bill stands, that form of spontaneous protest would be outlawed and we would be dragging people through the courts simply because they went along to listen to a speech—for example, by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)—were excited by it, and decided that they wanted to do something spontaneous to ensure that his views were echoed in the wider community. At the moment, they would be arrested. God forbid that the right hon. Gentleman would ever incite anyone in that way—not on the basis of his speeches in this place, but perhaps elsewhere.

19:45

If we close down free speech, we will be dragging people through the courts who simply want to exercise their right in a democratic society to say that they disagree. It is often the people who exercise this right to whom Parliament listens. It is as a result of such protest that legislative reform takes place. Most hon. Members have been involved in such campaigns, in particular the Minister, who is our sleeper within the Home Office on matters of this sort. I am anxious that we are giving a breadth of powers to courts and others to prevent freedom of speech. That is why I agree with amendment 176—a relatively mild-mannered amendment —which says that where there is an opportunity for peaceful assembly people should not be dragged before the courts just because they have taken the opportunity to protest spontaneously.

Amendment 177 is also tabled by the Joint Committee on Human Rights. I am extremely anxious about the additional penalty. I was involved in a case in south London where a family was threatened with eviction by, I believe, the London borough of Wandsworth. One member of the family, a young man, was prosecuted for participating in the riots. The family had no role whatever in the riots. I am not sure what their attitude was towards the young man—it never came out in discussions —but they certainly never knew that he was engaged in that behaviour. However, they were all threatened with eviction. Eventually, legal action was threatened and the local authority withdrew. I am worried that when the Bill is passed we will be in a situation where parents and others, who have no control over individual members of their family, will suffer as a result of a crime that they never participated in and, often, did not condone.

The inclusion of the measure in the Bill might have been politically advantageous a couple of years ago, but time has moved on. It is draconian and will result in injustice. As has been said, if a crime is committed by a member of a household in the vicinity of that property, powers already exist to deal with that. Most hon. Members would seek to ensure that the landlord, whether the council or a housing association, implemented the tenancy agreement. Every tenancy agreement I have seen in recent times allows the exercise of powers to seek repossession if necessary when a family, or a visitor, has brought about antisocial behaviour that has affected neighbours and others living in the vicinity. This measure is therefore unnecessary and will have a disproportionate impact on the families of those who may well have been involved in other forms of illegal activity—the riots were given as an example by the Minister when this was debated previously.

The right hon. Member for Bermondsey and Old Southwark said that he will not press any of the amendments to a Division, but I hope we will receive assurances that these issues will be addressed.

[Simon Hughes]

I said that we would not press the amendments to a Division tonight so that we can hear what the Government have to say, but we are committed to the amendments and we are clear that the Bill needs to be amended in the way that we propose. We are not going to back-off. We need a better Bill.

[John McDonnell]

I am hoping that the relationship the right hon. Gentleman has with the Minister is so influential that accommodation can be reached on this matter. If there is not accommodation, I think the amendment will come back at a later stage, because the measure will be seen to be unacceptable. If it did go through, I think it would cause future Governments—here and elsewhere in Europe—immense difficulties as these matters are contested, because the right to free speech is being undermined, as well as the articles of human rights legislation that allow people to enjoy the freedom of being in their own home.

On that basis, I support the amendments and hope we will get a positive response to them from the Minister.

[Dr Huppert]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I agree with much of what he said, particularly about the consequences of the riots, which I shall come back to. Let me start by welcoming the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker) to his new post and by congratulating him on his promotion to Minister of State. His injection of liberalism into this Department will be hugely welcome after decades in which Conservative and Labour Governments have clamped down on civil liberties and taken illiberal approaches wherever possible, playing to populism’s worst flaws. I greatly look forward to him playing his role as Minister of State in this Department.

I disagree with what the hon. Member for Croydon North (Mr Reed) said about the effectiveness of ASBOs. I do not think they were effective at all, but I do think substantial improvements can be made to the Bill. I hope this new Minister will take the opportunity to reflect on our comments and come up with something that takes them all into account.

[Stephen Phillips]

Whether or not ASBOs were effective originally, does my hon. Friend agree that, over time, they have become increasingly less effective? The breach rates are now so significant—up to 90% for most orders—that they have become utterly meaningless.

[Dr Huppert]

I agree; my hon. Friend is right that ASBOs simply do not work, so the idea of continuing them does not make much sense.

[Mr Jim Cunningham (Coventry South) (Lab)]

Before the 1997 election, my right hon. Friend the Member for Coventry North East (Mr Ainsworth) and I campaigned for ASBOs. We did so because when we knocked on doors in certain estates, we often found that elderly people were being terrorised by gangs. In that part of Coventry, those people used steel doors to protect themselves. That is why we need to be careful when we say that ASBOs work or do not work. It depends greatly on the local authority and the police to make ASBOs work. I do not quite buy what the hon. Gentleman said; he had better put something in place that is stronger than ASBOs. Anybody who deals with inner-city problems in Coventry, London and other places knows that people can be terrorised on estates. That is why we need to be very careful about what we do to ASBOs.

[Dr Huppert]

I absolutely accept that there are problems of antisocial behaviour, including in many areas of my constituency. I am sure that all hon. Members’ constituencies are affected by it. The fact that there is an antisocial behaviour problem, however, and the fact that the words “antisocial behaviour” appear in the name of the order does not mean that the one is a solution to the other. I simply do not accept that they have been a very effective mechanism. Much better approaches have been taken by a number of innovative councils. Islington, for example, has tried antisocial behaviour contracts, which have been far more successful and there has been a range of successes elsewhere.

Simplifying the toolkit available is another issue. I welcome the idea of going down from 19 powers to six, which will make it much it much easier for people to find out what the options are. That is another reason why I reject the idea of keeping ASBOs together with IPNAs—injunctions to prevent nuisance and annoyance—which seems to me to be the worst of both worlds. The Bill must be aimed at trying to prevent harm and I hope that we will be able to solve that problem, helping people to get their lives back on track by dealing with the problems, rather than basing things on mediaeval punishment and state-aided revenge.

There are some concerns about the changes to IPNAs. ASBOs dealt with behaviour in

“a manner that caused or was likely to cause harassment, alarm or distress”,

while IPNAs talk about

“conduct capable of causing nuisance or annoyance to any person”.

I certainly hope that my hon. Friend the Minister causes nuisance or annoyance to the Secretary of State; I expect that to be part of a working relationship and I am rather nervous about Secretaries of State being allowed to apply for IPNAs on this basis, if only for health-related issues. There is concern about what is meant by

“conduct capable of causing nuisance or annoyance to any person”.

I suspect we all carry that out on a regular basis or could find people whose conduct could be described in that way. That worries me, as it could be used more broadly. We heard from the Association of Chief Police Officers that IPNAs could stigmatise and criminalise young people unnecessarily, and they also tend to blur the distinction between criminal activity and nuisance.

The report from the Joint Committee on Human Rights—I commend my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for his excellent speech, clarifying detailed and important amendments—says that

“the new…definition of anti-social behaviour is broad and unclear”.

I agree completely; the definition must become rather more defined.

When the Home Affairs Committee carried out pre-legislative scrutiny, we argued that there should be a test of intent or recklessness and that any action taken should be “necessary”. Something in that space is absolutely essential: whether it be through the wording used or by the introduction of a mens rea to try to offset the lower threshold to avoid hitting people with mental health issues, we need something to tighten up the definition of IPNAs without being overly broad.

My right hon. Friend was absolutely right about positive requirements. These are, in principle, very good and very helpful, but the concern was, as we heard in the Select Committee, that the councils would struggle to deliver those positive requirements in some cases. We know that the court

“must receive evidence of suitability and enforceability before a requirement is imposed”,

but not that the positive option will be available to someone. We must check that the positive requirements are doable, which I hope can be confirmed.

We have to deal with the issue of children because a huge number of these IPNAs will be issued to children. They have to be heavily involved in the resolution programme while being viewed as victims. I agree with new clause 33, sponsored by the Joint Committee on Human Rights, as the courts must take into account the best interests of the child as a primary consideration in any of these legal proceedings. I hope that the Minister will focus particularly on that.

[Simon Hughes]

Sometimes, of course, the best interest of the child is to have discipline from outside the family. It is not a one-way street that says that the best interest of the child is always a soft option; it may sometimes be a tougher option when the family is not up to the job.

[Dr Huppert]

My right hon. Friend is absolutely right, highlighting why it is important to have this provision.

Since I first saw the Bill in its pre-legislative form in the Home Affairs Committee, I have been extremely concerned about clause 17. This disapplies section 49 of the Children and Young Persons Act 1933 for both IPNAs and CBOs. It disallows the rules that say that children should not be named and shamed publicly. We should all be extremely alarmed about that because children make errors. They may do something very silly when they are 14. Particularly in today’s age when data is freely available, what they have done could stay with them for the rest of their lives, and there is very little that anybody could do to stop that. That makes it hard for them to rehabilitate, to grow up and to become someone who regrets what they did when they were 14, as so many people will do.

I have heard the Government comment that the intention is to apply this only in rare circumstances, so that judges would not automatically name and shame young people, but do so only where it was an essential part of the order. The guidance must be absolutely crystal clear on this—on minimising the naming and shaming. This should be disapplied only where it is necessary to do so rather than applying it willy-nilly. Otherwise we will breach the UN convention on the rights of the child and a lot of other provisions.

On dispersal powers, my right hon. Friend the Member for Bermondsey and Old Southwark said that in response to the Select Committee report the Government have protected peaceful picketing and public processions, but I think it would be good to go even further to ensure that we do not prevent peaceful protest when we deal with antisocial behaviour. I agree with the amendment on that.

Lastly, I agree with the comments made by my right hon. Friend and the hon. Member for Hayes and Harlington about clause 91, which deals with riot-related offences. These have arisen from the time of the riots and the Prime Minister’s reaction to them. Now, however, we have calmed down and recovered from those awful events, so it is time to reflect on whether we need this special sanction. As right hon. and hon. Members have said, these provisions deal with a situation for which solutions are already available, so we do need to deal with the problem in the way proposed. The JCHR’s report says that it recognises

“the seriousness of riot-related offences”,

but questions whether we need a special rule for riot-related antisocial behaviour, because it looks like

“a punishment rather than a genuine means of preventing harm”.

I therefore hope that the Government will reflect on whether the clause is still needed.

Overall, the Bill has been improved, but I hope it can be improved even further. I am very excited at the role that my hon. Friend the Minister will be able to play. I look forward to hearing his response to the amendments, which I hope, in the fullness of time, he will be able to recommend.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments. Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.

20:00

The hon. Member for Croydon North (Mr Reed) referred to Government amendment 82, but said that time did not permit further discussion of it this evening. With respect, I entirely disagree. The amendment is constitutionally important. I remind the House that it states:

“In Schedule 7 to the Government of Wales Act 2006 (legislative competence of Welsh Assembly), in the list of exceptions in paragraph 12, for ‘Anti-social behaviour orders’ there is substituted ‘Orders to protect people from behaviour that causes or is likely to cause harassment, alarm or distress‘.”.

On the face of it, the amendment does not seem particularly difficult to accept. However, the Government tabled it notwithstanding strong objections raised by both the First Minister of Wales and the Welsh Minister for Local Government and Government Business, and I understand that both gentlemen have written to the Minister for Policing and Criminal Justice and the Secretary of State for Wales expressing grave concern.

The amendment would replace a current exception to the legislative competence of the National Assembly of Wales with respect to antisocial behaviour orders with that new exception. I understand that the Home Office has so far claimed that the amendment to schedule 7 of the Government of Wales Act is merely consequential, and can thus be made without the need for a legislative consent motion in the Assembly. However, the First Minister made it clear in correspondence with relevant Ministers in the House of Commons that the amendment would

“represent a substantive reduction in the Assembly’s legislative competence.”

I consider that to be a matter of constitutional importance that cannot simply be brushed away.

It is surprising, to say the least, that the Government have chosen to act so brazenly, given that in their response to part II of the Commission on Devolution in Wales, they said that the interpretation of this self-same exception was “unclear”—referring to the provision that specifies antisocial behaviour orders as an exception to the Assembly’s legislative competence in respect of local government, namely paragraph 12 of schedule 7 to the Government of Wales Act. The question of how the Government can amend the exception without being certain of its interpretation is beyond at least my understanding, and probably beyond that of many other people. Given that the Government suggested that the Silk commission should look into the matter, it is perverse for them to act in advance of the commission’s recommendations. Furthermore, as they stated in their evidence that they were uncertain about how to interpret the exception, I do not know how they can be so sure that no legislative consent motion is required to amend it.

If the proposed amendment to the exception were passed, all orders to protect individuals from behaviour giving rise to harassment, alarm or distress would be outside the legislative competence of the Welsh National Assembly. The Assembly would consequently be unable to legislate to protect people from such behaviour, even in devolved fields such as education, health and housing. The amendment would represent a substantive alteration in the institution’s competence, and the House should therefore not accept it without first seeking the Assembly’s agreement. I understand that a legislative consent memorandum and motion are to be laid in the Assembly, and that the Welsh Government will not be supporting the motion. I expect that the same will apply to my Plaid Cymru colleagues in the Assembly.

I believe that the amendment should be withdrawn, and that further discussions should take place. In my view, for the Government to railroad through the House a measure about which they are unclear is a constitutional disgrace.

[Stephen Phillips]

I intend to speak to the amendments for which I am at least in part responsible, and which were necessitated by our proceedings in Committee: amendments 1, 17, 45, 46 and 39 to 41. Before I do so, however, let me welcome my hon. Friend the Minister to his new post, and congratulate him on his promotion. Let me also welcome the hon. Member for Croydon North (Mr Reed) to his place on the Front Bench. He has been in the House for only a short time, and I am sure that his promotion is well deserved. No doubt we shall see a great deal more of him in due course.

Having congratulated the hon. Gentleman, however, I am afraid that I must take issue with some of the points that he made this evening. I have to tell him that while there was a lot of hot air about Labour’s great policy of the ASBO, the truth of the matter on the streets—whether in urban or in rural Britain—has been very different. Year on year, ASBOs have been breached in increasing percentages. While the hon. Gentleman, as the former leader of Lambeth council, may well have thought that he had solved problems by securing ASBOs for those who were engaging in antisocial behaviour which was affecting people in the area, the truth is that merely securing the orders achieved precisely nothing. It was their enforcement that was important. As I am sure the Minister will tell us in his response, breach rates now stand at 70%, 80% or 90%.

[Sir Peter Bottomley (Worthing West) (Con)]

Drawing the attention of those on the Opposition Front Bench to the speech that my hon. and learned Friend is making may be to their advantage, as opposed to the advantage of the House. Would it be possible for them to stop talking to each other and listen to my hon. and learned Friend, who is making rather a good speech, mainly about the Opposition spokesmen themselves?

[Stephen Phillips]

I am grateful to my hon. Friend for his intervention, but I fear that it may be counter-productive. I thought I was having rather an easy ride, at least in terms of how my speech will read in Hansard. There has been no intervention so far from the hon. Member for Croydon North, and I suspect that there can be no intervention from him now, because he has not heard anything that I have said. Be that as it may, however, this is not Third Reading, so I shall now deal with the amendments with which the House is being troubled principally as a result of what some would describe as my intransigence in Committee.

Let me begin with amendments 1 and 17. They relate, I am afraid, to words that were inserted in the Bill as a consequence of amendments to clauses 1 and 7, which were suggested by me and were carried in Committee. Clause 1 concerns the general power to grant injunctions. Subsection (5) states:

“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid”

a list of occurrences including, for instance,

“any conflict with the respondent’s religious beliefs”.

In the form in which it was considered in Committee, the Bill made no reference to the fact that those against whom injunctions might be granted might have caring responsibilities, particularly in regard to children. Because I thought that that was an important omission, I proposed—and the Committee agreed, in circumstances that I shall describe in due course—that the court should be required to take into account

“any conflict with the respondent’s caring responsibilities including, in particular, any caring responsibilities for a child”.

That seemed to me—and still seems to me—to be particularly important. Children’s life chances are not fixed, and if an IPNA is granted against their parents, they may be significantly and substantially affected by something for which they are not responsible. In those circumstances, it seems appropriate for the court expressly to take into account caring responsibilities, particularly caring responsibilities for children—and, perhaps, for those who suffer from disabilities. The Government’s position is, as I understand it, that those matters will be taken into account by a court under the general powers in the Bill—that is the assurance I have been given. Indeed, the draft guidance produced last week in accordance with the undertakings given to the Public Bill Committee contains wording that requires those seeking IPNAs—regard will no doubt be paid to this by courts as well—to take into account caring responsibilities.

On that basis, and although the decision has not been easy, I am not minded to oppose the Government’s desire to remove my first attempt at legislation in this House, successful as it was, because the Committee did not divide on the amendment I was proposing to clause 1. My amendment was accepted by the Minister who was then in charge, although there was a reservation when the “like” amendment was proposed to clause 27 that the Government reserved the right to come back to this matter on Report, as they have now done. Be that as it may, I am not going to take further the point that the Committee did not divide. The simple fact is—the Minister needs to make this clear from the Dispatch Box, so that it is clear to courts in due course—the one matter that has to be taken into account when an injunction is granted are the caring responsibilities of those against whom it is to be granted. That addresses amendments 1 and 17.

Government amendments 45 and 46 relate to clause 93 —we are see-sawing around a lot because of how the amendments have been grouped—which deals with community remedies and the community remedy document. As the House will know, every Member having read the Bill in detail, that is a list of community remedies—punishments, if one prefers—that can be handed out, which is drafted by a local policing body. Before it came into Committee, the Bill provided no guidance as to what that document might contain. As I pointed out in Committee, it might have provided that one punishment or remedy that could be handed out was to place someone in the stocks for two or three hours and have oranges hurled at them. Many of our constituents would doubtless think that a very sensible community remedy to be contained in a list of punishments or remedies that might be handed out to those guilty of antisocial behaviour. Obviously, the police and crime commissioners who gave evidence to the Public Bill Committee indicated that some form of guidance would be both desirable and necessary, and that has been taken on board by the Government. I tabled, but did not move, a probing amendment in Committee and it has been picked up by the Government, in that they have tabled amendments 45 and 46 to deal with the possible problem that one might have ended up with rogue and inappropriate remedies. Those measures therefore have my full support and I hope they will also have the support of the House.

I do not wish to detain the House for too long, but I wish to discuss amendments 39 and 40, which relate to clauses 70 and 73 and the time within which those who obtain orders must return to court. The Bill specifies a relatively short period—no doubt the Minister knows precisely what it is—but for the purposes of computing time no account is taken of days when the courts might be closed. I proposed to the relevant Minister somewhat longer periods, because it seemed to me that a problem might arise in respect of bank holidays and public holidays, as the courts would not be able to deal with these matters sufficiently quickly to enable the time limits to be complied with. Some of that has been taken into account, because the Government now propose that Christmas day will be removed from the period of calculation in these clauses, but there remains a difficulty with which the Minister needs to grapple.

I wrote to the Minister for Policing and Criminal Justice and it was suggested that specifying Christmas day was sufficient in this regard, but what about Easter? As we know, it consists of two public holidays, Good Friday and Easter Monday, so we are talking about a four-day period. The Home Office’s response has been, “The courts are able to deal with this because they may open over the weekend.” The Minister needs to reassure the House that that is the position and that there is therefore enough time over the Easter holiday, in particular, for these orders to be dealt with appropriately and for the Bill’s time limits to be addressed.

Government amendment 41 would alter clause 81, which deals with the recovery of costs against the owner of premises where an order is made—I have forgotten which part of the Bill this relates to, but the Minister will doubtless remind me. The Government’s point is that where such an order is made—for example, against a nightclub—the police should be able to recover their costs, and that is absolutely right. However, as I pointed out in Committee, nightclubs or late-night premises often are not owned by the people who occupy the premises where the nuisance occurs. For that reason, we need to include the word “occupier”, as the Government are now proposing. I am pleased that that piece of advice, which I gave for free—that is rare—was accepted. The amendment is therefore sensible and I hope it will command support across the House.

20:15

I will rise to detain the House on Third Reading, but I must say that this is an excellent Bill because it deals with the nonsense of the fact that ASBOs were never enforced and were therefore not doing what the previous Labour Government intended they should do when they were introduced. I will make those points on Third Reading, but with that I will resume my seat and let one of my colleagues address the House.

[Mark Field (Cities of London and Westminster) (Con)]

I thank my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for welcoming me in that way.

I wish to put on the record a few of my concerns about the Bill’s impact on the ability of inner-city local authorities to deal with particular instances of antisocial behaviour; I know that the Minister has been informed about them by the redoubtable cabinet member, Nickie Aiken, from Westminster city council. I shall raise two main areas of concern, to which I would appreciate the Minister giving consideration, and one specific amendment, which I suspect will have to be moved in another place in due course.

First, on powers of arrest and direct access to the criminal justice system, criminal injunctions are, as we all know, more effective than civil injunctions in reducing high-level antisocial behaviour, which damages communities and harms the reputation of central London. The Bill proposes to replace ASBOs on application and ASBOs on conviction with IPNAs and criminal behaviour orders—CBOs—respectively. Breaching a CBO will automatically be a criminal offence, whereas breaching an IPNA will not. Local authorities will be able to apply for an IPNA, but will not be able to apply for a CBO. Therefore, local authorities such as Westminster city council—in a former life this would have applied to the shadow Minister in his role at the London borough of Lambeth—will no longer be able to apply directly for any order or injunction on antisocial individuals or groups that would lead to criminal proceedings in the event of a breach. Instead, local authorities, housing associations, Transport for London and even police chiefs will have to apply separately for an IPNA arrest warrant. Alternatively, local authorities will have to negotiate on a case-by-case basis with the Crown Prosecution Service, which I fear will be operating with increasingly limited resources and capabilities, to place CBOs on antisocial individuals.

[Mr Steve Reed]

At a time when the police have had to suffer a 20% cut in funding, is it appropriate to expect them to shoulder the additional burden of £1.5 million per annum in pursuing breaches of IPNAs?

[Mark Field]

I certainly do not think the figures to which the hon. Gentleman refers reflect the cuts at ground floor level in the work that can be done by our local police. However, all of us appreciate that we are living in financially constrained times and will be doing so for many years to come. Where I suspect I share some of the concerns that he has expressed, not just tonight but during the passage of this Bill, is about a severe weakening of the ability of local authorities, in conjunction with the police, to deal with elements of antisocial behaviour.

[Simon Hughes]

I and a former leader of Lambeth council and others have dealt with these issues for a long time. I have heard the hon. Gentleman’s criticism, I understand it and it will be made from experience. I hope he will tell us what he and Westminster city council cabinet members and officers think might be the right answer. None of us has a perfect solution. We are all trying to find the best combination of tools to have in the box.

[Mark Field]

Naturally, I will try to be constructive. I wholly agree that the lower level nuisance and annoyance behaviour covered by an IPNA does not always warrant the threat of criminal prosecution, which perhaps happened in the past with ASBOs. Among the concerns expressed earlier was that elements of those ASBOs were not being properly enforced. We should rightly look to avoid criminalising the country’s youth wherever possible, but in practice the specific problems that we face with, for example, the very professional, aggressive begging on the streets of Westminster, literally within yards of where we are all sitting tonight, can currently be tackled only through the use of ASBOs on application. We rely heavily on the genuine threat of arrest to protect victims and to deter professional aggressive beggars, who are completely different from the 16-year-old who has got into trouble by graffitiing a bus-stop, for example. We lose that threat under the new proposals.

I want also to speak briefly about the antisocial behaviour committed by people with no fixed UK address. From the experience in Westminster city council area, but also in the City of London area that I represent, I know that tackling antisocial behaviour often involves dealing with organised aggressive begging gangs from across the EU. I fear that we will hear a lot more of this in the months to come. Some individuals travel to the UK in large numbers, with the sole intention of doing a short, but profitable begging stint before returning to their home. These people enter the UK according to their rights as EU citizens, and cannot currently be deported unless they remain in the country for longer than three months or commit a criminal offence. While they are in the UK, and particularly while they are here in central London, they have no fixed address and are completely transient in nature, with many sleeping rough.

Where we have previously dealt with such individuals through ASBOs on application, under the IPNA system the local authority will be able to apply for an arrest warrant only after a breach has occurred, by which time the individual in question may well have left the country, entirely unchallenged, to return at a future date. These people are deliberately off the grid, and we must have some legislation in place that closes this potential loophole and does not actively encourage the gaming of the system.

[Stephen Phillips]

My hon. Friend raises an extremely important point, to which I hope the Minister will respond. Might provisions in other statutes be used, under which, where a crime had been committed, people could be deported without an ASBO having to be made against them?

[Mark Field]

I cannot use ignorance of the law as an excuse, but my hon. and learned Friend knows considerably more about these matters than I do. He makes a relevant point, which is that we do not necessarily have to go entirely down that route. The ASBO legislation and this concurrent legislation is designed to look at the whole issue of antisocial behaviour in a constructive and codified way. The problems to which I have referred apply not simply to the City of Westminster, Southwark or inner-London boroughs. Increasingly, it will become apparent in places such as Manchester, Leeds and Birmingham, so we should look at it fairly urgently. Without being overly negative about the potential open-door arrival of a significant number of people from Romania and Bulgaria, there is no doubt that some of the specific problems in central London in recent months have come disproportionately from groups who have already come to this country from those other EU states. We need to ensure that local authorities are given a chance to take action. As such, I feel strongly that the Bill should be amended better to reflect the circumstances that affect inner-city areas, recognise the particular challenges that are faced in the UK’s major cities and specifically enable a court to grant IPNAs with automatic powers of arrest in a wider variety of circumstances.

This matter will have to be dealt with in amendments in another place. To answer directly the question put by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), I hope that we will have a further amendment to clause 3 to add an additional subsection applicable only in major city centres or other designated areas, which varies the conditions under which a power of arrest attachment can be made to include wording such as “deliberately organised antisocial behaviour”. That will have to be dealt with in our further deliberations on the Bill.

I take this opportunity, Mr Deputy Speaker, to thank you for allowing me to make a brief contribution. I accept that the Minister is aware of some of the specific concerns for Westminster, but I also very much accept that he may wish to deal with this in writing rather than going into it in great detail this evening.

[The Minister of State, Home Department (Norman Baker)]

May I take the opportunity of my first outing in my new capacity to thank Members on both sides of the House for their good wishes and congratulations. I am deeply grateful for the support that has been shown across the House over the last week following my appointment. I look forward to working constructively with Members on both sides of the House as we take this agenda forward.

I am also delighted to see my predecessor, my hon. Friend the Member for Taunton Deane (Mr Browne), in the Chamber. I pay tribute to him for the significant work that he has done as a Home Office Minister. His attention to detail and his commitment have been exemplary, and I look forward to trying to emulate that in my role. I also welcome the hon. Member for Croydon North (Mr Reed) to his new role on behalf of the official Opposition.

I will now deal with the various Government new clauses and amendments. Overwhelmingly, they follow up points raised in Committee, which is a testament to the effectiveness of the scrutiny the Bill underwent upstairs. There are a number of drafting and technical amendments in this large group. So as not to delay the House unduly, I will focus my remarks on the amendments of substance.

The injunction to prevent nuisance and annoyance and the criminal behaviour order are important new powers to deal with individuals who commit antisocial behaviour. Courts will be able to use them both to prevent certain behaviour and to require positive actions—for example, addressing a drug or alcohol problem that is an underlying cause of an individual’s antisocial behaviour.

The Committee agreed non-Government amendments tabled by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) to clauses 1 and 21. These would require a court to avoid any conflict with a person’s caring responsibilities when attaching such conditions. This would be in addition to the duties that were already in the Bill, to ensure that conditions are suitable and enforceable and, so far as practicable, to avoid conflicting with a person’s religious beliefs, work, educational commitments or any other court order imposed on them. As my hon. Friend the Member for Taunton Deane said in Committee, we always expected courts to take account of caring responsibilities, which are clearly a relevant factor in ensuring that conditions are suitable and enforceable, and I repeat that for the benefit of the House.

There is a concern that references to caring responsibilities might weaken the new powers in practice. A number of the agencies that would use and enforce injunctions and orders tell us that there is a real danger that specifically including caring responsibilities in the Bill would make it more difficult to secure appropriate conditions, and that is not in the interests of the victims that these injunctions are designed to protect. I can assure my hon. and learned Friend that we do expect these matters to be taken into account by courts considering injunctions as they relate to caring responsibilities.

My right hon. Friend the Member for Southwark and Bermondsey—I think he has gained a north somewhere; Bermondsey North and Southwark—asked why the words on religious belief were qualified with the phrase “as far as practicable”. I am advised that it is similar to the right to manifest one’s religion set out in article 9 of the convention. The right is qualified and can be limited where necessary and proportionate. For example, it is not necessary for someone who professes to be a Christian to attend church every single day. I hope that is helpful and answers his point.

The Committee also agreed an amendment to clause 4, tabled by my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch), to add head teachers and principals of further education colleges to the list of persons who can apply to a court for an injunction. The intention was to tackle bullying in schools and colleges. I agree that it is vital that powers are in place to address that problem, which blights the lives of too many young people, but we need to get the detail right. She rightly referred to the consultation that has taken place and the responses to it, and I am grateful for her analysis and her decision on how to proceed. However, I want to assure her that we have drafted guidance to explain how the injunction could be used to address bullying, with the help of front-line professionals and the BeatBullying organisation, which has advised us on the matter. I entirely accept her point about online bullying, a matter I was considering only this afternoon in the Home Office. I can assure her that, as far as I am concerned, bullying will not be taken off the agenda.

Amendments 10 to 15 to clause 12 relate to the power to exclude the subject of an injunction from their home. As I have said, the Bill provides for prohibitions to be attached to an injunction. In extreme cases where the antisocial behaviour has involved actual violence or the threat of violence against another person, or where there is a significant risk of harm, someone can be excluded from their home, but only if they live in social housing.

20:30

During the Committee’s consideration of that provision, the hon. Member for Ashfield (Gloria De Piero) and others questioned the distinction between tenants in social housing and those who rent in the private sector or own their homes. The hon. Lady rightly pointed out that, from the victim’s point of view, which housing sector the perpetrator lives in is irrelevant, and there was broad support from the Committee for that view.

Having sought the views of professionals over the summer recess, we agree. If allowing someone access to their home puts the victim at risk of violence or significant harm, powers must be available to stop that. Amendments 10 to 15 therefore extend the power to exclude a person from their home beyond the social housing sector. Of course, that power should be used only exceptionally, which is why it is subject to a high judicial threshold and, in the case of renters in the private sector and owner-occupiers, applications are restricted to state agencies, meaning the police and the local council. I hope that hon. Members will welcome our response on those matters. The Government has listened carefully to the Committee and the experts.

[Simon Hughes]

My hon. Friend has said that his amendments deal with an issue that was clearly controversial: the ability to deal with social housing tenants but not others and the need for a level playing field. I hope that he will not forget to deal with amendment 166 from the Joint Committee on Human Rights, which would add some additional requirements, and that he might be persuaded that they are useful additions.

[Norman Baker]

My right hon. Friend is as eager as he was when he first arrived in this House many years ago. If he will allow me, I will get to the Committee and the amendments he referred to in his opening remarks in due course.

Another important issue raised in Committee relates to the application of the new powers in relation to antisocial behaviour in or around a respondent’s home, this time in relation to the criminal behaviour order. The first condition that must be met before a criminal behaviour order can be made is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender. In Committee the right hon. Member for Delyn (Mr Hanson) tabled an amendment to remove that limitation. My right hon. Friend the Minister for Policing and Criminal Justice made it clear at the time that the criminal behaviour order is not intended as a tool for tackling domestic violence, as other more suitable powers are available for that, and that remains the case. However, having considered the matter further, we recognise that there might be cases where antisocial behaviour is inflicted by one member of a multi-occupancy household on another and where the flexibility to apply for such an order could be helpful. Amendment 16 therefore removes that limitation.

I turn now to the amendments to clause 93, which relate to the community remedy. That welcome initiative gives victims of low-level crime and antisocial behaviour a say in the punishment of offenders out of court. Police and crime commissioners will work with the public and chief constables to compile a menu of out-of-court sanctions that can be used in appropriate cases following consultation with the victim. At the heart of the community remedy is our commitment to empowering victims and communities to say what is right for them. I do not think that that will include use of the stocks, which was referred to earlier.

We have brought forward amendments 45 to 48, which have three elements. The first two will put on the face of the Bill what had always been our expectation: the actions included in the community remedy document must promote public confidence in the use of out-of-court disposals and include an element that is punitive, restorative or rehabilitative. The third change is a power for the Secretary of State to issue guidance to which police and crime commissioners must have regard when preparing a community remedy document. A draft of that forms part of the document for practitioners, which we published last week.

The other Government amendments in the group are largely technical in nature, and I have placed a detailed letter in the Library. I commend the Government amendments to parts 1 to 6 of the Bill to the House.

I turn now to amendment 96, tabled by the shadow Home Secretary and spoken to today by the hon. Member for Croydon North. I am firmly of the view that antisocial behaviour still ruins too many lives and damages too many communities. There are, of course, problems in our inner cities, but there are also problems in our smaller towns, and that concerns all Members of this House.

Up to March 2013, 2.3 million incidents of antisocial behaviour were reported to the police and we know other incidents were reported to councils and social landlords. The previous Government tried—genuinely, I think—to address the problem, but after more than 10 pieces of legislation introduced before 2010 we have been left with a mishmash of powers that is confusing for the public and for the professionals who have to use them, and that is less and less effective. The antisocial behaviour order may have worked well in individual circumstances, but overall it has not worked well. Such orders are too often seen as a badge of honour and, as has been said, over 50% of them have been breached at least once and just over 40% have been breached more than once. Also, the number of orders issued has been falling year on year. People are losing confidence in ASBOs.

[Mr Steve Reed]

Why are the Government seeking to decriminalise antisocial behaviour when 80% of the public feel it is on the rise? How does that help?

[Norman Baker]

I will come on to the powers we are introducing, but the hon. Gentleman spent a lot of his contribution talking about the injunction to prevent nuisance and annoyance, which is one of the tools we are proposing, but we are also proposing a criminal behaviour order, a breach of which is a criminal offence. The CBO is in some ways most akin to the ASBO we are seeking to replace, the injunction being an extra tool.

I know Members on the Opposition Benches are still wedded to ASBOs, despite the evidence, but by any reasonable assessment the statistics show it has been increasingly failing. I want a system that is more effective at tackling antisocial behaviour and has the confidence of the professionals who use it. We know that agencies such as the police, local councils and social landlords are working hard to protect victims and stop antisocial behaviour, but they need the right powers to do this. That is why we are replacing the existing powers with six streamlined, more flexible, quicker and more effective ones to protect the public better.

[Mr Reed]

The Minister talked about trusting the police and local councils and adding more tools to their armoury, so instead of abolishing ASBOs why does he not leave them on the statute book so that police and councils can choose whether it is appropriate to use them or IPNAs, or any of the other tools the Government are providing in this Bill?

[Norman Baker]

First, ASBOs have been increasingly ineffective and have become a badge of honour in some cases; secondly, we want to streamline the powers so they are clear; and, thirdly, we want to use powers that are quick and efficient and that do the job, which is what Members on both sides of the Chamber want: we all want a swift reduction in antisocial behaviour.

As I have said, the main replacements for the ASBO are the injunction under part 1 of the Bill and the criminal behaviour order under part 2. In drawing comparisons with the ASBO, they should be seen together, rather than be taken individually. The injunction is a purely civil remedy. That means it has a lower test than the ASBO on application, coupled with the lower civil standard of proof, so it will be quicker to obtain than the existing order. Front-line professionals will be able to use it as a preventive measure to nip emerging problems in the bud before they escalate into something more serious—which I think is good news for victims— but, crucially, the court could also include “positive requirements” in the order. That is missing from the ASBO arrangements; indeed, that is one of their major flaws. That has meant the focus has been on stopping the behaviour, but not on getting individuals to deal with the underlying drivers of their behaviour. If we are to prevent reoccurrences of bad behaviour, it is very important we address that.

Unlike for the ASBO, breach of the IPNA will not be a criminal offence. This means there is no risk of criminalising under-18s. It will also help to reduce the burden on the police and others in gathering and providing evidence. That does not mean that the injunction has no teeth if it is breached: it does. Adults can be imprisoned for up to two years for breaching the terms of the IPNA, and the court can detain an under-18 if it thinks that, due to the severity or extent of the breach, no other power available to the court is appropriate.

We must not look at the injunction in isolation. It is complemented by the CBO, which will be available to deal with the most serious antisocial behaviour. Breach of a CBO will be a criminal offence with a maximum sentence of five years in prison. That is the same sanction as is available for the breach of an ASBO, but the CBO will be more effective than the ASBO because, like the injunction, it can have positive requirements attached to it to help the offender turn their life around.

These reforms are about putting the victim first and providing streamlined, effective powers for enforcement agencies to do just that. Amendment 96 seeks to retain a discredited regime that has left people across the country suffering from antisocial behaviour. I therefore hope, perhaps optimistically, that the hon. Gentleman will withdraw his amendment in due course.

[Mr Reed]

rose—

[Norman Baker]

If the hon. Gentleman is going to withdraw it, I will gladly give way.

[Mr Reed]

I am not planning to withdraw it. I wonder whether the Minister is dismissing out of hand the views of the organisations that wrote a letter to The Times saying that this is “Ill-thought-out legislation” that will waste police time and clog up the courts. The signatories to that letter include the Standing Committee on Youth Justice, Barnardo’s, Liberty, the National Council for Voluntary Youth Services, JUSTICE, the Children’s Society, the Howard League for Penal Reform, UK Youth, the Prison Reform Trust, and the Children’s Rights Alliance for England. It is disappointing to hear the Minister dismiss the legitimate concerns raised by those well-respected organisations.

[Norman Baker]

I am certainly not dismissing them, and they have been looked at carefully, but it is important to look at the IPNA and the criminal behaviour order in tandem rather than merely concentrate on one of them.

[Stephen Phillips]

Does my hon. Friend agree that rather then relying on letters from the great and the good, perhaps the best thing to do is to rely on the British people? He will no doubt remember that in 2012 Angus Reid conducted a survey in which only 80% of people said they thought that ASBOs had been effective in tackling antisocial behaviour. Is not that why we need to change the regime?

[Norman Baker]

That is exactly right. The shadow Minister said that the recent crime survey showed that 80% of people think that antisocial behaviour is increasing. That suggests to me that the current regime is not working and needs to be replaced by something more efficient.

[Dr Huppert]

The shadow Minister mentioned a list of people who have concerns about IPNAs. I think they would agree with my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) and I that we could look at those concerns, and I am sure that the Minister will do so. They do not support ASBOs, as he suggests; they would like to get rid of ASBOs and have an improved, more sympathetic IPNA.

[Norman Baker]

I am grateful for that intervention, which puts the matter on the record.

The shadow Minister expressed concern about the costs of dealing with IPNAs and the new regime that we propose to introduce. It is worth quoting the chief constable of Thames Valley police, Sarah Thornton, who said:

“So in terms of improving the effectiveness, yes we are going to have to train officers, but I think that is worthwhile…If there is a bit of additional training cost, it really would be well worth it in terms of additional effectiveness in tackling anti-social behaviour locally.”

In other words, the relatively modest amount spent on training on IPNAs will more than repay itself in terms of the results that accrue. It is also worth pointing out that ASBOs were not without their costs either; it would be foolish to think that they were. A cost was involved in dealing with breaches of ASBOs just as there is with anything else. If I remember correctly, the shadow Minister quoted a cost of £1.5 million for breaches of IPNAs—allegedly; I am not quite sure where that figure comes from—but ASBO breaches cost money as well. If he wants to make a fair comparison, he ought to include that in his assessment.

Let me turn to the amendments tabled by my right hon. Friend the Member for Southwark North and Bermondsey—[Interruption.] I am sorry—Bermondsey North and Southwark. I want to call it Southwark and Bermondsey because that it is what it was for so many years. Anyway, I mean my very old friend who moved the amendments. His amendments and those of the hon. Member for Aberavon (Dr Francis) pick up a number of points raised by the Joint Committee on Human Rights, which is of course a very important Committee of this House. I am grateful to the Committee for its detailed scrutiny of the Bill. Taken together, the amendments would introduce additional requirements that professionals and the courts would have to meet in order to use the new powers. While I agree that we must ensure that appropriate safeguards are in place, I believe that those are already built into the Bill and fear that the Committee’s amendments would lose some of the benefits of our reforms in streamlining powers and processes to help victims and empower front-line professionals.

New clause 33 is concerned with the use of injunctions in cases involving children and seeks to place in the Bill a requirement that the interests of the child are treated as a primary consideration when imposing an injunction, any associated conditions or sanctions for a breach. In shaping our reforms, we have, naturally, carefully considered the needs and rights of young people, which are important, so that we get the right balance between enforcement and helping those who commit antisocial behaviour to turn their lives around. I am a little concerned, to be honest, about the use of the word “primary” in new clause 33 with regard to setting that balance.

20:45

The injunction to prevent nuisance and annoyance can be used to deal with a wide range of behaviours, many of which can cause serious harm to victims and communities, but it must not become a means of targeting young people simply for being young people. We have been explicit in the draft guidance to front-line professionals—it was published last week—that in deciding what is “nuisance or annoyance” they must be mindful that the injunction should not be used to stop reasonable, trivial or benign behaviours that have not caused and are not likely to cause harm to victims or communities. For example, children simply playing in a park or on a street, or young people lawfully gathering or socialising in a particular place, may be annoying to some, but those activities are not in themselves antisocial and should not be treated as such.

For cases where an injunction is sought and issued, we have included provisions for consultation so that youth offending teams, as well as any other agencies, such as local authorities and youth charities, are to be involved in the process.

The Bill also requires that the court must hear the views of the relevant youth offending team in breach proceedings. This will also allow the court to hear the views of the young person, in addition to the young person’s views being put forward through a legal representative. Moreover, the Bill explicitly specifies that a court can impose a detention order on a young person only as a very last resort—that is, where it determines that, because of the severity or extent of the breach, no other power available is appropriate.

As I said in response to an earlier amendment, given that the injunction is civil it will not criminalise young people. Indeed, it should prevent criminality, through the use of positive requirements. In these ways the new powers improve on the orders they replace in order to give young people who behave antisocially the best chance of addressing the underlying causes of their antisocial behaviour in the long term, which benefits both the perpetrator and the victims. I emphasise that normal behaviour is not being caught by this. I want to make it very clear that there should be no court orders for playing in the street.

On reporting, I accept there is a balance to be struck. Publicising orders can provide reassurance to victims and communities that action has and will be taken when they report antisocial behaviour. However, I agree that, when deciding to publicise an order against a young person, agencies must be satisfied that doing so is necessary and proportionate, taking into account the likely effect on the young person in question. We have made it clear in the draft guidance that agencies must carefully decide each case on its own facts. That is already the way the courts have approached these provisions and I expect them to be very careful in their use of this particular power.

Amendments 158 to 162 relate to the definitions in respect of the injunction, specifically to the test and the conditions that may be attached to them. I reassure my right hon. Friend that the injunction is an arbitrary or unreasonable power and that in my view it achieves much of what he seeks in his amendments.

The test for issuing an injunction has two stages: an applicant must satisfy the court, first, that an individual has engaged or threatened to engage in conduct causing nuisance or annoyance and, secondly, that it is just and convenient to grant the injunction. The test of “just and convenient” is well known to the courts, being the test that currently applies to the granting of an antisocial behaviour injunction. It is, therefore, supported by several years of case law. As part of the test, in deciding whether to issue an injunction the court must, as a public body bound by the Human Rights Act, have regard to the principles of proportionality and reasonableness before granting an application.

Similarly, any prohibitions or positive requirements granted must be for the purpose of preventing the respondent from engaging in antisocial behaviour, so it would not be possible or right to impose requirements that were completely unrelated to the respondent’s antisocial behaviour. It is important not to import new requirements into the test that could set the threshold too high and delay providing relief to victims and communities.

[John McDonnell]

I wonder whether the Minister could re-read the script that he has just read. He spoke about an individual having

“engaged or threatened to engage in conduct causing nuisance or annoyance”.

The wording in the clause is

“conduct capable of causing nuisance or annoyance”.

That is the problem. That is where judgment enters into it. That is why amendment 158 was tabled. It would put the emphasis on reasonableness in that judgment.

[Norman Baker]

I understand entirely the point that the hon. Gentleman is making. I make no promises, but I have a lot of time for his analysis of the legislation and will consider the point carefully.

I will turn to the amendments that my right hon. Friend has tabled to clause 12, which sets out the limited circumstances in which an injunction may exclude someone from their own home. I agree that the courts must consider whether it is necessary and proportionate to exclude someone from their home, regardless of whether they live in social housing, rent privately or own their own home. However, I am not persuaded that those principles need to be included in the Bill.

We have made it clear in the guidance that not only do we expect that the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate to use the power, taking into account the individual’s article 8 rights. As such, applications should be made only in exceptional cases that meet the high threshold set out in clause 12—that is, where there is a threat of violence or a significant risk of harm.

Several of my right hon. Friend’s amendments to clause 21, which provides for the criminal behaviour order, are similar to those that he tabled in respect of the injunction and are unnecessary for the same reasons. The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders. The amendments to clause 21 are therefore unnecessary.

My right hon. Friend has also tabled an amendment to the new dispersal power to explicitly exempt all peaceful assemblies from its use. I agree that that is an important point, but I would argue that the safeguards that we have built into the legislation will ensure that the dispersal power is used proportionately, while maintaining the flexibility to allow the police to act quickly to protect victims and communities from antisocial behaviour. Where behaviour is lawful and is not causing harassment, alarm or distress, the test for using the dispersal power will not be met. Mere presence in an area is not itself a ground for dispersal, so the power could not be used. The test will be met only if someone’s behaviour is causing or is likely to cause harassment, alarm or distress to members of the public, or crime or disorder in the locality.

[Simon Hughes]

The hon. Member for Hayes and Harlington (John McDonnell) and I both raised that last matter. I understand my hon. Friend’s argument, but I do not see how it is logical to protect picketing and processions in the Bill, as was done in Committee, but not the general right of free assembly. I do not think that the Bill should say that one can do certain things and not face a dispersal order, but not make it clear that one can do other lawful things without facing a dispersal order.

[Norman Baker]

There was particular concern about processions and picketing. That is why they were singled out for mention in the Bill. I have made it plain this evening that where a behaviour is lawful and is not causing harassment, alarm or distress, the test for the use of the dispersal power will not be met. I hope that that gives my right hon. Friend the reassurance that he seeks.

Amendment 177 would remove the ability of landlords in England to seek to evict tenants when they or members of their household have been convicted of an offence at the scene of a riot anywhere in the United Kingdom. The Government believe that clause 91 sends out the strong and important message that if somebody gets involved in a riot, whether it is near their home or not, there may be consequences for their tenancy. However, Members have asked me to reflect on that matter and I will, of course, listen to the House and reflect on it without prejudice to the outcome of that reflection. We will respond fully to the report of the Joint Committee on Human Rights in due course. For now, however, I hope that my right hon. Friend will not press amendment 177 or new clause 33.

The shadow Minister and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who is no longer in his place, spoke about amendment 82, which is a consequential amendment to the Government of Wales Act 2006. Provisions on antisocial behaviour orders are among the exceptions to the legislative competence of the National Assembly for Wales in respect of local government matters. Amendment 82 simply updates that exception to recognise the abolition of the ASBO, thus preserving the status quo with regard to the Assembly’s competence. The UK Government is firmly of the view that amendment 82 is purely consequential upon the abolition of antisocial behaviour orders, so a consent motion is not required. It is also difficult to wait for the outcome of the Silk commission, as a failure to amend the Government of Wales Act now would alter the legislative competence of the National Assembly. Our intention is therefore to preserve the status quo and no more.

[Stephen Phillips]

Is it not a difficulty, though, that even though the amendment may be intended simply to be consequential and to replace the provision relating to the ASBO, it is drawn so broadly that, as Opposition Members have pointed out, it might also have an effect in other areas in which the Assembly currently has legislative competence?

[Norman Baker]

The advice I am getting from officials is very clear—that this is an appropriate conclusion to reach. However, three Members have now raised that matter, and they have done so in quite strident or convinced terms, so I will write to them with a firm conclusion.

[Mr Steve Reed]

We are raising these issues because the Welsh Assembly Government have raised them. Perhaps, rather than driving something through after the UK Government have legal advice that is clearly different from the Welsh Assembly Government’s, the Minister will commit to speaking to the Welsh Assembly Government before taking further steps.

[Norman Baker]

As I understand it, we have spoken to the Welsh Assembly Government, but I think I have made a generous offer in saying that because Members have raised a constitutional point, although I believe the Government’s position is sound—that is the clear advice I am getting from officials—I will ask officials to set that down for me in writing, and I will write to the three Members who have raised the matter this evening. I think that is quite a good offer, if I may say so.

I hope that I have been helpful in responding to the amendments and new clauses that Members have tabled. I think we have a good Bill, and I commend it to the House.

[Simon Hughes]

I am grateful to my hon. Friend the Minister for dealing with all the new clauses and amendments—those that I moved not on my own behalf but on behalf of the Joint Committee on Human Rights; the Opposition Front Benchers’ amendment; and his own Government amendments.

For the record, first, my constituency is called Bermondsey and Old Southwark. I know that it is the fourth formulation of the name in 30 years, but none the less, we have to keep up. Secondly, the Minister is still a good friend, but for him to call me “my very old friend” was not a way to get off on the right foot. He is not that much younger than me, although I accept that there is a gap between us.

On the substance of the new clause and amendments, I am clear that we are right to say no to antisocial behaviour orders, for reasons that Members of all parties have given evidence of. We are also right, as a Government, to introduce two options—a criminal order and a civil order. I hope that when the Bill becomes law, Ministers will produce something that makes clear the benefit to youngsters of not having a criminal record, because they will not have committed a criminal offence.

In relation to certain of the new clauses and amendments, I believe that the Joint Committee and other colleagues will not want to let the matter rest. I refer particularly—I am guessing, because the Committee will form its view collectively—to new clause 33, amendments 158, 165 and 166, and, most importantly, amendments 176 and 178.

[John McDonnell]

The last one is amendment 177. I think the right hon. Gentleman said it was amendment 178. On amendments 176 and 177, I do not think the Minister has gone anywhere near far enough to satisfy the concerns of the Joint Committee or other Members.

[Simon Hughes]

The hon. Gentleman is absolutely right; I meant amendment 177, which is the highest-numbered in the group. I apologise if I said amendment 178 mistakenly. I think the Joint Committee will hold the same view as him.

I hope that my hon. Friend the Minister will realise that by not taking the opportunity of a lifetime to make concessions on the Floor of the House on Report of the first Bill for which he was responsible in the Home Office, he may have lost a reputation that could never have had a parallel. However, he has an opportunity to redeem himself and establish his credentials.

Seriously, however, some of the issues involved are important ones of civil liberties. The Joint Committee thinks so and Members from throughout the House think so, so I hope the Minister will persuade his colleagues that there need to be changes, and that the ones suggested in the new clause and amendments could be among them. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Amendment made: 1, page 2, line 7, leave out paragraph (b). —(Norman Baker.)

Clause 4

Applications for injunctions

Amendments made: 2, page 3, line 38, at end insert—

‘() the Natural Resources Body for Wales,’.

Amendment 3, page 3, line 39, leave out from ‘functions’ to end of line 43 and insert

‘, or a Special Health Authority exercising security management functions on the direction of the Secretary of State, or

() the Welsh Ministers exercising security management functions, or a person or body exercising security management functions on the direction of the Welsh Ministers or under arrangements made between the Welsh Ministers and that person or body.’.

Amendment 4, page 3, line 44, leave out paragraphs (h) and (i).

Amendment 5, page 4, line 1, at end insert—

‘( ) In subsection (1) “security management functions” means—

(a) the Secretary of State’s security management functions within the meaning given by section 195(3) of the National Health Service Act 2006;

(b) the functions of the Welsh Ministers corresponding to those functions.’.—(Norman Baker.)

Clause 8

Arrest without warrant

Amendments made: 6, page 5, line 21, at end insert—

‘(za) a judge of the High Court or a judge of the county court, if the injunction was granted by the High Court;’.

Amendment 7, page 5, line 27, leave out ‘(3)(a)’ and insert ‘(3)(za) or (a)’.—(Norman Baker.)

Clause 9

Issue of arrest warrant

Amendments made: 8, page 5, line 38, at end insert—

‘() a judge of the High Court, if the injunction was granted by the High Court;’.

Amendment 9, page 6, line 3, at end insert—

‘( ) A warrant issued by a judge of the High Court must require the respondent to be brought before that court.’.—(Norman Baker.)

Clause 12

Power to exclude person from home in cases of violence or risk of harm

Amendments made: 10, page 6, line 24, after ‘lives’ insert ‘(“the premises”)’.

Amendment 11, page 6, line 25, leave out paragraph (a).

Amendment 12, page 6, line 27, leave out ‘the local authority or housing provider’ and insert—

(i) a local authority,

(ii) the chief officer of police for the police area that the premises are in, or

(iii) if the premises are owned or managed by a housing provider, that housing provider,’.

Amendment 13, page 6, line 35, leave out ‘local authority or’.

Amendment 14, page 6, line 37, leave out ‘authority or’ and insert ‘housing’.

Amendment 15, page 6, line 40, leave out ‘authority or’ and insert ‘housing’.—(Norman Baker.)

Clause 21

Power to make orders

Amendments made: 16, page 11, leave out line 26 and insert ‘any person’.

Amendment 17, page 12, line 4, leave out paragraph (b).—(Norman Baker.)

Clause 32

Authorisations to use powers under section 33

Amendment made: 18, page 18, line 23, leave out from ‘if’ to first ‘that’ in line 25 and insert ‘satisfied on reasonable grounds’.—(Norman Baker.)

Clause 40

Power to issue notices

Amendment made: 19, page 23, line 1, leave out subsection (5).—(Norman Baker.)

Clause 43

Appeals against notices

Amendments made: 20, page 24, leave out lines 19 to 22.

Amendment 21, page 24, line 31, leave out subsection (3) and insert—

‘(3) While an appeal against a community protection notice is in progress—

(a) a requirement imposed by the notice to stop doing specified things remains in effect, unless the court orders otherwise, but

(b) any other requirement imposed by the notice is of no effect.

For this purpose an appeal is “in progress” until it is finally determined or is withdrawn.’.—(Norman Baker.)

Clause 45

Offence of failing to comply with notice

Amendments made: 22, page 26, line 9, leave out ‘specified in’ and insert ‘alleged to constitute a failure to comply with’.

Amendment 23, page 26, line 11, leave out paragraph (a).

Amendment 24, page 26, line 19, leave out paragraph (a). —(Norman Baker.)

Clause 60

Orders restricting public right of way over highway

Amendment made: 25, page 36, line 7, at end insert—

‘( ) Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so.’.—(Norman Baker.)

Clause 62

Challenging the validity of orders

Amendments made: 26, page 37, line 6, at end insert ‘, or

() a variation of a public spaces protection order.’.

Amendment 27, page 37, line 10, after ‘order’ insert ‘or variation’.

Amendment 28, page 37, line 11, after ‘order’ insert ‘(or by the order as varied)’.

Amendment 29, page 37, line 13, after ‘order’ insert ‘or variation’.

Amendment 30, page 37, line 15, after ‘order’ insert ‘or variation’.

Amendment 31, page 37, line 17, leave out ‘public spaces protection order’ and insert ‘order or variation’.

Amendment 32, page 37, line 17, leave out ‘its prohibitions or requirements’ and insert

‘the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 33, page 37, line 20, after ‘order’ insert ‘or variation’.

Amendment 34, page 37, line 21, after ‘order’ insert

‘(or by the order as varied)’.

Amendment 35, page 37, line 24, leave out from first ‘or’ to end of line and insert

‘variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 36, page 37, line 25, leave out ‘its prohibitions or requirements’ and insert

‘the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 37, page 37, line 29, after ‘order’ insert

‘, or of a variation of a public spaces protection order,’.—(Norman Baker.)

Clause 63

Offence of failing to comply with order

Amendment made: 38, page 38, line 3, at end insert—

‘( ) Consuming alcohol in breach of a public spaces protection order is not an offence under this section (but see section 59).’. —(Norman Baker.)

Clause 70

Duration of closure notices

Amendment made: 39, page 42, line 14, at end insert—

‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)

Clause 73

Power to court to make closure orders

Amendment made: 40, page 44, line 11, at end insert—

‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)

Clause 81

Reimbursement of costs

Amendments made: 41, page 49, line 17, after ‘owner’ insert ‘or occupier’.

Amendment 42, page 49, line 21, at end insert—

‘( ) An order under this section may be made only against a person who has been served with the application for the order.’.

Amendment 43, page 49, line 22, after ‘must’ insert ‘also’.

Amendment 44, page 49, line 26, leave out paragraph (c).—(Norman Baker.)

Clause 93

The community remedy document

Amendments made: 45, page 64, line 3, at end insert—

‘( ) For the purposes of subsection (2), an action is appropriate to be carried out by a person only if it has one or more of the following objects—

(a) assisting in the person’s rehabilitation;

(b) ensuring that the person makes reparation for the behaviour or offence in question;

(c) punishing the person.’.

Amendment 46, page 64, leave out lines 6 to 11 and insert—

‘(a) have regard to the need promote public confidence in the out-of-court disposal process;

(b) have regard to any guidance issued by the Secretary of State about how local policing bodies are to discharge their functions under this section;

(c) carry out the necessary consultation and take account of all views expressed by those consulted.

‘( ) In subsection (3)(c) “the necessary consultation” means—

(a) consultation with the chief officer of police for the area,

(b) consultation with whatever community representatives the local policing body thinks it appropriate to consult, and

(c) whatever other public consultation the local policing body thinks appropriate.’.

Amendment 47, page 64, line 16, at end insert—

‘( ) The Secretary of State must publish any guidance issued under subsection (3)(b).’.

Amendment 48, page 64, line 22, at end insert—

‘“out-of-court disposal process” means the process by which a person is dealt with under section94 or by means of a conditional caution or youth conditional caution.’.—(Norman Baker.)

New Clause 20

Functions of Scottish Ministers under Firearms Acts

‘(1) In section 5 of the Firearms Act 1968 (weapons subject to general prohibition)—

(a) in subsections (1) and (1A), for the words between “commits an offence if,” and “, he has in his possession” there is substituted “without authority”;

(b) in subsection (4), for the words from the beginning to “the Scottish Ministers” there is substituted “An authority shall be subject to conditions specified in it, including such as the Secretary of State or the Scottish Ministers (as appropriate)”;

(c) in subsection (6), for the words before “revoke an authority” there is substituted “The Secretary of State or the Scottish Ministers (as appropriate) may at any time, if they think fit,”.

(2) In section 5A of that Act (exemptions from requirement of authority under section 5)—

(a) in subsections (1), (2)(a), (2)(b), (3), (4), (5), (6) and (7), for “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “or the Scottish Ministers”;

(b) in subsection (6), for the words after “without the authority of the Secretary of State” there is substituted “or the Scottish Ministers (as appropriate)”.

(3) In the Firearms (Amendment) Act 1997—

(a) in sections 2, 3, 4, 5, 6, 7(1) and 8 (exemptions from prohibition on small firearms etc), for “The authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “The authority of the Secretary of State or the Scottish Ministers”;

(b) in section 7(3), for the words “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)”, in the first place where they occur, there is substituted “or the Scottish Ministers”.

(4) In the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750)—

(a) in Schedule 1, in the entry for the Firearms Act 1968, the words “5 and” are omitted;

(b) in Schedule 5, paragraph 3 and paragraph 18(2) to (6), (7)(a) and (8) are omitted.’.—(Damian Green.)

Brought up, and read the First time.

21:00

[Damian Green]

I beg to move, That the clause be read a Second time.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

New clause 4—Firearms’ licensing—

‘(1) The Firearms Act 1968 is amended as follows.

(2) After section 28A (Certificates: supplementary) insert—

“28B Assessing public safety

(1) When assessing the threat to public safety under sections 27, 28, 30A, 30B or 30C the Chief Police Officer must ensure that a range of background checks are performed.

(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the Chief Police Officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.

(3) When assessing public safety within this section the Chief Police Officer must follow any guidance issued by the Secretary of State.”.

(3) Section 113 of the Firearms Act 1968 (power of Secretary of State to alter fees) is amended as follows.

(4) After subsection (1) insert—

“(1A) Before making an order under this section the Secretary of State must consult with chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.”.’.

Government amendments 100 to 105.

[Damian Green]

The purpose of the amendments is to preserve the position of the authority of Scottish Ministers under section 5 of the Firearms Act 1968. The new firearms offence of possession for sale or transfer of any prohibited weapon is committed where the conduct is undertaken

“without the authority of the Secretary of State or the Scottish Ministers”.

The existing functions of the Secretary of State under section 5 were transferred to Scottish Ministers by order under section 63 of the Scotland Act 1998 on devolution. Additional functions under section 5 need to be transferred to Scottish Ministers in relation to new offences created by the Bill. Therefore, new clause 20 revokes the entry in the 1999 order in respect of section 5 of the 1968 Act, and transfers afresh all the Secretary of State’s functions under that section to Scottish Ministers. Amendments 100 to 105 are consequential on new clause 20.

I suspect it will help the House if I respond to new clause 4 before the Opposition deal with it, in that peculiar way we sometimes have. The new clause has been tabled by those on the Opposition Front Bench and relates to two firearms licensing issues that we discussed in Committee and during the Westminster Hall debate initiated by the hon. Member for Easington (Grahame M. Morris) in early September. The first part of the new clause seeks to create a presumption that if an applicant for a firearm meets one of the stated criteria, the police should not grant a licence. The stated criteria include evidence of domestic violence, mental illness, and drug or alcohol abuse.

As I said in Committee, the police already have the ability to take those factors into account when assessing the risk to public safety. I understand that there are particular concerns about domestic violence and abuse, and in response to those, on 31 July we published specific guidance on that issue, providing greater detail on how the police should handle such cases. Just last week, we published a new consolidated guide on firearms licensing law. It is therefore fair to say that the Government have taken on board the many important points that were raised in Committee, and we have been quick to act. As the House will agree, decisions must be made on a case-by-case basis, but guidance is clear that evidence of domestic violence will generally indicate that an application should be refused. That new guidance is being applied now by police forces up and down the country, which I hope will be welcomed across the House.

New clause 4 also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public safety. I consider, however, that guidance must remain just that. It is right that chief officers have discretion to assess applications for firearms in their local area, taking into account the merits of each case and the newly published guide. Chief officers are ultimately responsible for public safety at local level. The Government have sought to make decision making a local responsibility wherever possible. I do not want to undermine that, which is what new clause 4 would do.

We are ensuring that where national action can support local decision making, it does. We are working with the national policing lead for firearms and explosives licensing to ensure that police have a more detailed awareness and understanding of the Home Office guide. The College of Policing will be publishing authorised professional practice on firearms licensing, which will complement and cross-refer to our guidance. In order to assess standards, Her Majesty’s inspectorate of constabulary has carried out a scoping exercise on how firearms licensing is conducted in practice, and we will use the findings from the exercise to drive up the consistency of decision making across the country. Again, that was a legitimate point made in the course of our debates and outside. People wanted greater consistency and, again, we have taken action. As I said, HMIC is now doing that work.

The second part of new clause 4 seeks to introduce a legal requirement for the Secretary of State to consult all chief police officers before revising the licence fees so that they achieve full cost recovery. I reiterate that consultation with the police is integral to the fee-setting process and we accept the need to consider the impact of licensing on police resources. That is why we are introducing a new online licensing system, which cuts the administrative burden of the old paper-based system. We do not need primary legislation to make this happen.

Until we have driven out the inefficiencies in the current paper-based approach to the licensing function, it would not be appropriate to raise the fees fourfold in order to achieve, in one giant step, full cost recovery, which I assume is the purpose of new clause 4. As I have said in other forums, we are considering proposals for an interim fee increase and I will make an announcement on that in due course.

In conclusion, I hope the Opposition Front-Bench team will acknowledge that progress has been made in all the significant areas where criticism of the system could legitimately be made a few months ago. I hope I have persuaded them that further legislation is unnecessary. On the off-chance that I have been unsuccessful in persuading the Opposition Front Bench that new clause 4 is unnecessary, I will have no hesitation in inviting the House to reject it.

[Diana Johnson]

I thank the Minister for setting out his amendments. The Opposition think these are entirely sensible and we support them. However, we depart from the Government on what more needs to be done. That is why I shall speak to new clause 4 tabled by my right hon. Friend the Member for Delyn (Mr Hanson).

The new clause would do three things. First, it calls for a broader range of better background checks to be included as part of the licensing process. Secondly, it would amend the Firearms Act 1968 to introduce an explicit presumption that anyone with a history of domestic violence, drug or alcohol abuse, or mental illness would be prevented from acquiring a firearms licence unless they could provide exceptional evidence to the contrary. Thirdly, it would introduce full cost recovery to ensure that the cost of a licence reflects the cost to the police of processing it.

Why is this needed? There are 146,426 people in the UK who have firearms certificates, covering 498,048 individual firearms, and 570,726 people who have shotgun certificates, covering 1,333,701 individual shotguns. Given that this involves nearly 2 million weapons, we should be thankful that gun crime is a relatively rare phenomenon in the UK. This is an indication that in most cases the licensing system does work and the overwhelming majority of members of the shooting community are very conscious of their responsibilities and of public safety. The problem is that when a gun crime does occur, its effects tend to be catastrophic.

We all know of the horrendous case of Derrick Bird, who killed 12 people, including himself, with a legally owned firearm. In the past five years there have been 43 female gun deaths in Great Britain and in at least 23 of them a legally owned weapon was used. In the past 12 months, 75% of female gun deaths occurred in domestic incidents. In 2009 that figure was 100%.

I want particularly to mention the case of Michael Atherton, to which the Minister referred. Michael Atherton killed his partner Susan McGoldrick, her sister Alison Turnbull, her niece Tanya Turnbull and himself on new year’s day 2012. He did that with a legally owned shotgun. Michael Atherton had three legally owned shotguns despite a history of domestic violence, alcohol abuse and mental health problems. A note attached to Atherton’s first application for a firearms licence in 2006 said:

“Four domestics, last one 24/4/04, was cautioned for assault. Still resides with partner and son and daughter. Would like to refuse, have we sufficient info to refuse re public safety?”

Durham constabulary decided that it could not refuse; in fact, Michael Atherton was allowed to keep his weapons despite the police being called to domestic incidents on another two occasions, including one in which he threatened to blow his head off with his own guns.

Since that tragedy, Alison Turnbull’s son, Bobby Turnbull, has been campaigning for a change in the law to prevent such tragedies from happening again. I pay tribute to Mr Turnbull for the brave and committed way in which he has gone about his campaign. I know that the Minister has met Bobby Turnbull and that the Minister, along with all members of the Public Bill Committee, received a letter from Mr Turnbull supporting Labour’s new clause.

There were multiple police failings in the case, but, as I have pointed out, it was not a one-off and the Durham coroner, the Independent Police Complaints Commission and the Select Committee on Home Affairs have all proposed tougher rules to prevent people with a history of drug or alcohol abuse, mental illness and violence, especially domestic violence, from acquiring firearms. That is why Labour is proposing new clause 4 to enshrine a clear principle that there should be a presumption that anyone with a history of domestic or sexual violence, drug or alcohol problems, or mental illness should not be allowed a firearm. I do not agree with the Minister that that undermines local decision making; it helps and strengthens it.

Never again should the police, looking at the file of a violent offender, think, “I would like to refuse this application but I am not sure whether I can.” Owning a gun is a privilege and not a right. In Committee, a number of hon. Members were very concerned about using mental health in such a way. We have had a number of debates to discuss mental health and the discrimination that might be faced by people who have had mental health problems. I reiterate that the proposal is to set down a presumption that can be rebutted if there is good evidence—for example, if someone had mental health issues many years ago but has not suffered recently. We are also not saying that people with a history of mental illness cannot take part in shooting. They can, but at registered clubs, not with their own guns to which they would have access at home.

The Government claim that the introduction of the new guidance, which the Minister mentioned, addresses that issue. The Opposition question whether that is enough. We know that the Gun Control Network has said:

“The Home Office says it is issuing new Guidance to the Police on Firearms Licensing but the new draft does not change the ethos. There is no statement anywhere that gun ownership is a privilege and not a right.”

The problem is not just whether the new guidance is sufficient but whether guidance could ever be sufficient. Let me share with the House the case of Mr X, in which the police attempted to block a firearms application only for that attempt to be turned down on appeal.

Mr X’s shotgun licence was seized after he was arrested on suspicion of sexual assault against a 17-year-old woman. The police thought the allegation was plausible, but the young woman did not want to appear in court so the charges were dropped. That was not the first allegation against Mr X. Other women had previously made complaints about him. His GP also reported that he was suffering from acute stress. The deputy chief constable of the relevant police force took the decision to revoke Mr X’s shotgun licence. However, despite the deputy chief constable’s taking a day to appear in front of the court, Mr X had his shotgun licence returned by the court. I appreciate that the Minister will not want to comment on individual cases, but I would like him to confirm to the House that the outcome of that case would not have been altered by the new guidance.

The Opposition have tabled new clause 4 because we believe that the firearms licensing system, particularly for shotguns, needs to be more robust to protect the public, but we also recognise that the system could be better. I pay tribute to the work of the British Association for Shooting and Conservation and the constructive way in which it has engaged in the debate on gun licensing. It has considerable expertise and I am grateful for its assistance. The association is right to point out that the firearms licensing system often fails to serve the shooting community. There are big discrepancies between police forces and sometimes big delays. It is not uncommon for a renewal to take many months. There is a general consensus that the system needs to improve.

21:15

I have been impressed with the Association of Chief Police Officers and Chief Constable Andy Marsh on that, but, obviously, there is only so much that ACPO can do. One reform to which the Minister referred was the introduction of the electronic application process. However, my understanding is that only a few forces have signed up, and its effect will therefore be minimal. Will he, in his final comments, say how many police forces have signed up to the new application process? Will he explain what progress is being made to encourage more forces to sign up?

The final part of new clause 4 deals with full-cost recovery and would require the Home Secretary to consult the police before setting a fee, to enable police forces to recoup all the costs they incur in the administration and assessment of firearms licences. Currently, a firearms licence costs just £50 for five years and only £40 for a renewal, but if an application is processed properly it takes up a considerable amount of time, including home visits and background checks, which is not reflected in the cost of the licence. The cost of administering the firearms licence is much higher, and therefore the taxpayer is currently subsidising the firearms licensing system to the tune, the police tell us, of £18 million a year. The cost is particularly high for some forces. The net cost for Thames Valley police was £780,000.

Paragraph 6.2.1 of the Treasury document “Managing Public Money”, which was published by the Chief Secretary to the Treasury to explain the Government’s approach to cost recovery and resource allocation principles, states:

“The standard approach is to set charges to recover full costs. Cost should be calculated on an accruals basis, including overheads, depreciation (eg for start up or improvement costs) and the cost of capital.”

Will the Minister explain whether that paragraph applies to firearms recovery? Can he justify the £18 million a year net subsidy currently provided to the licensing regime when front-line police officer numbers are being cut by 20%? Many police and crime commissioners do not believe that the current situation is acceptable. In the current public spending climate, can the Government justify attacking what they call the “spare room subsidy” while defending the spare gun subsidy?

All hon. Members want improvements in the firearms licensing system, which means that we want investment in infrastructure and new systems, but also that we want the police to conduct more background checks. However, the Government need to start explaining where they want the funds to provide that to come from. Do they want funds to come from general policing budgets—money that could otherwise be keeping bobbies on the beat? Will the Minister explain why, at £50 for five years, the annual cost of a firearms licence is barely a third of the cost of a fishing licence, which costs £27.50 a year, or why it is the equivalent cost of a Criminal Records Bureau check, which costs £44 and requires only a name to be checked against a database?

The Government’s current position is, as the Minister has said, that they will aim to introduce a fee regime under which 50% of the cost is recovered by the police by 2015. Why only 50% and why will that not come into effect until after 2015? It seems fairly shambolic of the Government to introduce a 20% cut in police budgets in 2010 and then to introduce a 50% fee recovery five years later. The Government have claimed that they want to improve the system of background checks associated with a firearms licence, even though they will not commit to putting this in legislation. But can the Minister confirm that he is asking police forces to move resources from front-line policing into licence applications?

On the basis of the case I have put before the House, I would like to test its opinion on this matter, because I think that it has widespread support.

[Steve Rotheram (Liverpool, Walton) (Lab)]

I want to focus my remarks on new clause 4. Part 8 of the Bill deals with firearms, and I broadly welcome the Government’s proposals on sentencing, but I urge them to go further on checks and fees. Following the Dunblane shootings in 1996, in which 16 children and one teacher lost their lives, the Labour Government were right to ban handguns and introduce tough new licensing laws, but it is also right that we, as parliamentarians, periodically review such laws. I therefore commend the Minister for the introduction of these proposals.

Despite the UK having one of the lowest rates of gun deaths in the world, it is no secret that there are pockets of the country in which the criminal use of firearms remains a problem. It is often most notable in large cities, where gangs can plague communities. However, it would be wrong to assume that the sale or transfer of prohibited firearms is the only consideration that Parliament should look to reform.

[Jim Shannon (Strangford) (DUP)]

Does the hon. Gentleman agree that it is not right to pursue legislative change against law-abiding citizens who do not transgress? Would it not be better to focus attention on the lawbreakers instead?

[Steve Rotheram]

I suppose it would depend on the aim of the legislative change. The community that I represent needs a strong message to be sent from this House that the current level of gun crime is unacceptable and that we will give the police every power possible to tackle the blight on our neighbourhoods.

In recent years, we have also seen a rise in the use of firearms, breaching police and public safety, by individuals with track records of domestic violence and mental illness, leading one coroner to call for “root and branch changes” to gun licensing laws. For instance, in the last 12 months, 75% of female gun deaths occurred in domestic incidents, and 53% of female gun deaths in the last five years have involved the use of a legally held weapon, so the improved guidance that the Minister has provided for the police on this issue is to be welcomed.

Such statistics reinforce Labour’s call to ensure that applicants do not have a history of domestic violence or violent conduct as a statutory requirement and not just as a discretionary guideline. While the last Labour Government went a long way to reducing crime and encouraging safer, stronger communities, and introducing tough sentences for gun crimes, too many people still believe the use of guns to be an occupational consequence of their criminal activity. Perhaps the most high-profile incident of gun crime was the appalling murder of 11-year-old schoolboy Rhys Jones in Liverpool in 2007. Sean Mercer was sentenced to life in prison, but what made the incident even more sickening and unpalatable was that Mercer was just 18 years of age. That is why the Government are right to be tough on those who possess prohibited firearms and who sell or transfer them to criminal gangs, which blight neighbourhoods in so many of our major cities.

In my own city, we have tried many innovative approaches to tackling gun crime. Across Merseyside, the police and the local media deserve enormous credit for the campaigns they have undertaken on firearm detection and recovery. This is not just some right-wing tough-on-crime agenda; this is an issue that primarily affects the lives of ordinary people up and down the country, something that Parliament must ensure is reflected in the strength of the laws that govern gun control licensing and in the length of imprisonment. That is why I support clause 100, which seeks to separate the existing offence in the Firearms Act 1968 into two parts, and, in doing so, make it an offence to possess prohibited firearms for sale and transfer, and introduce a maximum penalty of life imprisonment.

It is also right for the clause to increase the maximum penalty for the existing offences of manufacture, sale or transfer, or the purchase or acquisition for sale or transfer, of unauthorised firearms from 10 years to life imprisonment. Speaking with Merseyside police and the governors of local prisons, it is becoming increasingly clear that the tactic deployed by gangs is to use the same firearm for different shootings, but then to redistribute the gun to different members of the gang as and when it is “needed”, so to speak. By making the transfer of a firearm a crime punishable by a life sentence, I am positive that this will act as a stronger deterrent, and that those who ignore this change and are later prosecuted will receive severe custodial sentences.

I support clause 101, which seeks to amend sections 50 and 170 of the Customs and Excise Management Act 1979 to increase the maximum penalty for the unlawful importation of firearms, prohibited under section 5 of the Firearms Act 1968, from 10 years to life imprisonment. This is particularly important for an area such as Liverpool, with our revitalised docks now shipping record tonnage of trade. Inevitably, there will be those who wish to import illegal firearms into the port. The clause sends a strong message to people involved in the smuggling of weapons into Merseyside that if they are caught, this activity will carry a life sentence.

I support clause 102 in its efforts to allow British Transport police officers to carry firearms without requiring an individual certificate, giving them the same powers as officers of other police forces. Many incidences of gun attacks have taken place on public transport in Britain over the years. It is therefore right that we remove this anomaly and give the transport police the powers they require to combat this specific threat.

I am keen for the laws on firearms to be as tough as possible. New clause 4, tabled by the Labour party, will help the Government to achieve this common aim. New clause 4(4) notes the rising cost to police forces of administering the current firearms licensing regime. According to the Minister, more than 170,000 firearms licences and approximately 620,000 shotgun licences have been issued. The current fee for a firearm or a shotgun licence is only £50 for five years, yet the cost to the administrating force is, according to the Gun Control Network, about £200. Considering that the firearms licence averages out at just £10 a year, it is cheaper to own a gun than it is to own a fishing licence. That is absurd. I cannot see why the taxpayer is being asked to subsidise a large number of gun licences that are being issued to and used by a minority of individuals who wish to use guns for recreational sport. I am not aware of any other licensing system that subsidises to that degree.

[Tessa Munt (Wells) (LD)]

In a rural area such as mine, a number of people have to hold firearms licences because they deal with fallen stock. I assume that that would be a legitimate business expense that they could claim to do their job. Putting the firearms costs at the correct level so that the police do not have to ask other taxpayers for some sort of subsidy would be a logical thing to do, and would not cause problems in rural areas where these firearms are needed.

21:30

[Steve Rotheram]

The hon. Lady is absolutely right that if the burden can be transferred to another expense and taken from the police force budgets to subsidise this practice, it could only be good for law enforcement in the country. Last year, Devon and Cornwall police estimated that they spent a total of £1.2 million on completing firearms licence applications, but recouped only £514,000 in fees—phenomenally disproportionate.

Unsurprisingly, I am very much of the opinion that we should implement full cost recovery in the UK. In 2012, the police spent almost £20 million on administering firearms licences. I do not believe that the public would deem that to be a good use of declining police resources. I understand that the Government are in the process of implementing a new fees system, to which the Minister just referred. Unfortunately, it represents a missed opportunity because it will not include a full cost recovery proposal, only an increase in the fees.

I shall finish by sharing with the House the remarks of Lord Justice Openshaw who, in April this year, sentenced seven members of the notorious Croxteth Crew gang to a combined total of 113 years in prison. The Crocky Crew and the Strand gang from Norris Green terrorised parts of the border between my constituency and that of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg). Lord Justice Openshaw’s words paint a picture of how crimes can escalate and how the pattern of crime develops in parallel with continued feelings of social isolation. In all too many cases, criminal activity is a graduated process.

Obviously, only a minority progress to the most serious crimes, but for many it starts as antisocial behaviour and becomes more serious with burglary, violent assault and drug use. Then, before long, it becomes gun crime, punishment shootings and murder. What is more startling is that this pattern is developing quicker than ever before, and the accused are often mere teenagers or predominantly young men in their early 20s when they are caught and prosecuted.

These words should make us all think about how we vote and about the message that this Bill sends to criminals across the country. The judge said of the gang:

“Their days were spent posturing outside…shops dealing drugs. It is as if they belong to some sort of outlaw tribe which has rejected all society’s moral standards and conventions. Their minds are spent towards feuding and prosecuting vendettas against former associates.”

Central to this gang’s dominance was an arsenal of weapons, including several pistols, a double-barrelled shotgun and grenades—in this country! While the fear of crime is much greater than the likelihood of being a victim of crime, firearms are a major problem and we should never be complacent about them. That is why the whole House should support the Government’s reforms and the Opposition amendments. Together, we can redouble our efforts to get guns off our streets.

[Damian Green]

I am grateful to the hon. Member for Liverpool, Walton (Steve Rotheram) for his very thoughtful speech. I am also grateful to Opposition Front Benchers for their support for new clause 20.

It is clear from today’s debate that there are three separate issues to be discussed. There is the illegal use of guns that are held illegally, there is the illegal use of guns that are held legally, and there are the costs associated with guns that are entirely legally held and legally used. The first thing that we must do is ensure that those issues do not become confused with each other. Each of them relates to an extremely serious area of public policy, but the response to each of them needs to be different.

I cannot improve on much of what was said by the hon. Member for Liverpool, Walton about how tough we need to be on the criminal use of illegally held guns. I am grateful to him for his support for clauses 100 and 101 and the amendments to those clauses. They plug loopholes in the existing law, which will hopefully make policing the criminal use of illegally held guns—and illegally distributed guns, to which he rightly referred—less difficult.

As was made clear by the hon. Member for Kingston upon Hull North (Diana Johnson) and by me in my opening remarks, the illegal use of legal guns can lead to terrible tragedies. The Atherton case, which was raised by the hon. Lady, left a huge scar on a family and, indeed, on a whole area, and gave rise to a number of recommendations. In my view, all that divides the two Front Benches on the issue is how effective we consider each other’s proposed methods of dealing with it would be. I shall not weary the House by repeating a speech that I made at the outset of the debate, but we have thought long and hard, and, moreover, have taken significant action since the Committee stage, when we last debated the issue. We published the new firearms guidance at the end of July.

Let me address directly the points that the hon. Lady reasonably made about individual court decisions. As she rightly said, I cannot comment on such decisions, not least in view of the fact that her comments were slightly opaque because, understandably, she could not mention names. I can only reiterate that the new guidance makes it absolutely clear that evidence of domestic violence and abuse will generally indicate that an individual should not be permitted to possess a firearm. It would be difficult to make it clearer that that is the way in which the court should interpret the guidance in the event of an appeal.

One of the other lessons that the Independent Police Complaints Commission and the coroner drew in the Atherton case was that police enforcement needs to be more effective. We can write laws or guidance, but ultimately it is the human beings who execute those laws that make the difference. We are working with the national policing lead for firearms licensing to ensure that police all over the country, in every police force, have a more detailed awareness and understanding of the Home Office guide. As I have said, the College of Policing will publish authorised professional practice on firearms licensing, which will complement and cross-refer to the Home Office guide. In addition, Her Majesty’s inspectorate of constabulary has been conducting a scoping exercise, and will use the evidence from that to decide whether a full firearms licensing inspection should take place.

[Mr Mark Spencer (Sherwood) (Con)]

I hope that, in the course of his deliberations, the Minister will consider some of my constituents who, although they are by no means wealthy, enjoy participating in target practice or clay pigeon shooting. I hope that, as a result of this process, shooting will not become the preserve of the rich.

[Damian Green]

My hon. Friend has made a good point. I shall deal shortly with the third issue that I identified earlier, namely the costs of legally held guns.

[Jim Shannon]

What guarantees or safeguards will be in place for husbands or partners who are firearms holders but who have had malicious allegations made against them? What legal protections will be in place for them when the investigations by the police are completed and the malicious allegations are found to be untrue?

[Damian Green]

The protections are the new guidelines, the new professional standards issued by the college and any recommendations that Her Majesty’s inspectorate of constabulary comes up with from its inspection. Those things will make the whole system more robust, so that the specially trained individual police officers who will be making those investigations will be better trained than ever before to judge whether, for example, an accusation is malicious or whether it is a genuine accusation and there is evidence of domestic violence or abuse and that therefore the individual should not be permitted to possess a firearm. Clearly, what one can expect and demand in such cases is that the individual officer taking the decision is as well trained as possible and is operating to very clear guidelines. That will be the case, and it is the best protection against malicious accusations. Equally, or perhaps more importantly, it protects those who may have been victims of domestic abuse and who may be victims of something worse if a gun is left in the wrong hands. That is what hon. Members on both sides of the debate are seeking and, as I say, it is an argument about practicality.

The third aspect to this debate relates to the costs. The hon. Member for Kingston upon Hull North asked a number of questions, and the answer to her question about e-commerce and the new system is that 24 forces are already signed up to phase 1, which comes into force either this year or next year, with eight other forces involved in phase 2. Thirty-two forces have therefore already agreed to do this, and I know that the national policing lead on firearms is energetically going around the country to ensure that all other forces eventually sign up.

The hon. Lady made the point, quoting the Treasury document, about full cost recovery. It is true that, in principle, full cost recovery within the Treasury’s policy on managing public money does apply to firearms licensing. Of course, we are in discussion with the Treasury on the subject of firearms fees. As I said, we are working towards full cost recovery as our ultimate objective. However, in this period our commitment is to increase the efficiency of the licensing process, as a first step. That is essential to achieve a balance between increased income and increased efficiency. The trick—this is true in all areas of public spending—is not to regard full cost recovery as a given, because we can always bring the costs down. We have already seen in the early pilots of the use of an electronic system for licensing not only that people get a quicker and better service, but that it is considerably cheaper for the police to operate, and so there is a benefit all round. One hon. Member cited a figure of £200 from the Gun Control Network, and I know that the police have come up with a figure of about £190 for full cost recovery, but the figure will be much lower under an e-commerce system. That is to the benefit of the police and of those applying for licences, be it for working purposes, as is the case in many rural parts of the country, or for recreation, which various hon. Members have mentioned.

[Diana Johnson]

Given that such huge cuts are being made to public services these days, does the Minister feel entirely comfortable saying that he thinks it is acceptable for the public purse to subsidise people who want to have a gun and get a gun licence to the tune of £18 million? I understand what he is saying about the future, but the reality today is that lots of police forces are under pressure, so should the full cost recovery not be brought in now, rather than at some future date?

[Damian Green]

The point that I am making is that it is today; the use of an electronic licensing system is available. Some police forces are piloting this already and this will lead to a much more efficient system. As I say, our ultimate aim is full cost recovery. We are moving towards that, but at the same time making sure that the full cost that is recovered is much less than it was before, not just to save the money but because that will lead to a much better and more efficient system.

[Tessa Munt]

Surely, using e-commerce for firearms licensing will still involve police time in investigating in detail the circumstances of an applicant, including a visit to ensure that the premises can hold firearms in a secure and safe fashion, hidden from general view, and certainly from young people and those who are less able. Surely the standard charge of £190 or £200 cannot be reduced that much.

21:45

[Damian Green]

The short answer is that it can. Yes, the police will want to do thorough checks of the premises and so on, but the more that one can reduce the work of processing pieces of paper, which is a lot of what is involved now, with all the attendant inefficiencies and expense for the police, the more the police can do the checks that the hon. Lady and I both want to see happen.

[Tessa Munt]

Can the Minister give me some idea of what the police feel the cost would be if they were to use the e-commerce system? I remind the Minister yet again that the cost of a morning’s shooting—clays—to which my hon. Friend the Member for Sherwood (Mr Spencer) referred is not cheap. This is leisure and recreation.

[Damian Green]

The hon. Lady may be right, but the more people use electronic systems, the more savings there are, so it is quite difficult to put an exact figure on it, particularly with a network system, where the costs will be considerably lower than the figures we have been quoting. I can tell from the hon. Lady’s face that I will not necessarily convince her on this matter, but I hope that I have convinced the House. I urge the House to reject the Opposition’s new clause 4, and I am grateful for the general support for the Government’s new clause.

Question put and agreed to.

New clause 20 accordingly read a Second time, and added to the Bill.

New Clause 4

Firearms’ licensing

‘(1) The Firearms Act 1968 is amended as follows.

(2) After section 28A (Certificates: supplementary) insert—

“28B Assessing public safety

(1) When assessing the threat to public safety under sections 27, 28, 30A, 30B or 30C the Chief Police Officer must ensure that a range of background checks are performed.

(2) Where these checks uncover substantiated evidence of violent conduct, domestic violence, mental illness or drug or alcohol abuse, the presumption is that the Chief Police Officer should refuse the licence application unless exceptional evidence can be brought forward by the applicant as to their suitability to possess a weapon.

(3) When assessing public safety within this section the Chief Police Officer must follow any guidance issued by the Secretary of State.”.

(3) Section 113 of the Firearms Act 1968 (power of Secretary of State to alter fees) is amended as follows.

(4) After subsection (1) insert—

“(1A) Before making an order under this section the Secretary of State must consult with chief police officers to ensure the level of fees collected by the police under sections 32 and 35 are appropriate after considering the costs they incur through the administration and assessment of firearms’ licences made under this Act.”.’.—(Diana Johnson.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

21:48

Division 97

Ayes: 215

---

Labour: 210
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Independent: 1
Alliance: 1
Green Party: 1

Noes: 298

---

Conservative: 246
Liberal Democrat: 45
Democratic Unionist Party: 6
Independent: 1

22:03

Proceedings interrupted (Programme Order, this day).

The Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Clause 100

Offence of possessing firearms for supply etc.

Amendments made: 100, page 71, line 37, leave out ‘follows’ and insert ‘set out in subsections (2) to (6)’.

Amendment 101, page 72, line 2, leave out from ‘without’ to end of line at line 4 and insert ‘authority’.

Amendment 102, page 72, line 12, at end insert—

‘( ) For subsection (3) of that section there is substituted—

(3) In this section “authority” means an authority given in writing by—

(a) the Secretary of State (in or as regards England and Wales), or

(b) the Scottish Ministers (in or as regards Scotland).”’.

Amendment 103, page 72, line 12, at end insert—

‘( ) In section 5A (exemptions from requirement of authority under section 5)—

(a) in subsections (1), (3), (4), (5), (6) and (7), the words “subsection (1A) of” are omitted;

(b) in subsections (1) and (3), for “any prohibited weapon or ammunition” there is substituted “any weapon, ammunition or missile specified in subsection (1A) of that section”.’.

Amendment 104, page 72, line 30, at end insert—

‘( ) In section 1 of the Firearms (Amendment) Act 1997 (extension of section 5 of the 1968 Act to prohibit certain small firearms etc), after subsection (7) there is inserted—

(7A) In sections 2 to 7 below any reference to subsection (1)(aba) of section 5 of the 1968 Act shall include a reference to subsection (2A) of that section as it applies in relation to a firearm specified in subsection (1)(aba) of that section.

(7B) In section 8 below the reference to subsection (1)(aba), (b) or (c) of section 5 of the 1968 Act shall include a reference to subsection (2A) of that section as it applies in relation to any weapon or ammunition specified in subsection (1)(aba), (b) or (c) of that section.”’.—(Damian Green.)

Bill to be further considered tomorrow.

Business without Debate

Monday 14th October 2013 Commons Chamber

Delegated Legislation

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Police

That the draft Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013, which was laid before this House on 8 July, be approved.—(John Penrose.)

Question agreed to.

[Mr Speaker]

Before we come to the petition, I appeal to colleagues who are leaving the Chamber to do so quickly and quietly, displaying the same courtesy to the hon. Member for Brighton, Pavilion (Caroline Lucas) as they could be assured of from her if roles were reversed.

Train Services (Brighton and Hove)

Monday 14th October 2013 Commons Chamber

22:04

[Caroline Lucas (Brighton, Pavilion) (Green)]

This petition has been signed by almost 1,300 individuals, the vast majority of whom are residents of my home city of Brighton and Hove. All are rail users who are united by concerns at the rising cost of rail travel and the poor quality of train services. They are particularly concerned that since privatisation the cost of train travel has risen by 23% in real terms and the cost to the public purse of running the railways has risen by a factor of between two and three times. My constituents want to see the public money invested in the railway used to deliver a better service for passengers, while also achieving wider social and environmental goals and real consideration given to bringing rail back into public ownership.

The petition states:

The Petition of rail users and passengers from Brighton and Hove,

Declares that they are concerned at the extremely high cost of tickets for train services provided by Southern and First Capital Connect, which are often overcrowded and unreliable.

The Petitioners therefore request that the House of Commons urge the Department of Transport to take the necessary steps to ensure rail fares are significantly reduced; to introduce minimum standards for on-train facilities; and to deliver a railway run to a high standard, designed as a public service rather than one primarily run to generate a profit.

And the Petitioners remain, etc.

[P001226]

Pub Company Business Models

Monday 14th October 2013 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(John Penrose.)

22:05

[Greg Mulholland (Leeds North West) (LD)]

Before I start, I want to say that I will take interventions only from Members who have told me that they want to intervene, one of whom is the hon. Member for Easington (Grahame M. Morris), the vice-chair of the all-party save the pub group. Moreover, given that the Secretary of State will be able to say very little in response to the debate because of the current stage of the consultation, I have been told that I can speak for 23 minutes, so I will try to conclude at 10.29 pm.

We have all heard about, and many MPs have experienced first hand, the effects of the leased pub company model and how it has destroyed pub businesses, families and lives, but tonight it is the cold, brutal, harsh economic reality of this model that I am going to expose. I will also expose how not taking the right action now would be a disaster not only for many pubco publicans and the communities that stand to lose their local pubs, but for the recovering UK economy.

Perhaps a better title for my speech would be, “The Great British Pubco Scam”, for this whole sorry saga is a tale of one of the worst examples of reckless, irresponsible capitalism this country has ever seen—a get-rich-quick scheme for a greedy few that has marred lives and closed thousands of pubs and that has caused losses of billions for the UK economy, pension funds and the Treasury.

Turning to the history, the large, leased pubcos are not pub companies in any real sense. They are highly leveraged property companies whose business model is based on charging unreasonably high rents and outrageously high prices for beer to their tenants. This goes back to the beer orders. Prior to 1989, most pubs were tied to the large brewers. It was believed, rightly, that this led to a substantial restriction in the choice of products available to consumers, so the beer orders restricted to 2,000 the number of pubs that could be owned by and tied to a brewer.

The beer orders, however, failed in one spectacular way, which the Campaign for Real Ale and others spotted: they clearly should have prevented any company, not just breweries, from owning and supply-tying more than 2,000 pubs. That was the tragedy and disaster of the beer orders.

A loophole was exploited by many and the anomaly was quickly spotted by bankers, speculators and financial engineers such as Hugh Osmond, Roger Myers and Guy Hands. The result was the formation of a number of so-called pub companies, such as Punch Taverns, Enterprise Inns, Unique Pub Company and Admiral Taverns. Those at the helm had little if any connection to the sector and very little empathy with it. Everyone wanted a piece of the action, and they all piled in to make money, with little interest in the pubs, the people who ran them, the communities that used them or the wider economic impact.

Aided by investment bankers, pub company bosses produced financial models and projections that assumed practically perpetual growth in the rents and beer prices that they could charge their captive market of tied licensees, who would be unable to resist such aggressive pricing strategies. Through securitisation and more conventional debt, large sums of money were raised to acquire a large number of pubs from brewers who were obliged to dispose of them and, after that, from other pub companies.

Seeing that they were on to a good thing, the pubcos, led by Punch, went on an acquisition spree, buying up pubs for more than their actual value, simply to inflate their share value artificially. In valuation terms, the same yield or multiple was applied to inflate portfolio values, with hypothetical wet rents being used, rather than actual numbers. To maintain the wet rent at as high a level as possible, beer prices have been increased year on year, substantially above the rate of inflation. So as to inflate artificially the pub and estate values, and then to borrow vast sums against that imaginary valuation, the companies were adding to the dry rents the profits achieved by wholesaling beer to create an overall rent. That led to the values being falsely inflated.

During the period of growth, Punch Taverns and Enterprise Inns found themselves in the FTSE 100 as their share prices peaked. However, it was not to last for long. From 2007, with the credit boom in fever pitch, retail investors kept piling in. Even though a prudent chief executive officer must surely have seen the writing on the wall, Ted Tuppen at Enterprise Inns was handing himself dividends and using company funds to buy back shares, including his own, at a rather fuller price. A quick look at the share prices of Enterprise and Punch, and to some extent even Greene King and Marston’s leased operations, reveals the profile of a classic pump-and-dump operation, with a huge surge like a giant heartbeat, then failure and the resultant flat line.

With positive broker comments and heavy financial public relations, the insiders exited and the gullible lost money. Pension funds, choosing to believe the hype from the companies and the endless positive messages of house brokers, stayed in and lost fortunes for pensioners. Naive retail investors did the same. The winners were the insiders and the directors; the losers were the publicans, their communities and the pensioners whose funds unwisely left money in the pubcos.

[Grahame M. Morris (Easington) (Lab)]

I pay tribute to the excellent work that the hon. Gentleman, who is my hon. Friend in this matter, has done with the all-party save the pub group. I associate myself and the Labour party—not only the Back Benches, but the Front Bench—with the excellent case that he is putting forward on the completely unsustainable nature of the pubco model, which exposes licensees to the double whammy of inflated pub prices and excessive rents.

[Greg Mulholland]

I thank the hon. Gentleman and hon. Members from all parts of the House who have seen this practice for what it is and supported the response to it.

Favoured funds were the providers of much of the debt funding. At the peak of the madness, as much as £600 million a year was being removed from UK pubs and paid, much of it overseas, to hedge funds in the US and other debt providers. I wonder whether the Secretary of State and his officials were aware of that.

Famously, Larry Robbins of the $7-billion fund Glenview Capital Management described Punch Taverns’ hapless tenants as the source of ever more money for Punch and his fund. David Einhorn, the wealthy manager of Greenlight Capital in New York, was also a heavy investor in pubcos. Following a taped conversation between him, a broker and Punch Taverns’ CEO, Giles Thorley, it became apparent that his track was a little too inside and he was fined £7.2 million by the Financial Services Authority. I wonder whether the Secretary of State knew about that.

When someone has seen the writing on the wall and wants to get out with their bag of swag, what do they do? They find somebody else to hand it on to. Giles Thorley was the perfect foil for Guy Hands, who seduced him into running Unique Pub Company just as it was being sold to Enterprise. Hugh Osmond, also by now looking for the exit door, poached Thorley to Punch Taverns. As the share price was pumped in 2010, Giles Thorley, clearly seeing the writing on the wall, sold out and made his fortune, albeit a smaller one than those of his mentors. Mr Tuppen at Enterprise, with a lacklustre career prior to forming his pubco, could not believe his luck as he was courted by the City with seemingly unlimited money to buy more and more pubs.

With the securitised money washing through the pubcos, all that was left was a largely debt-ridden sector paying interest rates of up to 8.5% on billions of pounds. As we all know, the money was to be made by squeezing the life out of hard-pressed tied tenants, sucking others into the scam and then, when all else failed, closing and selling off run-down pubs for alternative use.

A key part of the scam was mis-selling, which the other vice-chair of the all-party save the pub group, my hon. Friend the Member for Northampton South (Mr Binley), has previously raised. Enterprise Inns, for example, conducted an in-house study of sales, profits and costs in a sample of its estate, and despite establishing a much higher level of costs from that quoted to tenants, it maintained utterly unrealistic low levels of business overheads that barely allowed for repair and maintenance, let alone staffing, training and business promotion. As we know, many tenants took on unsustainable businesses, losing their entire life savings before inevitable business failure. The situation was akin to loan sharks, with the misleading presentation of the proposition, attractive terms of entry and often initial discounts, but without the cold, hard, unsustainable reality and the wholly unrealistic future that went with signing up being spelled out.

Then there was the role of valuers. It is odd that Humberts was the chosen valuer of both large pub companies, Punch and Enterprise. It also helps them to have their own man inside the Royal Institution of Chartered Surveyors writing the valuation guidelines for the properties in their sector so that they can be applied in their favour. Yes, it is Enterprise Inns’ very own national rent controller, Rob May, who has been overseeing the process since 2005. At one time he was the chairman of the valuation party. Despite the obvious conflict of interest, the interpretation of the new guidance is still controlled by the group that Mr May participates in. Select Committees and the Government have identified that there was confusion in the interpretation and application of the new RICS guidance, and despite requests even from the Department for Business, Innovation and Skills, RICS has simply referred the matter to Mr May’s group. Did the Secretary of State and his officials know that?

Then there was another wheeze, involving rating. Knowing that most tied pubs turn over little money, would it not be advantageous for the pubcos to have a system of rating where all the usual rules were ignored in favour of a special scheme whereby the rates paid by a company’s tenants were artificially lowered using a scale based on turnover rather than the usual method of looking at rent? Of course, if the company’s tenants are paying lower rates, it can increase the rental burden at rent reviews and, of course, increase the capital value of its pub estate. Just £5,000 per annum per pub amounts to £25 million per annum across 5,000 pubs, and the capital value increases by up to £300 million all of a sudden. That was all helped, unwittingly, by the taxpayer. Did the Secretary of State and his officials know that?

Then there was the issue of full repairing and insuring leases. Suddenly, the company that owned a building did not have to pay anything for maintenance, inside or out—it was like a tenant renting a house or flat and then having to maintain the entire property. Of course, the pubco was heavily protected to ensure that it had as good an investment as possible by passing on as many costs as possible to the tenant.

The key to the scam, of course, is double-overcharging. The pubcos derive two rents. The dry rent is the fixed income for the property, the wet rent the large profit derived from selling beer to the tenant at inflated prices. In the recent Association of Licensed Multiple Retailers survey, we see that far from being lower than open-market free-of-tie rents, the dry rents alone that pubcos charge are higher. That is a de facto abuse of the tie. Worse than that, in a tied pub, with wet rent added to dry, rather than the usual rent of 10% of turnover, the aggregate rent is fast approaching 20% of sales, hence the incredibly derisory income derived by many tenants.

Perhaps the most suspicious part is the so-called wholesale price of beer—an artificial instrument maintained to ensure that excessive profits, over and above those that can be gained in the open market, are available to companies that own pubs. No one in the free trade pays the full wholesale price, or anywhere near that amount, for any beer, and only unfortunate tied publicans are subjected to that excessive pricing. Far from being a discount, in reality tied tenants are paying more than any right hon. and hon. Member would by going to their local brewery.

To give one stark example, in six years an 11-gallon keg of Foster’s from Enterprise has gone up from £107, excluding VAT, to £151—an increase of £44. Data from wholesalers show that in the free trade that keg cost £77 six years ago and £87 today—an increase of £10. The same duty rates, and the same increased manufacturing costs and overheads apply, yet the price increase to a tied tenant has been nearly four and a half times that of a free-of-tie publican over six years for the same product. If that is not a manipulation of pricing, I do not know what is.

We then come to the enforcers—Brulines, or Vianet as it was recently rebranded, knowing its already damaged reputation. It is pertinent to note that the company was started by Derrick Collin, who was convicted for blackmail and conspiracy in 1986. He devised the flow monitoring technology that was to become Brulines. It is a rudimentary system, but instead of being used simply to check flow as a helpful tool, it is used, through intimidation, to threaten tenants and provide calculations for “buying-out fines.” It has not been tested in situ by any formal agency, and is shown to be highly inaccurate in several reports by experts, including one from a trading standards officer. It could be considered to be in use in trade, but at the moment it is not regulated under the Weights and Measures Act 1986. It has no CE mark, no other certification, and the lease documentation signed by lessees means that if they are threatened by such fines, they risk legal costs of their own to defend those charges. To be clear, no independent expert evidence as to the accuracy of the system has yet been heard in court, and I ask the Secretary of State to look at the issue again.

The situation is clearly a disaster for tied publicans, but also for the UK economy. Look at the collapse of share prices: 95%, 98%—perhaps only an 80% collapse from Enterprise. Punch Taverns and Enterprise Inns have arguably been in a form of passive administration for several years. They are zombie companies that do not pay dividends, and they have no growth plan or export potential. They just about pay the cost of their debt by selling off their assets. That asset stripping is happening now—slash and burn. Enterprise Inns and Punch Taverns, the two largest pubcos, collectively disposed of more than 5,000 pubs between 2008 and 2012—one third of all of their pubs. No other part of the sector has experienced anything like that level of disposal and failure.

A common technique used to generate even more profit is the use of “churn”, which involves forcing the failure of tenants over time and replacing them periodically. That enables the pub company to retain rent deposits, pursue personal guarantees, take new deposits and ingoing costs, and perhaps charge a higher rent over time to the new tenant. Data leaked from Punch in 2009 and released to the media showed that the pub company “churns” as much as 25% of its entire estate in any one year, and that average individual tenants might be expected to last no longer than three years in their pub. Enterprise Inns’ 2013 interim results reveal that of its 5,720 pub tenants, 1,463—more than 25%—have been in occupation for less than a year.

Such a situation is also bad for the taxpayer. The taxpayer-owned Lloyds bank had to write off some £600 million when Admiral Taverns went into administration in 2010. Similarly, Royal Bank of Scotland acquired just over 1,000 pubs in 1999 and sold them at a loss to Heineken—effectively the same people from whom it had bought them—in 2011.

The situation is clearly bad for the economy, but is it bad for everyone? The obvious and sad answer is no. Despite the share prices tumbling, pubco bosses still managed to find the resources to pay themselves astonishing returns. Last year Ted Tuppen of Enterprise Inns received a basic salary of £640,000, as well as a bonus of £329,000 and pension contributions of £160,000, resulting in his taking home more than £1 million. This is clear and grotesque reward for failure—something that my right hon. Friend said he would stamp down on.

There is some very worrying lobbying going on. There is baseless, hysterical and thoroughly dishonest scaremongering to try to persuade my right hon. Friend and the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), and also the officials. Much of that, I am glad to say, has been dealt with through the Fair Deal For Your Local “Setting the Record Straight” report. I gently remind the House that in its report of 2008-09 the Business, Innovation and Skills Committee commented about pub company bosses that

“in evidence to us both Mr Thorley of Punch and Mr Tuppen and Mr Townsend of Enterprise Inns made assertions which, on investigation, proved to give a partial picture, or on one occasion were positively false.”

Even this year we have had the chief executive of the so-called British Beer and Pub Association—in truth, the big brewers and pubcos association—making two factually incorrect statements when appearing before the Committee on 11 June, and then saying on “Sunday Politics South East” on 9 June that the Government had their own figures on pub closures, which they clearly do not.

The solution is clear and it is what people are afraid of. The solution suggested by the Select Committee is for tenants and lessees of the large companies—I stress that this applies only to large companies; it would not apply to family brewers—to have the option to pay an independently assessed market rent only. That is the only way to stop the endemic overcharging. I was delighted and the House was delighted, having made clear its views in a unanimous motion, that the Secretary of State made clear the Government commitment when he said in a letter to the Chair of the Select Committee in January that

“the Government's proposals would address abuses of the tie, through enshrining the principle that ‘a tied licensee should be no worse off than a free of tie licensee’ in the Code”.

The only way to do that is the Select Committee solution—the market rent-only option, also known as the free-of-tie option with open market rent review. There is a positive future with that—increased certainty and confidence for brewers, more jobs and investment in brewers, good news for smaller brewers, who would have greater access to market, and good news for consumers, who would see a greater choice of beer and a cheaper pint in pubcos. I ask my right hon. Friend to look out for the new research coming from the Federation of Small Businesses tomorrow, and I ask him to sit down with his officials and look at that before he makes any final decisions.

The market rent only option would save pubs because it would stop the kind of asset stripping that is going on around the country. The provisions of tied leases and tenancies enable pubcos and others to circumvent the Landlord and Tenant Act 1954 security of tenure protection. When sites are very valuable for development, pub companies are changing terms and applying pressure to drive tenants out. I can show my right hon. Friend cases—there are some close to him—where that is clearly happening.

In conclusion, pubs will continue to be viable businesses, despite changing times, but they will no longer be a guaranteed source of over-rentalisation for property companies, whether they brew or not. That model is gone. It is nearly dead, but without the market rent only option it will take down thousands more pubs in its death throes. The great British pubco scam has done huge damage to pubs and the UK economy, but as long as the overcharging is allowed to continue, this will happen. I gently point my right hon. Friend, for whom I have great respect, in the direction of his 2010 speech about “spivs and gamblers” and the reckless behaviour that brought the UK banking sector to its knees. Having heard what I have reported tonight, can anyone think that that is not a perfect description of what has happened in this sector?

There is clear support for reform in the House, as 81 coalition MPs have signed the early-day motion or expressed their support for the Fair Deal For Your Local campaign, which is calling for a market rent-only option. My right hon. Friend can be clear that we can and would win a vote in this House. The hon. Member for Chesterfield (Toby Perkins) has indicated that it would be assured of the support of the Opposition and we would also have the support of the hon. Member for Brighton, Pavilion (Caroline Lucas), who represents the Green party.

In 1969, a Monopolies Commission report recommended the market rent-only option. It was needed then and it is certainly needed now. I believe that my right hon. Friend can and will be the person who has the courage finally to do it. The choice for him and the Government is stark, although they could ignore the campaign, not introduce a market rent-only option, let things continue and be blamed for the continual asset-stripping of pubs and the destruction of other small businesses. We need action now not just to assist thousands of publicans and save pubs but to provide a boost to local economies and to the UK economy.

22:31

[The Secretary of State for Business, Innovation and Skills (Vince Cable)]

I thank my hon. Friend the Member for Leeds North West (Greg Mulholland) for raising the issue and for his dedication to promoting, encouraging and supporting a fair and flourishing pub sector. He has a deep knowledge of the subject that was much on display this evening and I think that it is fair to say that he has played an enormous and disproportionate role in getting the policy debate moving in this House. That took us to the recent consultation on statutory regulation. He knows and acknowledged that we shall soon respond to the consultation, and I cannot say more about it other than that I will not be intimidated by scaremongering, which seems to be his fear.

My hon. Friend has left me approximately five minutes in which to respond, so I will not be able to say a great deal. He acknowledged that he did not expect a reply on the subject of the consultation, but he used the opportunity to develop his criticism of the business model of the pubcos in general. Although many of the abuses he described were highly specific, they are not unique to the pubco industry. We saw problems of over-leverage in a whole set of industries, notably banking, and the horrible consequences of that. He has provided examples of another sector where those problems occurred in a different way.

My hon. Friend asked a number of questions. I cannot answer them all in the handful of minutes I have available, but he asked specifically about the evidence on the rent of tied licensees set against that of those who are untied. We are all aware of the ALMR benchmarking survey that shows that for the second year running tied pub rent has exceeded the free-of-tie rent as a proportion of turnover. Tied rents as a proportion of turnover were 10.7% whereas for the free-of-tie rent the figure was 9%. He has asked me to check a number of other specific points and we will certainly do that.

Let me make a few general points to round up the debate. There is consensus on both sides of the House that although this is an important industry that makes a significant contribution to the economy, it is also an area in which many of the publicans who communicate with us have a strong sense of facing hardship, adversity and unfairness. I acknowledge the work of the Select Committee on Business, Innovation and Skills over the years as well as that of the all-party save the pub group in raising awareness of the issue.

Just last week—I think that this is the report my hon. Friend described as coming out tomorrow—the Fair Deal For Your Local campaign, backed by the Campaign for Real Ale, the Federation of Small Businesses, the GMB union and various tenants’ groups published “Setting the record straight”. That report brought together much of the material in this area. We have had four Select Committee reports on whether the tied model causes an imbalance in bargaining power and we have received a vast amount of correspondence from tenants. We acknowledge—this is the common ground—that the problems faced by tenants are real and demand our attention.

In the short time I have, I should stress that the tied business model, as opposed to abuses of it in recent years, is probably not the main source of the problems in the industry. I am not sure how far my hon. Friend agrees with that, but the number of pubs has been declining for three decades at least—there were 70,000 in 1980 and there are 50,000 today. Neither the 1989 beer orders nor the pub company consolidation, which is the source of the problems he describes, brought about a major change in the rate of decline. There have been bigger and deeper problems in the commercial property market, in which over-leverage was a common feature.

However, I appreciate that his central point—this is the concern of hon. Members on both sides of the House—is not the rate of closures, but the low incomes prevalent in the tied centre and the impact they have. The question throughout is how we deal with those abuses. Initially, we hoped that self-regulation would work. As we know, there was an agreement between the pubcos and tenant groups in November 2011. The pubs independent conciliation and arbitration service and an industry framework code were introduced, but they have not gone far enough, and the problems persist.

There is plenty of evidence of the ongoing hardship faced by individual publicans. Work commissioned by CAMRA suggests that, based on self-reported income, 57% of tied tenants earn less than £10,000 a year, compared with—

22:36

House adjourned without Question put (Standing Order No. 9(7)).

Petition

Monday 14th October 2013 Petitions

Monday 14 October 2013

Evidence Accepted in Family Courts

Monday 14th October 2013 Petitions

The Petition of an interpreter working in England,

Declares that the interpreter works in family court proceedings translating for families who speak Czech and Slovak.

She has been shocked at the way in which a judge was partial in proceedings and the evidence that was accepted which would never be accepted anywhere else in courts. There was a social worker who was interrogated by both sides who was asked whether the grandmother behaved appropriately with her daughter in the contact centre and the social worker said “yes she did”. The next question was whether she would behave appropriately in her own house. The social worker said that she could not say that she would and hence the court decided not to place the child with the grandmother. Furthermore the grandparents were criticised for approaching the media in England.

In a second case the family had signed documentation that they did not understand thereby giving their children to the local authority and this documentation was used to get the children adopted.

In other cases really flimsy evidence is accepted and parents are misled by their legal advisors into accepting the case against them because they may then get the children returned. The parents then find that the children are adopted using the fact that the parents had accepted the case against them as evidence.

Additionally a mother was forced to sign documents disowning Slovak nationality for her child on the basis that otherwise she would be imprisoned.

The Petitioners therefore request that the House of Commons establishes an inquiry into the quality of evidence accepted in family court proceedings.

And the Petitioners remain, etc.—[Presented by John Hemming .]

[P001228]

Written Statements

Monday 14th October 2013 Written Statements

Monday 14 October 2013

Double Taxation Agreement (Isle of Man)

Monday 14th October 2013 Written Statements

[The Exchequer Secretary to the Treasury (Mr David Gauke)]

An arrangement comprising an exchange of letters amending the 1955 arrangement with the Isle of Man was signed on 10 October 2013 to permit automatic exchange of information. At the same time an agreement was also signed to improve international tax compliance which sets out the precise details of the information which will be automatically exchanged.

The text of the new arrangement and the agreement has been deposited in the Libraries of both Houses and will be made available on HM Revenue and Customs’ website. The text of the arrangement will be scheduled to a draft Order in Council and laid before the House of Commons in due course.

Regional Growth Fund (Update)

Monday 14th October 2013 Written Statements

[The Minister of State, Department for Business, Innovation and Skills (Michael Fallon)]

On 11 October my right hon. Friend the Deputy Prime Minister opened round 5 of the regional growth fund (RGF).

Under round 5 up to £300 million will be available to bidders from the private sector seeking support in order to fund high-quality projects and programmes. Round 5 will remain open until 9 December 2013.

The objectives of the RGF remain to stimulate private sector investment and to create sustainable private sector employment, particularly in areas dependent on the public sector. The eligibility requirements for round 5 have been updated to reflect our expectation that growth deals and the local growth fund are now the route for local enterprise partnerships (LEPs) to secure funding to pursue their business support priorities. In recognition of this, BIS will be making available an additional £100 million for the local growth fund in the period 2015-17. This will top up the local growth fund, already confirmed at the spending round as worth at least £2 billion for the whole of the next Parliament, with additional flexible funding to support the priorities identified by LEPs in their strategic economic plans. The local growth fund underlines the Government’s commitment to the devolution of economic powers from central Government to local areas, putting business-led LEPs, working with their local partners, at the heart of promoting growth. Hence round 5 is designed for bids clearly led by the private sector, although we hope that LEPs will still play a role in endorsing private sector bids from their areas.

Briefing events on RGF round 5 will be held across the country. The first of these was held in Newcastle on 11 October and more will follow across all the regions before the round closes. The events feature a presentation on how to make a successful bid and offer attendees the opportunity to ask questions. Businesses who wish to bid will also have the chance to discuss their application through an expression of interest meeting with a bid appraisal specialist from the Department for Business, Innovation and Skills (BIS).

The dates and venues for the briefing events and expression of interest events are as follows:

Jimmy Savile (Investigations Update)

Monday 14th October 2013 Written Statements

[The Secretary of State for Health (Mr Jeremy Hunt)]

I wish to provide an update on progress with the Jimmy Savile investigations relating to national health service institutions.

There are currently three main investigations under way—Broadmoor, Stoke Mandeville and Leeds General Infirmary. Kate Lampard is providing independent scrutiny of the quality and rigour of these three investigations on behalf of the Department of Health. There are also investigations taking place at a further 10 trusts.

The Metropolitan Police Service, working with Kate Lampard, has established there was further relevant information regarding Jimmy Savile. The Department of Health asked the Metropolitan Police Service, through an agreed information-sharing process, to review information it held to ascertain if it included material related to health and care settings.

This review is still ongoing. We understand the material includes information about hospitals where investigations are already under way, and reference to other hospitals. Once this review is complete, the information will be passed on to the relevant trusts or investigations as quickly as possible. I will then issue another written statement, including the names of any other hospitals involved.

Although all 13 investigations are currently on track, this additional material means that the timetable will be affected. It is vital that the final NHS investigation reports are thorough and complete, and reflect all the evidence about Jimmy Savile’s pattern of offending. The final reports of all the investigations will now aim to be completed by June 2014, with publication sooner if that is possible.

Direct Entry to the Police

Monday 14th October 2013 Written Statements

[The Minister for Policing and Criminal Justice (Damian Green)]

On 30 January 2013, I issued a written statement to the House—Official Report, column 46WS—confirming the commencement of a consultation exercise seeking views on how proposals for direct entry in the police, as set out in the independent review of police officer and staff remuneration and condition carried out by Tom Winsor, should be implemented. The proposals included a three-year fast track to inspector scheme, direct entry at superintendent and direct entry at chief constable for those who have equivalent experience from overseas.

The consultation exercise closed on 28 March and 929 responses were received. Issues such as equality, opportunities for existing officers, flexibility for annual cohort numbers, and the skills needed for policing were raised. A proportion of respondents were opposed to the direct entry schemes in principle. These respondents valued policing experience as the principal foundation for all police leaders.

The Government have today published their response to the consultation, a copy of which will be placed in the House Library. The response makes it clear that the Government remain committed to implementing fast track and direct entry schemes as they offer an opportunity to attract the best talent to the police, bringing in new skills and ideas from other professions. It also sets out the Government’s position whereby:

Cohort sizes should be flexible to reflect the changing needs of forces. We believe there should be in the region of 80 places on each annual cohort for the inspectors’ scheme, in line with recommendations made by Tom Winsor. We believe the superintendents’ scheme should develop so that there are at least 20 places on each annual cohort.

The Government also think that external applicants to the inspectors’ scheme should have a degree but this requirement will not be part of the eligibility criteria for existing officers, including those serving in the special constabulary, providing alternative routes on to the scheme.

PCCs should have the ability to choose their chief constable not only from the senior ranks in the United Kingdom, but also from other countries with a similar legal framework and policing model to ours. This will enable PCCs to choose the very best person for the job.

The Government included a provision in the Anti-social Behaviour, Crime and Policing Bill which seeks to enable direct entry at the rank of chief constable for those with equivalent experience from overseas.

I have commissioned the College of Policing to implement the direct entry schemes. The Government’s response to the consultation makes it clear that it is right that the College of Policing, rather than those in Whitehall, should lead on the design of the new schemes. The College of Policing has the remit to set standards and support the professional development of police officers and staff and the necessary expertise to implement the schemes.

The first cohorts are expected to start in 2014. As part of its evidence-based approach to policing, the college will evaluate the implementation of direct entry after five years and submit a report to the Government.

G6 (Rome)

Monday 14th October 2013 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

The informal G6 group of Ministers of the Interior from the six largest European Union countries, including representatives of the United States of America and the European Commission, held its most recent meeting in Rome on 12 and 13 September 2013.

The summit was chaired by the Italian Interior Minister Angelino Alfano and I represented the United Kingdom. The other participating states were represented by Hans Peter Friedrich (Germany), Manuel Valls (France) and Jorge Fernandez Diaz (Spain). Poland did not participate on this occasion. Eric Holder (the US Attorney-General), Rand Beers (Acting US Secretary for Homeland Security), and Stefano Manservisi (DG Home Affairs), representing the European Commission, attended the whole summit.

The first formal session was on counter-terrorism. Ministers discussed the current threat picture and security risks posed by returning foreign fighters. I emphasised the importance of having an intra-EU passenger name records (PNR) regime in place in order to enhance our ability to detect terrorists’ journeys within Europe. I also highlighted the need to identify and prevent individuals from travelling to Syria to become involved in the civil war, particularly those at risk of becoming radicalised having gone there for humanitarian reasons. This, among other measures, requires a better communication strategy about efforts the international community is taking to alleviate the suffering of Syrians on the ground.

The second formal session covered migration issues. I acknowledged the problem of illegal immigration faced by southern EU member states, but I reminded delegates that 70% of asylum applications in 2012 were lodged in only five member states, one of which was the UK. I said that this underlined the need to have a reasoned and coherent EU response to migratory pressures and improved practical co-operation aimed at building capacity in member states under particular pressure. I also emphasised that all member states had a duty to their neighbours to operate effective asylum and migration systems and that principles of the Dublin regulation must be upheld. I supported continued work with third countries and emphasised the importance of including migration issues, including returns, into wider political discussions and agreements with them.

The sessions on organised crime and cybercrime were combined. States briefly discussed prevention mechanisms against criminal penetration into the public sector with close focus on the Italian CAPACI (creation of automated procedures against criminal infiltration in public contracts). I said that we needed to do more to understand the nature and extent of the threat of corruption in public procurement. I welcomed in principle efforts within the EU to modernise public procurement but I also highlighted concerns over the current draft directive on confiscation, which as drafted could pose a risk to existing non-conviction-based confiscations.

States also discussed ways of improving international co-operation and sharing best practice in tackling cybercrime. I agreed that there was a need for an effective response to cybercrime with emphasis on practical co-operation rather than new legislation. I informed other delegates that the national cybercrime unit, a new unit within the infant National Crime Agency, would lead the national response to cybercrime and also act as the UK lead on cybercrime internationally.

The summit offered an excellent opportunity to hold separate bilateral meetings with other delegations. I met with French, Spanish and Italian Ministers and I also met with Eric Holder and Rand Beers who represented the USA.

The next G6 summit is expected to take place in Krakow on 11 and 12 December.

Commonwealth Scholarship Commission in the UK (Triennial Review)

Monday 14th October 2013 Written Statements

[The Minister of State, Department for International Development (Mr Alan Duncan)]

On 13 November 2012, my right hon. Friend the Secretary of State for International Development announced the commencement of the triennial review of the Commonwealth Scholarship Commission in the United Kingdom (CSC). I am pleased to announce completion of the review.

The CSC is a statutory body which administers the Government’s contribution to the Commonwealth Scholarship and Fellowship Plan.

The review concluded that the functions performed by the CSC are still required and that it should be retained as an executive non-departmental public body (NDPB). The review also looked at the governance arrangements for CSC in line with the guidance on good corporate governance set out by the Cabinet Office. The report makes some recommendations in this respect, which will be implemented shortly.

The full report of the review of CSC can be found on the DFID website and copies have been placed in the Libraries of both Houses.

Employment, Social Policy, Health and Consumer Affairs Council

Monday 14th October 2013 Written Statements

[The Minister of State, Department for Work and Pensions (Esther McVey)]

The Employment, Social Policy, Health and Consumer Affairs Council will be held on 15 October 2013 in Luxembourg. There are no health or consumer affairs issues on the agenda. The United Kingdom will be represented by the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), who is responsible for employment relations and consumer affairs, and Shan Morgan, UK Deputy Permanent Representative to the European Union.

In the first discussion Ministers will be invited to agree a general approach with regard to the enforcement directive on posting of workers. This will be followed by an exchange of views on youth employment, with the main focus on the implementation of the related initiatives at both national and EU levels.

Ministers will discuss the evaluation of the 2013 European semester in employment and social policies and will be asked to endorse the respective contributions from the Employment Committee (EMCO) and Social Protection Committee (SPC) as well as the key conclusions of the SPC report on social policy reforms for growth and cohesion as a contribution to the annual growth survey 2014 policy priorities.

There will also be a policy debate on the social dimension of the European Monetary Union in which the Commission will be invited to present its recent communication “Strengthening the Social Dimension of the Economic and Monetary Union”, followed by a presentation of the respective contributions of the EMCO and SPC.

Ministers will consider Council conclusions on the European Court of Auditors’ special report on the value of European Globalisation Adjustment Fund.

Under any other business the presidency will provide updates on legislative issues and will report on preparation for the tripartite social summit meeting.

Grand Committee

Monday 14th October 2013 Grand Committee

Monday, 14 October 2013

Children and Families Bill

Monday 14th October 2013 Grand Committee

Committee (2nd Day)

15:30

Relevant documents: 7th and 9th Reports from the Delegated Powers Committee.

[The Deputy Chairman of Committees (Lord Bichard) (CB)]

Welcome. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Amendment 26

Moved by

[The Earl of Listowel]

26: After Clause 6, insert the following new Clause—
“Looked after children: duty to provide information about support on returning home to care of parents or others with parental responsibility
(1) Except in circumstances prescribed by regulations, a local authority must provide the information specified in subsection (2) to—
(a) any person who has contacted the authority to request information about “return home support services” for a looked after child returning home to the care of P; and(b) any P within the authority’s area, to whose care a looked after child has returned, who has contacted the authority to request any of the information specified in subsection (2).(2) The information is—
(a) information about the return home support services available to people in the authority’s area;(b) information about the authority’s duties under section 22(3A) of the Children Act 1989 (“return home support services”: personal budgets) and regulations made under it;(c) any other information prescribed by regulations.”

[The Earl of Listowel (CB)]

Amendment 26 is in my name and that of the noble Baroness, Lady Massey of Darwen. Our two amendments relate to support for children returning home from care. Perhaps the best way to illustrate quickly what this is about is to give a couple of illustrations. Here is a quotation from a female caller to ChildLine:

“I’ve been in and out of care from a very young age due to my mum hitting me, neglecting me and taking drugs. Social services would come and take me away and I would spend some time in care, then mum would promise to change and I would go back home for the whole situation to start again. I don’t understand why social services keep giving me back to mum if they are going to end up taking me away again”.

Recently, I met a group of young care leavers, who shared with me their experiences. A 15 year-old girl—a lovely, lively young girl—had been promised that she was returning to a well equipped home. She found that there was no cooker and no microwave, and that she was sharing a pull-out sofa-bed with four other members of the family. There was no support. She had been doing well educationally in care, but when she went home her results plummeted. Another young woman did not want to return home. Her social worker offered to take her to McDonald’s; lo and behold, she was taken back to the family home and told that she had to stay there. I am sure there is good practice, but there is clearly a lot of work to be done.

I turn to the detail of my two amendments, which are supported by the NSPCC, the Family Rights Group, the Who Cares? Trust, the College of Social Work and TACT, the largest independent fostering and adoption agency. Returning home to a parent or relative is the most common outcome for children who have been placed in care. However, approximately half the children who come into care because of abuse or neglect suffer further abuse when they return home. Social workers often feel unsupported and lack the time and resources to support the children whom they return. In over one-third of cases, children returned home without an assessment. Parents’ problems often remain unresolved. Practice is highly variable in different local authorities. The Bill should be amended to require local authorities to assess, prepare, support and monitor a child’s welfare when they return home, and to ensure that parents know what support they are entitled to, just as has been developed in changes to adoption. It is vital that we improve support for all looked-after children if we are to protect our most vulnerable children from harm, and thus extend the entitlement in Clause 4 to support for children who return home.

Further research has shown that two-thirds of children who returned home remained with a suspected abuser even after concerns had been identified. Over one-third of children return home from care without an assessment, and a further 8% return after only an initial assessment. Research highlights children returning to households with a high recurrence of drug and alcohol misuse: 42% with drug misuse and 51% with alcohol misuse. Recent statistics published by the Department for Education show that almost half of children who return home re-enter care. In total, two-thirds of children who returned home experienced one failed return and one-third had oscillated in and out of care twice or more. A report published by the Department for Education concluded that appropriate services and support in place for a child and parents from the beginning of the care episode, throughout care placement and after the return home could significantly reduce the cost to the local authority. It costs around £2,650 per placement in care but it only costs £193 per month to look after a child in need. It therefore makes good financial sense to ensure that children and families get the support they need.

In a new Department for Education consultation on permanence, there have been welcome proposals in this area but they apply only to voluntarily accommodated children and, although it is more likely for such children to return home, it is important that support is also provided for all children returning home from care. Most importantly, the Government’s current proposals do not ensure effective assessment or that children returning home—and their parents—receive the support needed to increase the likelihood of a successful return.

I mentioned a recent meeting with some young people. In summary, they all found that they had not been given enough information about why they were returning home and their views were disregarded. One of them said that she had been promised regular monitoring for months after her return home, gradually reducing over time. She received two brief monitoring visits. None of them had received any substantial support to integrate back into the home and rebuild relationships, nor had their parents’ problems improved enough for them to stay at home safely. They all agreed that there needed to be more support for children and their families when they returned home and for this to happen over a longer period of time.

This amendment aims to increase the chances of successful return home from care for all looked-after children by requiring local authorities to adequately assess, prepare, support and monitor the welfare of the children when they return home from care, in line with support that is proposed, in Clauses 4 and 5, for children who are adopted. I look forward to the Minister’s response and beg to move.

[Baroness Massey of Darwen (Lab)]

My Lords, I support Amendments 26 and 29, in my name and that of the noble Earl, Lord Listowel. I will briefly state the arguments for my Amendments 30 and 31, which refer to improved support for special guardianships.

I want to reflect on some of the things which came up in Committee last week about children wanting to know; children having experiences and having a voice. We know, from children’s own stories, that support for them is not always there when they return home from care. Returning home to a parent or parents is the most likely outcome for children who have been in care and this can be the best result, but NSPCC research shows that about half the children who go into care because of abuse and neglect suffer the same when they return.

I will illustrate this with something I heard at the weekend, at the opening of a centre in Brighton which supports young people whose parents are addicted to drugs or alcohol. Children may be placed in care because one or more parents are addicted. The parent or parents go into treatment and are rehabilitated: they get clean. The children return and family stress may mean that the parent turns again to drugs or alcohol. The parents need support and the child needs support. I know from my experience as chair of the National Treatment Agency for Substance Misuse that some local authorities and drug or alcohol agencies provide excellent information and support for parents, but others do not. So often in services, we end up with a vicious circle of rehabilitation and relapse—be it drugs or prison, abuse or neglect—with children in the middle. A recent report from the Centre for Social Justice talked of children falling between the cracks, and so they do. We have in the Bill an opportunity to strengthen local authorities’ responsibilities towards children returning home from care and increase the chances of it being a successful return. If that return is not successful, not only does it cause more stress for children and families but it is expensive, as the noble Earl, Lord Listowel, said. Improving things is not likely to cause extra expense to the LA; it is likely to save money.

One key is assessments of the needs of the family and the child. It is worth asking families and children what they need rather than making assumptions about it, assuming that everyone is the same or that they simply need information. As Amendment 26 suggests, information is important, but it is not everything. Information about support services should also be in place. More than one-third of children return home without an assessment taking place, and assessment is not necessarily ongoing. Assessment should not be a one-off. Needs can change. I know that successful treatment for an addiction means revisiting the initial assessment regularly. The Department for Education produced a useful data pack entitled Improving Permanence for Looked After Children in September this year. It has messages and questions for local authorities, such as: what are all the assessment and decision-making processes for return to home from care? What services are available for returning children to their family? How do services link across children adult and specialist services—for example, can access to parenting programmes and drug or alcohol programmes be part of a “return to home” plan? What action are you currently taking to improve return on practice?

All those questions are important, but perhaps the most important is the linking of services. So often, services are parcelled out into child, adult, mental health, drug and alcohol, but often there are significant overlaps which are not recognised or responded to. Following a child’s return home from care, neither they nor their parents have a right to any support, and children often end up, as we have heard, back in the same situation—as I said, a vicious circle. Children have said, “I was left to it. I have been in care because my dad assaulted me. Since I have been home, he has been threatening me, pushing me around. I have been cutting myself and I feel like I want to die”.

We all know that behaviour change is difficult. It is perhaps especially difficult for troubled families. The needs of such families—of all families and their children—must be addressed before a child returns home. Engaging with families has been identified as an opportunity to enable the return home to be successful. Personal budgets are important and Clause 4 suggests that they should be available to parents of an adopted child. It is vital that that is extended to children returning home. I hope that the Minister will respond sympathetically to the amendments.

I shall say a quick word about my Amendments 30 and 31, which refer to special guardianship support services and personal budgets. I shall not go into detail on the amendments; they are self-explanatory. Their aim is simply to ensure that improved support for adopters in the Bill in the form of personal budgets and better information about support is extended to special guardians who, like adopters, are providing a permanent home for a child as an alternative to them being in the care system.

I am aware that this issue will come up again but, meanwhile, I hope that the Minister will respond favourably.

00:00

[Baroness Howarth of Breckland (CB)]

My Lords, I shall speak only briefly to the amendment because I presume that the Minister’s response will be that this should not be necessary because it should be provided by local authorities through good practice. I support the amendment simply because the postcode lottery in local authorities means that some will get good services, good information and steady support but a large number will not. The Government, in setting a framework, have a responsibility to ensure that there are consistent services right across the piece.

Many years ago, when I was dealing with children in care, I had to deal with what we called yo-yo children—those children who came in and out of care. When you identified a child who was not consistently either in care or at home, you settled down and set a proper assessment and programme for that child and made sure that there was a good way forward. I hope the Minister will have an answer to the kind of practice that is happening, otherwise, at a later stage, I will need to support the amendment.

As to special guardianship, when we were sitting in the adoption committee it became clear that there was very little difference between some children who were adopted and many children who were in special guardianship placements. The one difference was that those in special guardianships were struggling even more than those in adoption placements because, although the support is poor for post-adoption, it is even less for post-guardianship. Any services that are extended to adoptive parents must be looked at in relation to special guardianships, because these very often are the same children but have the benefit of being placed with those who know them and who loved them even before they were placed with them. I believe that is what the Government have been trying to do.

[Baroness Hamwee (LD)]

My Lords, I support what the noble Baroness has just said about special guardianship. It is a paradox that there were obstacles to special guardianship when it was a desirable outcome in particular cases.

I thank the noble Earl for arranging the meeting with the group of young people 10 days or so ago. I found it encouraging and disturbing at the same time. They were a remarkable group of young people. I do not think I could have been nearly as resilient as most of them seem to have been in the conditions they described. In support of the amendment, I shall read from a few of my notes: “There was no checking on the conditions I’d be going back to”, and the noble Earl has referred to the capacity of the mother and the physical conditions; “it depends on the child to tell or to ask for help”, which is a very salutary thing to have heard; “I went home once a month but no one checked up or even asked how the weekend went”, and the picture that I got was of variable circumstances and variable support depending, frankly, on where the child was. One—I hesitate to call him a child—young person said, “I should not have been allowed to go home”.

[Baroness Howe of Idlicote (CB)]

My Lords, sadly, I was not able to go to the gathering of young people. However, what one has seen and read is appalling. The most appalling aspect of it is that the children’s voices are not automatically heard in situations such as these on every occasion when they are of an age where their voices could be heard. Their rights should be protected, and if they do not wish to go home there is no question that they should be sent home under those circumstances. We have seen and read so much evidence from so many organisations that I hope the Minister will be able to give us a great deal of reassurance about the changes that are clearly needed.

[Baroness Walmsley (LD)]

My Lords, I make the point that if you want to know what a child needs, you should ask the child. If you want to know what the child’s parents need, it is also often quite a good idea to ask the child. People who are addicted are not always totally candid with the social workers, but if a child goes home for visits or is sent home—apparently permanently but that turns not to be permanently—he or she knows exactly what is going on in that home and can help the services in assisting the parents so as to ensure that the child can eventually go home if the parent is genuinely rehabilitated.

I also add my support to what the noble Baroness, Lady Massey, said about special guardians. They perform an invaluable public service at very little cost. Some of them break down because of lack of support and help, and we ought to do something about that.

[Baroness Hamwee]

My Lords, this is Committee: I was rather carried away by reading the notes and I meant to ask the noble Earl a question on his drafting in Amendment 26. In proposed new subsection (1)(a), he provides for,

“any person who has contacted the authority to request information”.

I suspect that he does not quite mean “any person”. I can imagine circumstances where it would be entirely wrong for information to be given out. Perhaps he can give the Committee some assurances about that, particularly if he is going to come back with this at a later stage.

[The Earl of Listowel]

I thank the noble Baroness. She makes a very good point and I shall look at that. We are trying to ensure that anybody caring for these young people gets the support they need to do an excellent job. We do not want people who might wish to misuse any information about them to get information.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I want to intervene briefly. We know that many children want to maintain contact with their natural family, even if they know that that family is chaotic. I absolutely support the amendments but my concern is that they do not push hard enough for support when the child initially goes into care. This builds on something that I was trying to say last week. Our responsibility ought to be to ensure that, while the child is in care, work none the less goes on with the natural parents so that an assessment can be made of whether they are capable of change and willing for change to take place. Our problem is that too often children who themselves have improved are then sent back home and no work is done with the parents before that happens. That is often why the placement breaks down again, and that is expensive—not just in monetary terms in trying to deal with that when the child comes back into care, but precisely because it adds to the damage that has already been done.

I chair an organisation in the north-east which does quite a lot of work with people who have addictions. We have a programme where we take mothers who are addicted into residential accommodation with their children. It is largely paid for by the National Health Service but we put a bit of our own money into it and we try to get some money from local authorities too. During the residential period, intensive parenting takes place and what happens to the children in that situation is also monitored extremely carefully. In that way, you really can make an assessment as to whether it is going to be feasible for the mother and her children to make it outside the care system.

One problem that was re-emphasised to us while we were on the adoption Select Committee is that very often parents who are encouraged or are made to put their children up for adoption because they are not capable of looking after them simply go and have other children. Our intervention with the Cyrenians in Newcastle is really trying to stop that by saying, “If you’re going to have another child then you’ve got to take the steps necessary to make sure that that child actually stands a chance”, so that there is not a wheel continually going round where they are saying, “If I can’t have that child then I’m going to have another child”, without any exit.

The Government really need to look at how we work with natural parents once the child has gone into care. If we can get better at that work, we may indeed be able to return children much more successfully and the support package being talked about in the amendments will then really bear fruit.

[Baroness Hughes of Stretford (Lab)]

My Lords, briefly, I particularly support the points made by the noble Baroness, Lady Howarth, in relation to Amendments 26 and 27. These amendments are important because, as she said, the statistics show us that the system is not working well for children who return home. While going home is the most common outcome for children in care, around half of them have to go back into care—sometimes more than once in this revolving-door pattern that can emerge—simply because there is not the good social work practice in relation to children returning home that we associate with other forms of childcare.

As the amendments address, there is not good assessment, good identification of need or provision of the necessary support services. There is also, very often, no continued monitoring of how that child is faring when they go home. That is the first point which the Government need to address: the statistics show us that it is not working when half the children who go home have to come back into care. That obviously not only damages them; as the research has shown, the costs of the consequence of coming back into care escalate because as children return from successive attempted reunifications, they are more damaged. The cost of caring for them in other placements then becomes that much greater. As the University of Loughborough has shown, as well as the social and moral imperative to try to reduce these failed reunifications there is, potentially, a financial benefit. If you can prevent the escalating cost of failed reunification, it makes financial sense as well and may in fact reduce costs to the local authority.

These amendments are about preventing further breakdown and damage to children. They are really about the good social work practice that should be going on but which we actually know is not, because reunification practice varies so widely across local authorities. The amendments would at least set a standard as to what should be required.

[Viscount Eccles (Con)]

I wonder whether the noble Baroness, Lady Hughes, will tackle the question that she has just referred to. Is there anything in existing legislation—I do not know how many Acts there are but there are those of 1989, 2002 and 2004, and probably quite a few more—which prevents the favourable outcomes described so well by herself and by other Members of the Committee?

[Baroness Hughes of Stretford]

My Lords, no doubt the Minister will enlighten us but what I am saying is that where local authorities have discretion around the quality of the social work practice that they will deliver to different groups of children, as they do, it means that some of those groups lose out. Demonstrably, by the statistics, it appears that children who are sent home from care are sometimes sent too early or without thorough assessment, do not necessarily get the ongoing support and are not monitored sufficiently. Those kinds of things happen with other cases—with child abuse cases, perhaps. However, it seems as if in many local authorities a decision is made that the child can go home but the focus of attention does not continue on to that child, which is more likely to result in breakdown.

[Baroness Massey of Darwen]

I shall comment briefly on what the noble Viscount said. One of the main issues is that the children and parents have no right in law to support—support is discretionary.

15:59

[Baroness Northover (LD)]

My Lords, noble Lords have highlighted some key areas on support of children, particularly those who may be returning from care. I assure the noble Baroness, Lady Howarth, and others, that we take these issues seriously. I hope, too, that I can be heard.

[Baroness Howarth of Breckland]

There are some difficulties on this side.

[Lord Northbourne (CB)]

I confess to being one of those who finds it difficult.

[Baroness Northover]

Okay, I shall shout loudly.

I shall speak first to Amendments 26 and 29 on the issue of assessment and support for children returning home from care to their families. As the noble Earl, Lord Listowel, pointed out, and as research has shown, almost half the children who return home later re-enter care, and almost one-third of those children have very poor experiences of that return. This is clearly unacceptable, and we recognise that. The noble Earl gave a very compelling instance of this, which was echoed by my noble friend Lady Hamwee.

This area is a priority for the department, which is why we established an expert group over a year ago to help us to understand and drive forward the improvements that we recognise are needed. The group includes academics, local authority representatives and sector organisations such as the Family Rights Group, the Who Cares? Trust and the NSPCC. We thank them for their work in this area. We are particularly pleased that the NSPCC is undertaking research in this area to understand how decision-making and support can be improved for these families. This will and must include ensuring that the voice of the child is at the heart of all decision-making, and I hope that that will reassure the noble Baroness, Lady Howe, my noble friend Lady Walmsley, and others. The working group has focused on how data can be used effectively to support local authority practice improvements, identify the areas where the statutory framework needs strengthening, and help us understand how we can support changes in practice that are effective and sustainable.

The current statutory framework clearly sets out requirements to return a child to their parents and to provide information about the support services available for these families. It is important to acknowledge that the statutory framework is different for those children who are subject to a care order and return home and those children who have been voluntarily accommodated and then return. The current statutory framework clearly sets out the requirements for placing a child with their parents—that is, when a child will remain subject to a care order after returning home. For example, a robust assessment of the parents’ suitability to care for their child must be undertaken; a nominated officer must be satisfied that the decision to return a child to the care of their parents will safeguard and promote the child’s welfare; and the local authority must continue to review the child’s case, setting out the services and supports in the child’s care plan and reviewing this regularly. However, the statutory framework for voluntarily accommodated children is not as strong—and noble Lords are clearly aware of that. That is why we are consulting on changes that might be made to this.

The Improving Permanence for Looked After Children consultation launched on 30 September includes a number of proposals to address the issues faced by voluntarily accommodated children in returning home. We want to strengthen the statutory framework to ensure that the decision to return voluntarily accommodated children is taken by a nominated officer, that the plan for support following the return home is clearly set out and reviewed, and that these children and their families are offered continuing visits and support from the local authority following the return. Those are some of the issues that noble Lords have just raised and which the noble Baroness, Lady Armstrong, highlighted. Also, the department’s evidence-based intervention programmes announced in February 2013 include interventions forsome of the children who often return home, such as teenagers. There is, for example, a focus on developing multisystemic therapy and family integrated transitions; this intervention supports children and young people returning home from care or custody.

We also propose to place a duty on local authorities to review a child’s case within a specified framework where the return home is unplanned. The consultation on these changes will close at the end of November, and we expect to publish our response in the spring, with the changes coming into force in the summer of 2014. I hope very much that noble Lords will take advantage of this consultation and feed in their experience, expertise and ideas effectively by the end of November.

I now turn to Amendments 30 and 31, which refer to information and support available to special guardians. Special guardians do a very important job, which we heard from both the noble Baroness, Lady Massey, and my noble friend Lady Walmsley. We agree that we need to look at whether they are being given sufficient support. The department therefore commissioned the University of York in March 2012 to carry out a two-year research project to investigate how special guardianship was working in practice, and the rates and reasons for any breakdowns. The final report is expected in autumn 2014. This is a major piece of research which will help us to understand how well special guardianship is supporting children and families.

We are planning to pilot personal budgets, as noble Lords know, as part of the adoption support fund prototypes over the next 18 months, to see how they work in practice and whether they deliver the benefits that we expect. These pilots, alongside the richer understanding that we will have by then of the way in which special guardianship is working, will allow us to reach an informed view about the potential for personal budgets for special guardians. If there is a need to change the statutory framework we will consider what secondary legislation and statutory guidance needs to be brought forward and will consult on these before implementation. I hope, again, that noble Lords are reassured by the work going on. I hope, therefore, that I have given noble Lords sufficient reassurance that the Government recognise and are committed to working towards supporting birth parents and special guardians, and that the noble Earl will withdraw his amendment.

[The Earl of Listowel]

My Lords, I thank the Minister for her very careful reply. It is very welcome that the expert group was set up a year ago, and it may be too early to ask what progress has been made. We have heard the rather depressing statistics about children returning from care. How much difference does the Minister expect to be making in the next three years, year by year? What is the timescale for changing the outcomes for these young people? Perhaps the Minister would write to me.

[Baroness Northover]

I am happy to write to the noble Earl, and to copy it to other noble Lords who have contributed to the debate, spelling it out in some more detail.

[The Earl of Listowel]

My Lords, I thank the Minister and I also thank my noble friend Lady Massey of Darwen for her eloquent support, and for all her experience with the issue of substance misuse. Clearly, it is concerning that people who are addicted to alcohol or other substances will lapse from time to time, and if children are placed with them such families need to be monitored, with additional support put in as necessary.

I am very grateful to all noble Lords who have spoken in support of the amendment, and I particularly thank the noble Baroness, Lady Hamwee, for her communication on the voice of the children at our recent meeting. I was very glad that she was able to make the time to be present. I hope that those young people and others will feel that we have done justice to their concerns today. I will consider what the Minister has said and beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendment 27

Moved by

[The Earl of Listowel]

27: After Clause 6, insert the following new Clause—
“Local authority investigation: advocacy
In section 47 of the 1989 Act (local authority duty to investigate) after subsection (5A) insert—“(5AA) In meeting its duty under subsection (5A), a local authority shall give consideration to making arrangements for the provision of independent advocacy for the child in relation to any decision making meeting in the course of section 47 enquiries unless the child states that he or she does not wish to receive the services of an independent advocate.
(5AB) For the purposes of this subsection—
(a) “advocacy” means the provision of independent and confidential information, advice, representation and support to a child;(b) “independent” means where the person appointed is not connected with the local authority by virtue of being—(i) a member of the local authority or any of their committees or sub-committees, whether elected or co-opted;(ii) an officer of the local authority employed by the Children’s Services Department of that authority; or(iii) a spouse or civil partner of any such person.””

[The Earl of Listowel]

My Lords, I shall speak also to Amendment 28 standing in my name. Both amendments relate to advocacy and, again, it may be helpful if I begin with an illustration of why advocacy is important.

Advocacy is a means of ensuring that the wishes and feelings of children, particularly children in care, are heard. A typical issue might be whether they have the right to have contact with siblings or to continue to remain in the same placement. Another concern might be a child whom it is convenient for the local authority to move to a new placement, or the local authority may consider that it is in the child’s best interests to do so, but the child very much feels that where they are is where they wish to continue to be.

The first amendment looks at advocacy in relation to child protection conferences. This is a probing amendment and its purpose is to debate the merits of the introduction of a statutory presumption that local authorities should give consideration to ensuring that children and young people are supported by an independent advocate in initial and review child protection conferences unless they choose to opt out.

The purpose of the two amendments is to elicit a debate on advocacy and to get an assurance from the Government on two things. First, will the Government produce an advocacy handbook to replace the 2004 Get It Sorted guidance, which is now nearly 10 years out of date, to reflect current policy and practice? Secondly, will the Government collect more data on how advocacy is used in child protection conferences and care reviews so that we know better what happens and how good access to advocacy is for children in care in those two situations?

Evidence has consistently shown that the child’s voice is often not heard and effectively represented in child protection cases. Both professionals and children think that meaningful engagement of children in the decision-making process would lead to improved outcomes. Recent high-profile cases have once again put child protection services under close scrutiny. The exposure of systematic safeguarding failures in Oxford, Rochdale and Edlington have raised questions about the extent to which services are putting children’s experiences and voices at the heart of the child protection process. The 2012 Monro Review of Child Protection states:

“Children and young people are a key source of information about their lives and the impact any problems are having on them in the specific culture and values of their family. It is therefore puzzling that the evidence shows that children are not being adequately included in child protection work”.

Child protection conferences are a key part of the child protection process, although I shall not describe them in detail. Until recently, the framework for ascertaining a child’s wishes during the child protection process was provided by the Working Together to Safeguard Children guidance, published in 2010. From April 2013, a revised version of this guidance has been in place with the aim of reducing the level of prescription and bureaucracy involved within safeguarding procedures. Although the revised guidance recommends obtaining and understanding the wishes and needs of children within a child-centred system, it gives far less prominence to the involvement of children during assessment and within the child protection process than the previous version. In particular, there is no longer a presumption that a child, subject to age and understanding, should be invited to attend their conference with an advocate if they wish to do so. So there is less prescriptive guidance alongside no clear statutory right to advocacy. This risks reducing the opportunity for people to participate in the child protection process.

16:15

The next amendment relates to children in reviews. Again, this is a probing amendment. Edward Timpson, the Under-Secretary of State for Children and Families, clearly recognises the importance for children of their being heard in decisions affecting them. However, if this is to be effective, children need to be able to access independent advocacy and support when significant decisions are being made about their lives.

I shall not go into the details of what independent advocacy is. However, various professionals are supposed to take on this role. They consider what they need to do in the best interests of the child but no one is there to say to the child, “We are just interested, independently, in what your wishes and feelings are. We just want to help you to express those things”. That is the particular niche for independent advocates.

For instance, it has been suggested that IROs—the independent reviewing officers—can fulfil the role of ensuring that the child’s wishes and feelings are heard in their reviews. However, they have a number of different roles: they chair the meeting, draw together the views of the child and the other professionals, and have a duty to monitor the case. National advocacy standards require an advocate to act on the child’s instructions about their express wishes and feelings and to uphold their rights. Non-instructive advocacy is provided for younger children and those with communication difficulties. All advocates will discuss matters and seek to help the child to understand the views of others but, ultimately, they are required to act on the wishes and feelings of the child, reflecting the child’s perception of their best interest.

Looked-after children, care leavers and children in need have a statutory right to an advocate in making or intending to make a complaint under the Children Act 1989. We introduced this in 2004 in the Lords, and over the years since there has been an increased recognition by the Government of the importance of advocacy for looked-after children and care leavers. However, there is an inconsistency in implementation which means that children and young people still do not receive the advocacy support to which they are entitled. In particular, provision of services is patchy and inconsistent. A report from the Children’s Commissioner illustrated the postcode lottery and provision of advocacy services in general and the legal categories of children covered by local authority contracts. For example, some services are not commissioned to provide services to children in need. Research by the Children’s Society showed that one-third of local authorities do not report any spending on advocacy services. Recent experience from the helpline of the charity Voice has shown a great increase in recurrent calls from young people, many of whose home advocacy or children’s rights services state that they are unable to help them.

We need to strengthen the right to independent advocacy for these children. Particularly helpful for this would be a new advocacy handbook which would draw together all the existing guidance, standards, frameworks and minimum standards; describe better the provision of advocacy services for children and young people in child protection conferences; draw on the recent reports of good practice—it would give examples of good practice—and the involvement of independent advocates in child protection conferences; and, importantly, look at the routes to training and practice for advocates. They are extraordinarily important professionals. It is a relatively new profession that has blossomed in the past 10 years and we need to be quite clear what the requirements are for training, support and supervision of these advocates. These need to be clearly laid out and monitored.

I hope that the Minister and your Lordships will find this discussion helpful. I look forward to hearing the Minister’s response. I beg to move.

[Baroness Stedman-Scott (Con)]

Amendment 65A seeks to appeal restrictions to Section 8 orders for children in local authority care. At present, legislation which aims to ensure the welfare of looked-after children is not being consistently implemented at local authority level. For instance, Section 9 of the Children and Young Persons Act 2008, states that:

“As far as is reasonably practicable”,

and when “consistent with their welfare”, a local authority must provide accommodation for a child that is “in the authority’s area”, yet in reality one-third of children in care are placed outside their local authority’s area. In the case of residential care, almost half of children are placed outside their area.

Similarly, Section 8 of the Children and Young Persons Act 2008 states that suitable accommodation should ensure that,

“if C has a sibling for whom the local authority are also providing accommodation, it enables C and the siblings to live together”,

yet in a survey by the Children’s Rights Director in 2011, almost three-quarters of children in care reported being separated from their siblings. Young people in children’s homes are most affected with, I am advised, 96% being separated from a sibling. Noble Lords will agree that the current situation is unacceptable, yet there is little recourse at present for looked-after children to enforce their rights.

Independent reviewing officers are supposed to intervene if a child's views and welfare are not being taken into account in care planning, and have the power to report cases to CAFCASS, which reports to the family courts. However, this rarely happens in reality. Between 2004 and 2011, independent reviewing officers reported only eight cases to CAFCASS. Independent reviewing officers seem to lack the time, independence and legal expertise to properly ensure children’s rights are not breached.

Similarly, the complaints procedures available to looked-after children are both too lengthy and insufficiently robust to make a difference in serious cases. A survey by the Children’s Rights Director in 2012 found that over one-third of the looked-after young people surveyed said that making a complaint made no difference at all to their situation and over one-fifth said it had made it worse.

Finally, children in care already have access to legal action through judicial reviews for very serious cases. However, while judicial reviews are superior to complaints procedures and IROs as they are truly impartial, robust and fast enough to make a real difference, there are also limits to their effectiveness. First, they can question only the way a local authority has made a decision, not the decision itself. Secondly, judicial reviews are an extremely expensive way of enforcing rights, costing upwards of £30,000. Given the economic climate we are in, it is increasingly unlikely that judicial reviews will continue to be an option for looked-after children. Thirdly, they happen after the event and usually after significant harm has been sustained.

However, there is an important legal right that looked-after children are denied, which could provide them with a means to prevent local authorities acting against their interests. As I am sure noble Lords are aware, Section 8 orders such as contact, prohibited steps and specific issue orders enable children to prevent their parents taking actions that are against their best interests. If a parent attempts to prevent a child seeing a family member or tries to move the child away from their home, the child may, through their solicitor and if that legal representative considers there to be sufficient grounds, ask a court to make a Section 8 order. Though rarely exercised or indeed necessary, the right to do this is a crucial protection for children in difficult situations.

However, at present, Section 9(1) of the Children Act 1989 states:

“No court shall make any section 8 order, other than residence order, with respect to a child who is in the care of a local authority”.

This is a gross inequality for looked-after children, denying them the same rights available to all other young people. Opening up Section 8 orders to looked-after children would give them a clear and direct means of redress if a local authority is acting against their interests and welfare. For instance, a child threatened with an unnecessary move far away from home could ask a court to make a prohibited steps order. The threat of legal action would also provide a clear incentive for local authorities to implement existing policy concerning looked-after children and act in their best interests. The paramountcy principle is enshrined in the Children Act 1989; importantly, this will be driven not by government but by the people whose lives are most affected.

It is not envisaged that large numbers of looked-after children will approach courts to make Section 8 orders against local authorities. However, for those in very serious situations where such legal action is appropriate, this will be an enabling right which could make all the difference. The potential gains of opening up Section 8 orders are very great. By allowing young people to seek help from a court to prevent local authorities acting against their interests we could prevent many disruptive placement moves, which have such a harmful effect on the outcomes of children in care. Opening up Section 8 orders would enable prevention of harm rather than simply redress after the event. It is a vital early intervention measure and this proposal will be an historic step forward for the rights of children in care. I look forward to hearing the Government’s response.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, in responding to Amendments 27 and 28, I pay tribute to the long-running commitment of the noble Earl, Lord Listowel, to improving the lives of our most vulnerable young people by ensuring that their voices are heard. As my noble friend Lady Walmsley said earlier, it is only if we listen to children in the child protection system and those who come into care that we will ensure that they are being effectively supported and safeguarded. In particular, children in care need to be able to challenge and influence strategic planning as well as day-to-day decisions taken about their lives.

For those in the child protection system, the revised government guidance Working Together to Safeguard Children makes it clear that the child’s needs are paramount and that children need advocacy as part of an effective child protection system. The Department for Education has also worked with the office of the Children’s Rights Director on the publication in August this year of the Young Person’s Guide to Working Together to Safeguard Children. This highlights that in child protection conferences and the child protection process children should be listened to and supported, including by being able to ask for an advocate to help them put their views across. To quote from it, social workers,

“should ask your views so that you can have your say on what should or should not be in the child protection plan. Remember, you can ask for an advocate to help you do this, if you want”.

I believe that the guidance strikes the right balance of clarity over statutory responsibilities, while allowing local authorities and professionals to develop professional practice in the best interests of children. I feel that guidance rather than primary legislation is the most appropriate vehicle for promoting advocacy support for children.

While advocacy can help and benefit some children, sadly one of the concerns highlighted in recent, tragic cases is that the social worker and other front-line professionals have sometimes not done enough to seek the views of children at the assessment or the child protection inquiry stage. I would not want at this stage to detract from the important responsibility of professionals to listen to the child by introducing in legislation an additional person with this responsibility.

I turn to advocacy for looked-after children. The Children and Families Minister meets regularly with groups of children in care and separately with care leavers. We recognise that many of them say that they do not have access to advocacy services and that, as the noble Earl said, provision is patchy. That is why the Government, as part of our commitment to improving advocacy services, have doubled the funding to them from £150,000 to £300,000. This year, we are supporting both the National Youth Advocacy Service and Voice to provide an advocacy service for looked-after children and care leavers. The services will include information and advice via telephone, enabling young people to access and obtain advice when they want it, and the allocation of an independent advocate to support and represent young people when they want it.

We do not think that further legislation in regard to the role of advocacy in children’s reviews of their care plans is necessary. The Government have already strengthened the role of the independent reviewing officer to give due consideration to the wishes and feelings of the child when making decisions with respect to the child. It includes a specific duty to ensure that a child understands how an advocate could help to support them at their care plan review meeting. We recognise that even more needs to be done, and that is why we are working closely with the advocacy sector and Children in Care Councils to enable all children to know their rights to have an advocate.

16:30

Most importantly, Ofsted’s new inspection framework of local authority child protection, children in need, adoption and looked-after children services is to be implemented from November. This new framework will examine how the social care system as a whole, rather than fragmented parts, helps, protects and looks after children. It will focus on the experiences of children and young people, including whether they have access to advocacy, and the difference that adults are making to their lives and that of their families. This will serve to highlight both good practice and areas where service must improve.

The noble Earl asked two specific questions. He asked whether I would agree to look at producing an advocacy handbook. I will ask my officials to look at these issues in consultation with key partners. We have not had pressure from local authorities or front-line practitioners around this issue, and would need to be convinced that there is a real need for further government guidance before agreeing to give this priority over other issues. We will look at it further. On whether we will collect data on the national provision of independent advocacy, we are not intending to introduce a new data requirement on local authorities to report to the department on the provision of advocacy, or how they listen to children. That is a matter for local practice, and it will be monitored and examined as part of Ofsted’s inspection framework. However, I note the noble Earl’s concerns and will discuss that further with my officials.

I turn to Amendment 65A from my noble friend Lady Stedman-Scott. The principle behind this is one that we have discussed on a number of occasions with Dr Roger Morgan, the Children’s Rights Director. I acknowledge the spirit in which the amendment has been tabled—to give courts the same power to issue a Section 8 order for a child in the care of a local authority that they have in respect of children who are not in care. However, what my noble friend proposes is unnecessary. There are separate provisions under Section 34 of the Children Act in relation to contact arrangements for looked-after children. We would not want to cut across the responsibilities of the local authority in relation to any decisions made by it about placement decisions in the best interests of the child. Section 8 orders are private law orders; they are used as a means of resolving disagreements between parents about the residence and contact arrangements for their children following separation or divorce. The reason why children in the care of a local authority do not come within scope of most Section 8 orders is that the local authority has shared parental responsibility for these children. As part of care planning arrangements, a local authority can decide a range of matters regarding the care of a child. That includes where the child should be placed.

I recognise that there are circumstances in which children in care are unhappy about decisions related to their placement and parental or sibling contact. To enable courts to make Section 8 orders, however, would fetter the ability of local authorities to make arrangements for the placement of children. As I have said, there are separate provisions in Section 34 of the Children Act 1989. The care planning framework already provides for contact arrangements. Local authorities have parental responsibility for children in their care and a duty to take account of a child’s wishes and feelings.

I hope that what I have said reassures my noble friend, and I would be happy to discuss this matter further with her if she so wished. I hope that I have provided reassurances to the noble Earl, Lord Listowel, my noble friend Lady Stedman-Scott and other noble Lords of our commitment to enabling children’s voices to be heard. I urge the noble Earl to withdraw his amendment.

[The Countess of Mar (CB)]

My Lords, I listened to the noble Lord very carefully. I note that the amendment of my noble friend Lord Listowel refers to,

“independent advocacy for the child in relation to any decision making meeting in the course of section 47 enquiries”.

I have a lot to do with young people who have ME. In many cases, not even the parents are invited to the decision-making meeting, and the children are never consulted. Can the noble Lord reassure me that this will not occur in the future? One particular charity, the Times Trust, has dealt with 90 such cases in the past 12 months, and each time the parents and the children are ignored—the decisions are made over their heads.

[Lord Nash]

I hear what the noble Countess, Lady Mar, says. They should be consulted and Ofsted should inspect that again. However, we will write to the noble Countess on this matter.

[Baroness Stedman-Scott]

I thank the Minister for his response to my amendment and I am delighted that he acknowledges the spirit behind it. I believe this to be worthy of more discussion, and I know that his officials have already promised that. On that basis, I shall not be pressing the amendment.

[The Earl of Listowel]

I also thank the Minister for his response. It seemed to me very sympathetic and reflected the very positive attitude of this Government towards the idea of advocacy and hearing the voice of the child. I saw that reflected in the practice of Edward Timpson MP when he was chair of the all-party parliamentary group on young people. I believe that he still regularly meets groups of young people in care—groups of younger and older people—as well as care leavers. I think that this sort of approach will make a huge difference to policy. If good advocacy can make a difference for one child through having contact with his siblings and the principle is proved that children should have such access, that raises the game for everybody and creates opportunities for other children with similar difficulties.

I was grateful to be reminded of the doubling of funding for advocacy by the Government from £150,000 to £300,000, and I am grateful for the Minister’s consideration of the idea of a handbook. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Amendments 28 to 31 not moved.

Schedule 1 agreed.

Clause 7: Contact: children in care of local authorities

Amendment 32

Moved by

[Baroness Hughes of Stretford]

32: Clause 7, page 5, line 30, at end insert—
“(2A) In subsection (1), after paragraph (d) insert—
“(e) his siblings (whether of the whole or half blood).””

[Baroness Hughes of Stretford]

My Lords, I am sure that Members of the Committee will recall that last week we debated the importance of kinship care and, unless there are reasons why this should not happen, the importance of children in care keeping in touch with members of their biological family one way or another. This amendment rehearses some of those arguments. Indeed, the importance of family contact and strengthening the potential for family contact for children in care will be a theme that I will return to a number of times as we go through the Bill.

The effect of Clause 7 is to clarify the existing law that any decision by a local authority about allowing a child in care—under a care or emergency protection order—contact with the parents or some other family member is subject to the local authority considering whether such contact would place the child at risk of harm. Obviously that is essential and, although the law probably currently provides for that, we have no objection to it being clarified here in Clause 7.

However, we think that if the Government are serious about the importance of continued family contact, they should go further and require local authorities to give specific consideration to enabling children in care to remain in contact with their siblings. That is the purpose of Amendment 32. We know that sibling contact has not always been a priority for agencies—certainly not the priority that it seems to be for the children themselves. We think that there is a need for the Government to enshrine sibling contact as a priority in the legislation.

There are two main reasons why we think that. First, 63% of children in care whose siblings are also in the care system are separated from them, so the vast majority of children in care who have siblings in care as well are not together. Those living in children’s homes are much more likely to be separated from their siblings than those in foster care, yet the sibling relationship is often the longest relationship in a child’s life, potentially offering the stability that is often absent from other aspects of the life of a child in care. The second reason is understandable: it is that young people in care themselves feel strongly that they generally have too little contact with their siblings. Some 85% of children in care thought it important to keep siblings together, and over three-quarters thought that councils should help children and young people to keep in touch with their brothers and sisters.

This amendment would make that sibling contact a priority in social work practice. I think we can all understand why continued contact with your brothers and sisters when you are in care is fundamental, yet it seems now that in many cases—the majority—siblings are separated and risk losing that contact, stability and link to their biological heritage. I hope that the Minister will accept the amendment. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I strongly support the amendment. As I think I said at our previous sitting, when I chaired the adoption committee we had two meetings with children, one with looked-after children and the other with children who were or were about to be adopted. Each group made it absolutely clear, particularly younger children—the seven, eight, 10 or 12 year-old children—how important their siblings were. They said to us that siblings were more important to them than parents. Some of them would have liked to have seen their parents; they all wanted to see their siblings. It was so sad; one little boy said, “I’m so worried about my brother. I don’t know what’s happening to him. Nobody will tell me and I’m not allowed to see him. I wake up at night wondering how he’s getting on”. That is not acceptable for children. The amendment would alert everybody to the importance of siblings, which is why I support it.

[Baroness Hamwee]

My Lords, I very much agree with all that has been said. I remember being struck by the strength of feeling expressed by the young people. At our previous sitting we talked about the importance of identity; contact with one’s siblings and understanding that family dynamic is another aspect of identity. I have been impressed by somebody outside the group of people whom the noble and learned Baroness saw, whose feeling of responsibility for her younger sibling was important to her to express and fulfil. By separating her from her younger sister—by being deprived of caring for her—she was being deprived of the expression of her own personality. That was of huge significance to her.

[The Earl of Listowel]

My Lords, I would also like briefly to support the amendment and give an example of how passionately young people in care feel about being separated from their siblings. Delma Hughes, who was separated from her five siblings, I believe, later went on to become an art therapist and work with young and vulnerable people. She felt so passionately about correcting the wrong that had been done to her that she set up a charity called Siblings Together. It has run for several years, organising holiday camps in the countryside and events at the Young Vic theatre, so that young siblings who may never see each other apart from on such occasions can spend a week or so together. That woman is a real example of how terrible it feels to young people when they are separated from their siblings, and how at least one of them has become a champion in the area and made a huge difference to many other young people who have gone through that experience.

16:45

[Baroness Perry of Southwark (Con)]

My Lords, I ask the Minister: why is this not already happening? It seems crystal clear that at least keeping siblings in contact with each other is common sense, is vital and makes emotional sense. I do not understand why there is a problem here. Why are children being separated when they go into care or adoption proceedings?

[Baroness Walmsley]

My Lords, I very much agree. As we have talked about the last three groups of amendments, it has occurred to me that we appear to be living in a parallel universe. Ministers stand up and, quite correctly, read out the situation as it should, theoretically, be. Although Ministers tell us in good faith what the situation is in theory, it is not happening.

The noble Baroness, Lady Hughes of Stretford, made a point which struck me as a little odd. She said that 60% of those siblings who are both in care and who are not together or seeing each other are in children’s homes. I understand that it might be quite difficult to get foster carers to take pairs of siblings because they might be prepared to take only one child, but it should not be that difficult to put sets of children together in children’s homes where there are multiple places. Might the Government consider doing some research to find out why that is? I would have thought that was the very place where you could keep groups of siblings. Could that be looked into?

[Baroness Howarth of Breckland]

My Lords, I support this very strongly. We should not have reached the position we have, but I have some understanding of how we have reached it.

I have talked to many young people over the years, and particularly remember two groups I saw, with the Children’s Rights Director, who talked about the way conflict in their families was relieved by the fact that they had siblings to share their sojourn and be a comfort when things were really grim. They were the people who were their in-group when all this was going on, so were even more important to them than their parents, who were often the enemy and doing the destructive things, while siblings were their protection. That is not always so: there are siblings who are damaging to each other. Professional decisions to separate siblings may be quite right, but they must be made properly, not by accident. I fear we have reached the position where it is by accident because of the way we arrange placements and the shortage of good ones. We have young people in adolescent groups because they are easier to manage with staff who can manage them and small units with small children, but many fewer family group homes than there were, so you do not have the mix of youngsters together. Managing a unit of very difficult young people is about training, and confidence.

I sincerely regret this, because I have heard heartfelt pleas, similar to the ones outlined by the noble and learned Baroness, Lady Butler-Sloss, from young people—particularly in court—saying, “Whatever happens do not separate me from my siblings”. It is the siblings, not the parents, who mean everything to them.

It is a serious practice issue. I am not sure how legislation would make it right, but this amendment might be a step towards it. I hope the Minister will assure us that Ofsted might look at this when they look at the organisation of residential care in various authorities and how families are planned for. I am a social worker so I know how easy it is, under pressure, to delude yourself that it is the best answer for the child when it is actually the best solution for you.

[Baroness Benjamin (LD)]

My Lords, I support this amendment because as a child I was separated from my siblings for a while, which was quite customary. It happened in the Caribbean, but it is the same experience no matter in which part of the world we are. I know how important it is to feel that we can speak to our siblings if we are going through some trauma in our lives. Children from diverse backgrounds who live here in Britain go through hell almost every day. I always say that their life is like a marathon. To have siblings there to help with bonding and to give confidence to face the world is terribly important. I am here to passionately support this amendment because of personal experience.

[Lord May of Oxford (CB)]

I turned up explicitly to support the amendment and am reassured that I need not have done. I hope that people will take heed of those remarks and recognise that, in addition to the amendment, somebody should be looking at the idiots who are doing what they are doing.

[Baroness Eaton (Con)]

My Lords, at the moment considerable consultation is taking place with local authorities on children’s homes, particularly in the area of safeguarding and bringing in new and helpful ways of running them. Is it possible, within that consultation, to consider the relationships of the children in the home, and why siblings are separated? Could that be part of the appraisal of the effectiveness of running children’s homes?

[Lord Nash]

My Lords, I thank the noble Baronesses, Lady Hughes and Lady Jones, for raising this extremely important issue. The amendment gives me the opportunity to say that I have published draft regulations for your Lordships’ consideration. I completely agree that contact between siblings can be of great importance and extremely beneficial—this is not in dispute. However, I hear what the noble and learned Baroness, Lady Butler-Sloss, my noble friends Lady Hamwee, Lady Walmsley and Lady Benjamin, the noble Earl, Lord Listowel, and the noble Lord, Lord May, have said. I am afraid that we do not agree that amending Section 34 is the right thing to do. The Family Justice Review recommended that the Government should consult on whether Section 34 should be amended, along the same lines as proposed in this amendment. We did just that. Drawing on the experience and knowledge of a number of experts, we agreed that amending the law was not the right thing to do, and that more work needed to be done to improve practice and facilitate positive contact between siblings.

When the child’s local authority is considering what contact there should be—whether with the child’s parents or siblings—the authority must ensure that it is consistent with safeguarding and promoting the child’s welfare. In doing so, the draft regulations require local authorities to have regard to the child’s care plan. We consider that that is the right approach. Current regulations already require local authorities to consider and review contact arrangements with siblings. Local authorities are under a duty to include in a child’s care plan details of how they will meet the child’s needs in relation to all family relationships. This includes arrangements for promoting and maintaining contact with siblings.

[Baroness Hughes of Stretford]

I wonder whether the Minister could develop his argument and try to convince us. First, what was the reason given by the respondents in that consultation as to why changing the law was not the best course of action? Secondly, picking up on the point made earlier by the noble Baroness, Lady Walmsley, why does the Minister think the current requirements on local authorities in the regulations, to which he is referring, are patently not working, as so many children in care are losing contact or are not placed with their siblings?

[Lord Nash]

I am grateful for the noble Baroness’s further question. We consulted a number of experts, including Dr Beth Neil, Fran Fonseca, Jack Smith, Linda Jones, Roger Morgan, Julie Selwyn and Alan Rushton. They felt that this was a matter of practice and that more work needed to be done to improve practice. I agree, and I share the noble Baroness’s concern about this. In the light of the feelings expressed today, it is a matter that we need to look at again, but our current thinking is that it is a matter of practice and not a question of changing the law.

When siblings are looked after but are not placed together, their individual care plan must set out the arrangements made to promote contact between them. The care plan must be reviewed regularly, which allows for the arrangements to be revised as the child’s circumstances change. Sibling contact is already provided for in the Children Act 1989, and the court must consider contact arrangements before making a care order. The looked-after siblings can apply to court for contact. We have specifically ensured that the court continues to consider contact arrangements through Clause 15.

As for the question about children in care homes, which was raised by my noble friend Lady Walmsley and the noble Baroness, Lady Howarth, I can give the commitment that we currently have a programme of work to look at how to improve the quality and support of practice in children’s homes. I shall ask my officials to look specifically at the issue of siblings being placed together as part of this work. It is true that Ofsted should look at how siblings are placed in children’s homes.

[Baroness Howe of Idlicote]

I wonder whether I could pursue something that has been said. On the question of whether the children’s officers throughout the UK are in support of this system—and I am thinking particularly of the requirement that the English Children’s Commissioner is clearly going to have much more independence than she currently has—is this an area that needs looking at? Could the Minister clarify that?

[Lord Nash]

It is something that we can ask the Children’s Commissioner to look at. We will talk to her about this. As my noble friend Lady Walmsley said, perhaps this is an area where we should do further research. I shall ask my officials to consider this. I think that the noble Earl raised that point as well. I have noted the strength of feeling on this point today, and we will take it away for further consideration. Nevertheless, I ask the noble Baroness to withdraw the amendment.

[The Earl of Listowel]

Before the noble Baroness does so, it occurs to me that the matter of staying put might be helpful in this arena. If there are two siblings, one of 16 and one of 17, in the same foster care household and then one turns 18, enabling the foster carer and the young person to stay together past the age of 18 might enable that sibling relationship to endure further. I do not know what the experience is there, so if the Minister can help with any information with regard to whether there is a significant factor in helping young people to stay put—if that helps in the issue of keeping siblings together—I would be grateful to him. Perhaps the voluntary agencies know of examples in that area; again, I would be grateful to hear about that.

[Lord Nash]

We will note the noble Earl’s question and feed it into the considerations to which I referred.

[Baroness Hughes of Stretford]

First, I thank all colleagues who have contributed to this debate, because their contributions added considerable weight to my introduction. There was obvious support across the Committee for this amendment and the issue. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Hamwee, were able to give us some direct testimony of children, and the noble Baroness, Lady Howarth, as ever, gave us her insight into what is going wrong with the system and why things are as they are.

I am pleased that the Minister said that he has heard the strength of feeling on this issue. He made two points in response. The first was that a number of experts had said that because this was a matter of practice, changing the law was not the right way to try to improve contact between siblings in those care cases. There is a dynamic relationship between the law and practice, is there not? We frequently set out what professionals ought to do in legislation. Yes, we may flesh it out further in regulation, but practice is often defined in legislation. His second point was that we already have regulations that require that. Clearly, they are not working when so many children in care—by accident, as the noble Baroness, Lady Howe, said; it is not intended—are by default losing contact with their brothers and sisters.

17:00

For clarification, in response to the noble Baroness, Lady Walmsley, what I actually said, which has come from the Children’s Rights Director, was that of those children in care whose siblings are in care, 63% lose contact with their siblings. The noble Baroness is right that this is counterintuitive, but apparently those living in children’s homes are much more likely to be separated than those in foster care. One would not expect that, so there are some further questions to be asked in that regard.

The Government must take this away to consider it. The current regulations are clearly not working to the benefit of children in the way that they should. I look forward to the Minister communicating with us and returning to the issue in later consideration of the Bill so, for the moment, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Clause 7 agreed.

Amendment 33

Moved by

[Baroness Young of Hornsey]

33: After Clause 7, insert the following new Clause—
“Care leavers’ access to personal information
(1) It shall be the duty of every local authority and voluntary organisation that looks after or provides accommodation for a child or young person to maintain such records as prescribed by regulations.
(2) Regulations under subsection (1) may provide for the transfer of records held by a voluntary organisation comprehensive information from the records relating to their personal history, family background and time in care.
(3) A care leaver has the right, at his request, to receive from the local authority or voluntary organisation comprehensive information from the records relating to their personal history, family background and time in care while they were a looked after child or young person, and such information will include personal sensitive data and also identifying information about other family members, acquaintances and significant others.
(4) Subsections (1) and (3) do not apply to a request for information in circumstances where the local authority or voluntary organisation is authorised by regulations to withhold the information or any part of it.
(5) Local authorities and voluntary organisations have a duty to provide appropriate and reasonable support on request, including information and advice, along with explanations of the process of redaction, the offer of appropriate counselling and access to intermediary services to care leavers having received their care records.
(6) The regulations may provide for the circumstances in which the local authority or voluntary organisation holding the records may arrange for another local authority or voluntary organisation near the care leaver’s home to provide access to the records and support.
(7) In this section, “care leaver” refers to a person aged 16 and over who, while they were a child or young person, was in the care of or looked after or accommodated by a local authority or voluntary organisation.
(8) It shall be a defence to any allegation of unlawful disclosure of data under the Data Protection Act by the data controller, if it can be shown that the data controller has made a reasonable examination of the data and has satisfied himself as to the need to disclose data and identities of individuals whose consent has not been obtained under section 7(4) of the Act having regard to the needs of the care leaver as set out elsewhere in this Act.”

[Baroness Young of Hornsey (CB)]

My Lords, I start by declaring an interest as someone who has had direct experience of the childcare system and of accessing social services care records.

This amendment is informed by the experience of care leavers and by professionals in the Access to Records campaign group, which comprises, among others, the Care Leavers’ Association, the British Association for Adoption and Fostering, the Association of Child Abuse Lawyers, the Childcare History Network, the Post Care Forum and Barnardo’s and is also supported by the charity TACT.

Whether they have spent all or part of their childhood and/or adolescence in the care system, for too many the current system simply is not working in a consistent, helpful way. At the moment, care leavers apply under the Data Protection Act for access to personal information held in care records, but unfortunately the DPA is often misinterpreted by local authorities, with some organisations severely restricting the information made available. There are too many examples of care leavers receiving such incomplete and heavily redacted records that their case histories are rendered virtually meaningless. Furthermore, the service given by local authorities is erratic and inconsistent: some are enabling and supportive while others are bureaucratic and obstructive. Some seem so concerned about negligence claims and media headlines that their position is defensive from the very beginning.

The relationship between practice and legislation was brought up in discussion on the previous amendment, and it is key here, too. Our argument is that, although there are regulations and guidelines in place, they are not working sufficiently well. Before I go into the detail of the amendment, I want to say something about the rationale behind it.

Many of the points made by the noble Baroness, Lady Hamwee, last week in relation to Amendment 25 resonated with me, because very similar issues concerning identity, belonging and knowledge of family history are relevant to this amendment. The question, “Who am I?”, is fundamental; it is a question necessary for us to recognise our sense of self and our status as a distinctive and unique human being. We understand that responses to that question are highly complex: we are the sum of our experiences and memories, and of what other people tell us and how they respond to us. Some experiences are indelible and remain with us through memory; some experiences, even though they are an essential part of our experience of the world, may none the less be forgotten, especially if they have produced trauma of one kind or another.

If you have been brought up in care, you come to think about what kind of person you are and where you have come from, asking, “Who am I?”. However, these questions may be unanswerable. Who is there to tell you at what age you accomplished something or about a specific difficulty you had, or the circumstances of your early life? How is it possible to accumulate the kind of knowledge about yourself that people brought up in conventionally caring situations take for granted? It may be your story and your journey but it seems to belong to the state in the form of records, whether they are hand-written, type-written or whatever.

Several thousand people ask to see their records and many of these requests come from people in their middle or later years. The lifelong needs of adult care leavers are at least as pressing as those of adults who have been adopted, although this is rarely recognised in respect of access to care records and the aftermath. The DPA enables care leavers to see personal information about them on their care files. The problem is that when asking a local authority to see these files, care leavers’ experiences range from a response which is at best enabling and supportive and at worst bureaucratic, restrictive and inconsistent with the corporate parenting role. There are some examples of good practice but we want the Government to ensure that local authorities work with the Information Commissioner’s Office to enable care leavers to have all the personal information they are entitled to, and to exercise their discretion regarding third-party information in a less restrictive way.

As I have suggested, despite the requirements already in place, we think that the standard and quality of case-record keeping is not consistent across the children’s services sector. Organisations need to be mindful of keeping older records safely and under secure conditions, whether they are paper, scanned or microfilmed. We have heard too many instances where organisations with poor archival records and retrieval systems respond to the care leaver’s request for personal information with a statement that the files or records cannot be found, without any sense of the profound impact that that can have on the post-care adult. Without support, the persistence necessary to obtain care files places a substantial psychological and emotional burden on the individual, who may already be very isolated. Even if they are not isolated, the impact of disturbing revelations can have repercussions on current relationships and families.

We also need to make sure that we can track where records have moved to: for example, a children’s home might have been closed or a voluntary organisation wound up or absorbed into another organisation. Not being able to find records on that basis is also frustrating and works against care leavers. Regulations could provide a framework for the coherent transfer of care records systems across childcare service providers.

Our evidence suggests that the response from the authorities is often not focused on the rights and needs of the individual care leaver. Again, this echoes other points that have been made in respect of children. Although we are clearly talking here about adults, they still have rights and needs as care leavers that are not being respected by the rather defensive attitudes often displayed by local authorities, which seem to be worried about potential criticism or fearful of litigation.

Similarly, when it comes to sensitive personal data, care leavers can find that many data controllers interpret existing provisions narrowly and that the information withheld significantly reduces clarity about the information they want to access. There are circumstances where organisations can withhold information, and there are plenty of guidelines on that. However, again we come to this point: they are not being implemented consistently or necessarily in the best interests of the adult care leaver who is seeking to find out more about their past, particularly when it comes to relatives. Even if somebody gets hold of their care records, there is then the issue of whether they understand how and why the data controller has made decisions about what information is provided and about what has been withheld, redacted or left out. In relation to that, there is also the need for adult care leavers to at least be offered the opportunity to have some kind of support in going through what is often a difficult situation to navigate.

We understand that some data controllers feel nervous about making disclosures of a sensitive nature that particularly affect other people’s personal backgrounds—for example, a mother or father or other relative—and we want to make sure that data controllers have adequate protection in such circumstances, hence the latter part of the amendment. To summarise, care leavers seek information about their past for all kinds of reasons. It may be that they are starting a new relationship or becoming a family, or perhaps they have been bereaved.

I should like to give a flavour of the experiences of some adult care leavers who have been in touch with, particularly, the Care Leavers’ Association. In one instance, a care leaver—let us call him Arthur—wanted to connect with his records because he was coming to a new phase in his life. He was told that he had come into care because his mother was admitted to hospital but he was not told why. It was considered that the reason for her admission was private and that he had no right to know. It turned out that his mother had suffered from a long-term, severe mental illness.

A second example is of a social worker who took a boxful of records, unsorted, and handed them over to someone on their doorstep and went away again. So there was no support or help through that difficult situation at all.

Another care leaver said:

“I am now at the stage in my search of having applied to Council X three times, Council Y once … Council Z and Council Q as well as making numerous Freedom of Information requests about the children’s homes and other institutions I was kept in as a child”.

Again, the implication of this is that if your own family and children ask you, “What was it like? Where are the photographs of you? What was your family like?”, and you do not have that information, having to persistently knock on the door can be very debilitating.

The Care Leavers’ Association says:

“Care Leavers above a certain age are … a largely invisible group whose rights and needs to access basic information about their family background and childhoods are continually being denied. This discrimination needs to be addressed to ensure that they can access crucial information that may profoundly affect the decisions they make in life. Care leavers’ fundamental human right to access their social care files should be recognised in legislation and fully supported so that they can make sense of their past and go forward into the future”.

I beg to move.

[Baroness Massey of Darwen]

My Lords, I strongly support the amendment of the noble Baroness, Lady Young. This is a very important issue. I applaud her efforts in challenging the current problems for care leavers in accessing their records and I respect her poignant experiences and her descriptions of the loss of identity, the “Who am I?” and the journey.

The treatment of care leavers can be about blatant discrimination and defensive responses. I have been told by two people how much distress and frustration this has caused them. As the noble Baroness said—I want to underline some of these matters—there are many forms of such discrimination. Those that I have heard of relate to organisations which have poor information, or have a reluctance to seek out information and respond that the records cannot be found—that they have lost the records. In one case, I heard that records had been moved. As the noble Baroness said, children’s homes close and organisations merge. Where do these records go? How does the care leaver find them? What help is there for them to find them?

Some local authorities or voluntary organisations become defensive or evasive, despite the fact that a care leaver has the right to access personal information. The request for information may also involve another person who has to give permission, although it may be deemed possible to give the information without permission, but some organisations which control those data may interpret the rules very narrowly. I know of one person who is still trying to access information after a year of trying. Redaction of records may occur, as the noble Baroness said. In this case, surely local authorities and voluntary organisations should provide explanations and offer counselling and support to those who receive their care records.

There needs to be flexibility about who can provide the information. People change residence. It should be possible for another local authority or voluntary organisation near where the care leaver lives to provide information and support the care leaver. People who have been in care may be desperate to access information about their life—just as those who have been adopted may wish to access records. To remove part of someone’s life history is surely cruel and unnecessary. I look forward to the Minister’s response.

17:16

[The Earl of Listowel]

I strongly support the amendment moved by the noble Baroness and speak to my Amendment 41. I support the amendment because of the importance of human curiosity. In recent child case reviews commentators have criticised professionals because they simply were not curious. They did not ask, “Why was this child bruised? Why did somebody not ask why the child kept coming back?”. They complained about the lack of curiosity among professionals. When Anna Freud, back in the 1930s, spoke to teachers about how to be a good teacher, she said that the most important quality was curiosity. She said, “We need you to be curious about the child, think about where he is, where he is going, and how to get the child to go there”.

Curiosity is so important and is reflected in our culture. Stories from Genesis or of Michelangelo’s most celebrated works of art are about where we come from. Another example is Haydn’s “Creation”. We are fascinated about our origins. The noble Lord, Lord May, is absent now, but he knows that we spend billions on finding out about the origin of the universe. How did we come into being? I am concerned that to deny young people the opportunity to find out where they come from is a way of undermining and frustrating their curiosity. It is a way of stifling their wishes and interest in the world if you say, “No, you can’t know where you come from; no, we will not help you with that”. This weekend I was looking at some photographs of my father from the 1950s which I had never seen before. I found them inspiring. I very much identify with the concerns of the noble Baroness and it was a privilege to hear her talking about her own experiences in this area. I hope that the Minister will give a sympathetic reply to her amendment.

My amendment deals with support for young people leaving the care system and allowing all young people to have access to personal advisers up to the age of 25. Currently, past the age of 21 it is restricted to young people in training and education. I give the example of a young man, Ashley Williamson, who is a care leaver of 21 or 22. He left care at the age of 16. I have met him on a number of occasions recently. He has chaired the All-Party Parliamentary Group for Children and Young People in Care; he has provided advice on matters around sexual exploitation of children in children’s homes; and he left care himself at the age of 16 and wanted nothing more to do with the system. He washed his hands and went on with his life. However, at the age of 20 he connected with his local authority again and asked for help. He found a fantastic personal adviser who was very supportive and helped him to get a fantastic home for himself. Now, in his early twenties, he has a good, solid base. He has been very helpful to me and I am sure he will be helpful to other young people in care because he is articulate, intelligent and thoughtful and has had that experience.

For so many young people, early trauma means it takes them longer to do what many of our own children might do. Give them the time to make mistakes and then to realise they need to come back and ask for help. If I remember the story correctly, a young man who was a foster child of a social worker, Kate Cairns, was, as the age of 19 or 20, in prison and addicted to very nasty substances. He was a very difficult person to deal with and yet, 10 years later, at the age of 30 he had his own family, was employed and was providing for his children. Given time, he changed.

Let me give more detail on this amendment. Most people continue to receive love, advice and, perhaps, financial assistance from their parents into their adult lives and the average age for a young person leaving home is 26. However, young people in the care system are often thrust into instant adulthood at just 16 and, like most 16 year-olds, they tend not to have the life skills to be able to cope independently at this age. Of course, they often find adult life especially hard due to the traumatic childhoods they have endured. So young people leaving the care system are disproportionately more likely to end up getting involved in crime and drug abuse and very often struggle to achieve good qualifications. Our failure to help this group of people, for whom we have a clear responsibility, leads not only to personal tragedy but to great cost to society.

At present, young people leaving the care system are designated personal advisers and have pathway plans drawn up for them. These help to smooth their journey to adulthood but, at present, are only available until they are 21 unless they are in education or training. Young people who are not in training or education also need support. I recommend that personal advisers be made available to young people up to the age of 25, whether or not they are in education or training. These young people need that kind of support even more. This would ensure that vulnerable young people leaving the care system receive the ongoing support and advice that other young people receive from their parents and take for granted. I look forward to the Minister’s response.

[Lord Northbourne]

My Lords, I am not going to make a speech but I strongly support the noble Baroness, Lady Young. The more I learn about and think about disadvantaged young people, the more I realise that the question they are always asking themselves is, “Who am I?”. Their second question is “Am I a person who could succeed?”. Some of your Lordships may remember the two Ofsted reports about schools which were outstandingly successful although the children were from very disadvantaged backgrounds. The three principal things those schools had in common were: outstanding leadership, very committed staff and, thirdly, every child believing that they could succeed.

[Baroness Stedman-Scott]

My Lords, I beg to move Amendment 45, which has three parts.

[The Countess of Mar]

My Lords, I am sorry to interrupt the noble Baroness, but may I suggest that she does not move it at this stage but speaks to it and that she does not move her amendment when it is called? She does not withdraw it at this stage either?

[Baroness Stedman-Scott]

Thank you. This is the first time I have done this. Forgive me, I will start again.

I will speak to Amendment 45, which has three parts. It seeks to ensure that children leaving care have the best possible support into adulthood. I strongly support the points made by the noble Earl, Lord Listowel. If every young person had a personal adviser to take them on their journey from youth to adulthood, our hearts would sing. Indeed, as I said to the Minister on a visit last week, we would think we had died and gone to heaven because of the difference we could make to their lives.

I strongly support Amendment 38, tabled by the noble Earl, Lord Listowel, to allow young people to remain in foster care until the age of 21. This amendment is vital as it gives looked-after young people stability into adulthood and allows them to keep the relationship they have built up with their foster carer over many years. The more support they have, the better the outcome and the more hope for their future.

However, I also worry that this measure cannot provide an answer for all looked-after children, particularly the most vulnerable. For this reason, I have tabled three supplementary amendments. These are probing amendments intended to question inconsistencies in our current policy towards children leaving care.

I declare an interest as the chief executive of Tomorrow’s People. Day after day, young people who have not made that transition come to us. We have to try to rebuild their lives, put them back together and get them on the right path. The cost of this is extensive, whereas if we spent the money earlier it would be better for them and for the country.

I shall speak, first, to Amendment 45A. This would guarantee to young people who make an early exit from care at 16 or 17 the ability to return to a foster or residential care placement if their return home or move into independent living breaks down. At present, the door closes behind care leavers when they exit care early, allowing no recognition that this may be a mistake. It is crucial that we give young care leavers the safety net that all other young people enjoy.

I am aware that under the Children Act 1989 local authorities must already accommodate any 16 or 17 year-old who is homeless. However, at present the law does not require that the accommodation has a supported element. This means that if a young person leaves care at 16, returns to their birth family and the placement breaks down, as an estimated 50% of returns home do, there will be no entitlement to return to foster or residential care. Similarly, if a young person decides to move into independent living and struggles to live alone and manage a tenancy, he or she is likely to be given a place in a hostel or a new flat when what is really needed is a more supported option.

Young people who leave care at 16 and 17 are extremely vulnerable. They are the most likely to have incomplete education, be unemployed, have unstable housing and experience drug and alcohol misuse. I know that the law has previously recognised this fact as the Children and Young Persons Act 2008 states that children should not leave care before 18 unless they are deemed ready by an independent reviewing officer. The logic of this is that if a child is under 18 and not ready to live independently we must continue to support them. For children who have left care and shown that they are not ready to live independently, the same logic must apply. It is not unreasonable that we should try to guarantee these very vulnerable young care leavers the chance to return to a supportive environment.

The second amendment I shall speak to is Amendment 45B. This aims to question how we treat children leaving residential care. Amendment 38, tabled by the noble Earl, Lord Listowel, would extend foster care to 21. While this has received national funding for pilots, had explicit backing from the Children’s Minister and is already in some stage of implementation at local authority level, there has been no mention of what happens to the roughly 2,500 children who exit residential care every year. This is a very vulnerable group of young people with challenging needs. For example, 62% of young people in children’s homes have “clinically significant” mental health difficulties, and 74% of young people in children’s homes have been reported to be violent or aggressive in the past six months. These young people are the most likely to struggle to sustain a tenancy and live independently yet they are also the most likely to make an early move to independent living. Currently, more than half—56%—of children in residential care leave care at 16 or 17 and the remainder will leave on their 18th birthday.

On moving to independent living, they lose both the supported environment and the relationships that they have built up with their carers. It is crucial that we offer children in residential care the same opportunities that children in foster care have to remain supported until 21.

17:30

I understand that there are barriers to extending residential care—primarily the cost of such provision. When I am doing my work at Tomorrow’s People, people come up with many ideas and the first thing that other people say is, “Oh, we can’t afford it”. If we talked about that before we talked about the solution, we would never do anything. The Minister knows that I am absolutely sure that there are more innovative funding models to enable that provision to be put in place. I stand ready to do anything I can to make that happen because the costs of abandoning these young people are likely to be far higher. This is a probing amendment motivated by a pressing problem. We wish to hear the Government’s views on how we can support children leaving residential care.

Finally, I shall speak to Amendment 45C. This amendment would ensure that local authorities provide all care leavers with the resources to stay in a new foster, residential or semi-independent placement until 21 if they wish to do so. It is aimed at care leavers who are not able to stay in a former foster or residential placement but still wish or need to be supported. Although remaining in a former care placement is likely to be the ideal option for many looked-after young people, as it preserves existing relationships with carers, this is not always possible. Rather than forcing young people, who are unable to remain in their current placement into independent living, the opportunity of a supportive placement should still be offered.

The new supportive placement could be a semi-independent placement, such as supported lodgings or university-style accommodation. On some occasions, it could be a new placement in residential or foster care. What is important is that we find the right options for all care leavers. Whether it is remaining in a former placement or finding them something new, none should be left unsupported.

I appreciate your Lordships’ willingness to consider these amendments in the context of the Bill so that we can extend the logic of the noble Earl’s amendment on remaining in foster care, as I stated at the outset. To sum up, these are our most vulnerable children, whom we cannot allow to fall through the loopholes of provision.

[Baroness Hamwee]

Perhaps I may briefly put on record my support for the amendments, in particular for that of the noble Baroness, Lady Young. It struck me, listening to those who spoke in support of it, that we are talking about not casual interest but real need on the part of the children and young people concerned. It is important to understand that.

[Baroness Howarth of Breckland]

Perhaps I may say something briefly, going back to the amendment of the noble Baroness, Lady Young of Hornsey. What has happened to good recording? In the distant past when the Data Protection Act came into being, I was involved in writing some of the guidance—it is such a long time ago that I do not think I have a copy of it or any reference to it—about how data should be made available and where we should redact the information that should be kept separate. Good recording demanded that there were separate parts to the record which were absolutely clear and identified, so that if there was an appeal, someone could look at the separate parts of the record.

What has happened, I ask the Minister and local authorities, to personal story books? What has happened to the need to keep packs of photographs, which used to happen when I was in children’s departments and, early on, in social services? What has happened to those good social workers who shared their recording? I shared my recording with those people I was working with, so they had a copy—unless there was a child protection issue which could not be shared. Therefore you asked other people involved for their permission at the time to share information.

Some of those principles of recording have been lost over time. Perhaps Ofsted could look at the principles of recording these days. I am not saying that it is a simple issue. It is not; I understand how complex it is; but I think that some of the basic principles have been lost. If we returned to some of those, the issue would not be a forward issue. Clearly we have an issue going back for those people who find themselves unable to access records. I have seen records which are so redacted that they are unintelligible. I have had to go through them as an information officer. I felt so strongly about the professional issue that I wanted to intervene briefly.

[Baroness Howe of Idlicote]

My Lords, I congratulate the noble Baroness, Lady Young, on her brilliant exposition of her amendment and the reasons behind it. Others have said better than I can how impressed they were with it.

However, I also want to congratulate the noble Baroness, Lady Stedman-Scott, because her amendments are all very important. I hope, too, that if they are put to the vote they will receive the support that the amendment of the noble Baroness, Lady Young, obviously will get. I hope very much that they are supported.

[The Earl of Listowel]

My Lords, I omitted to comment on the amendments of the noble Baroness, Lady Stedman-Scott. I support her welcome amendments. Of course, children in residential care are among the most vulnerable. Unfortunately, the way it works is that there tends to be a placement in foster care and, if that does not work out, then it is in residential care several broken placements down the line. So the ones with the most complex needs are often in residential care and they need the most support.

I welcome what the noble Baroness has said. There is an issue about price and other issues around it. One solution offered by Jonathan Stanley, a former chief executive of the National Centre for Excellence in Residential Child Care, is to pair up young people in residential care with foster carers so that—one can do a staying-put—one can ensure that there is a seamless move from a residential setting to a foster setting for at least some of these young people to the age of 21.

Norfolk is a very good exemplar of break-home practice. There they have supported housing right by the children’s home so that there is little movement for the children and they can feel in touch with the staff in their old setting. The noble Baroness has made some extremely important points and I look forward to hearing the Minister’s reply to her concerns.

[Baroness Benjamin]

My Lords, I support the amendment of the noble Baroness, Lady Young. I would like to draw the Committee’s attention to the case of a young man I know who was brought up in care for many years. For the first 49 years of his life he kept wondering who he was and where he came from. This affected his relationship with his children—when he eventually had children—and with his wife, who had to deal with his depression. He had a loss of confidence, did not believe in himself and did not feel worthy. After much searching he eventually found out who he was and it completely changed his outlook on life. It changed his mental well-being. He got a better understanding of who he was and started to accept his situation in life. That is why I believe that it is an abuse if we deny any young person information which can help them come to terms with their identity, culture and background if they wish to do so.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have had a good debate and I do not intend to talk at any length. However, I wish to make a few quick points.

First, obviously, I welcome and endorse the points made by the noble Baroness, Lady Young. She made an eloquent speech last week about the importance of identity and she has raised the issue in a helpful way today in a different but complementary context. It is no doubt important for children as they are growing up and becoming fully rounded adults to know about their history. It is their history and it is their right to have access to it. We all accept that point.

The second point to make is that we have talked about children and young people leaving care but very often adults can be well into middle age before they really begin to question their identity and want to search for that information. That provides a particular challenge for the people who keep the data because we are talking about keeping it for a very long time. Nevertheless, it is still people’s right to have access to it.

To pick up on a point made last week by the noble Baroness, Lady Hamwee, about people in care who had been bereaved, having lost their parents, one would have hoped that somehow or other we could have lined up all these rights to information and brought them together. We are talking here about the same sorts of issues coming up in a number of different contexts. I would have hoped that somewhere in the midst of all that would be a universal right to that information and that we could address it in that way rather than in a piecemeal way.

Thirdly, I was alarmed to hear noble Lords today talking about data being lost, or indeed being dumped on a doorstep. There is a real issue here concerning the security of the information. It is rather alarming, and I absolutely agree with the noble Baroness, Lady Howarth. What has happened to all those accurate expectations of privacy and security and of records being kept properly? You cannot help but wonder whether there is going to be a scandal at some point with all this stuff coming to light, having been left on a rubbish dump somewhere. I do not think that anybody here has a sense of reassurance that this information is being kept securely in a proper place. Perhaps the noble Lord could address that and say what the requirements are for keeping the information secure.

I should just like to add my support for the amendment. The noble Baroness has raised a very important point, as have the noble Earl, Lord Listowel, and the noble Baroness, Lady Stedman-Scott. In particular, I hope that we will get a chance to debate the whole question of staying in foster care until the age of 21. I know that my noble friend Lady Hughes will respond in more detail on that but I want to pick up one point which the noble Baroness touched on concerning the distinction between foster care and residential care. Clearly, there is a distinction and we have to be careful not just to lump the two issues together. There is a difference for young people leaving residential care, which is, after all, still formally an institutional provision. What those young people really need is a phased transition to independence, rather than just the requirement to stay on until they are 21. They need help over a period of time to find their feet and to find independence. Therefore, while the noble Baroness raised absolutely valid points, I think that we need to separate them out and make slightly separate provision for them. I know that we will debate this in more detail when we come to Amendment 38. Apart from that, we have had a very good debate and I thank noble Lords.

[Lord Nash]

My Lords, so far as concerns accessing information for looked-after children and care leavers, I share the convictions of the noble Baronesses, Lady Young, Lady Massey and Lady Jones, the noble Earl, Lord Listowel, the noble Lord, Lord Northbourne, and my noble friends Lady Hamwee and Lady Benjamin that all young people should be able to access their records. However, we believe that this is a matter of practice rather than legislation. As the Committee will hear, our regulations on this are clear.

Regulations require the local authority to open a case record in respect of each looked-after child. So, for example, a child seeking information referring to them that is held within a foster carer’s records could make a subject access request to see that information. Care leavers are entitled to access their records, regardless of whether they were in foster care or a children’s home.

Our transitions guidance states that local authorities must assure themselves that agencies which contribute to the young person’s pathway plan understand their responsibility to make arrangements for secure storage of documents containing personal information about care leavers. Local authorities have a duty to retain records for 75 years from the birth of a child. Under the Data Protection Act 1998, people who were looked after have a right of access to personal information held by their responsible local authority, fostering service et cetera.

17:45

The new Ofsted framework, which comes in from November, says that:

“Care leavers are provided with information … about their legal entitlements such as access to their records”,

and Ofsted will look at the quality of the records. We share noble Lords’ concerns that all young people should have access to their records but we do not consider further legislation as the most effective way to achieve this. I have asked my officials to meet the noble Baroness, Lady Young, and the Care Leavers’ Association to look at how we can improve current local authority practice in this area—including in relation to the state of the record-keeping, which the noble Baroness, Lady Howarth, and the noble Baroness herself referred to—and to report back to the Children’s Minister and me.

I turn to the amendment tabled by the noble Earl, Lord Listowel, on providing welfare support for care leavers. The Government are committed to ensuring that care leavers receive the best platform to make their way in life but we do not think that extending Section 23C of the Children Act is the way to improve existing practice. Statutory guidance on care leavers already sets a clear expectation that local authorities continue to stay in touch and support their care leavers until age 21, and beyond if they are in education or training. Local authorities should respond to requests by assessing the young person’s needs and preparing a pathway plan.

We intend to strengthen statutory guidance to make it absolutely clear that local authorities should ensure that all their care leavers—whether or not they have indicated a wish to return to education—are aware of their entitlement to a personal adviser up to age 25, if they wish to engage in education. That guidance will make it clear that even where a care leaver has problems that are a barrier to their currently returning to education, and which may mean that they will not be able to return to it for quite some time, they should still get the support they need to overcome these problems.

Several amendments have been put down by my noble friend Lady Stedman-Scott about the importance of care leavers having the ability to stay on in their placements until age 21, whether that is in residential care, in supported placements or with their former foster carers. I agree that this can be particularly important for those remaining in education. We want local authorities to provide all young people with a menu of options to choose from. The Minister for Children and Families wrote to all directors of children’s services last October, urging them to ensure that young people are always placed in safe and suitable accommodation that meets the individual needs of care leavers.

The Committee may be aware that the revised Ofsted inspection framework which comes into practice in November this year has a specific focus on the quality of leaving care services. This will include an assessment of their accommodation. Being able to stay in placements beyond 18 is mentioned within one of the grade descriptions for the care leavers’ judgment. I am pleased to inform your Lordships that the department is also funding Catch22 to deliver a project on improving support to care leavers from children’s homes—

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I apologise to the Minister but a Division has been called in the Chamber, so the Committee will adjourn for 10 minutes and resume not before 5.58 pm.

17:49

Sitting suspended for a Division in the House.

18:01

[Lord Nash]

My Lords, I am pleased to inform noble Lords that the department is also funding Catch22 to deliver a project on improving support to care leavers from children’s homes, including looking at how providers can offer an environment in which young people from children’s homes can benefit from staying put-type arrangements.

On the question of 16 and 17 year-old care leavers returning to care, the statutory framework states:

“Local authorities should use joint protocols to ensure that: there is flexibility to enable young people to return to more supported accommodation if they are not coping with independent living … Provision and partnerships should be developed in such a way as to permit young people to move to other accommodation in a crisis, including returning to more supportive accommodation if appropriate”.

We are also planning to change the law so that directors of children’s services sign off decisions for 16 and 17 year-olds leaving care. We think that such a move will ensure that young people leave care when they are fully ready. We believe, therefore, that we do not need to impose new duties on local authorities, but need to ensure that all local authorities use good practice. Again, the new Ofsted inspection framework will lead to support for care leavers being given more scrutiny. I hope that the course of action that I have outlined will reassure the noble Baronesses, Lady Young and Lady Massey, the noble Earl, Lord Listowel, and my noble friend Lady Stedman-Scott. I urge that the amendment be withdrawn.

[Lord Northbourne]

My Lords, the noble Lord has said many times that local authorities should do this, that and the other, but we all know that some local authorities are under tremendous pressure and have difficulty in finding adequate social workers as they do not have enough money. Some of us were wondering whether the Government have sanctions to ensure that local authorities do it. What provisions are there for ensuring that it happens? I believe that Ofsted has to report on it but I am not sure.

[Lord Nash]

If the local authority has a poor Ofsted inspection on this matter, we can and will intervene. There is a specific section on care leavers.

[Lord Northbourne]

I thank the Minister.

[Baroness Young of Hornsey]

My Lords, I start by thanking the Minister for his response and for his offer for me to meet with officials to discuss this issue further. There is still a case to answer here. In the brief life of this Committee, we have heard time and time again that there is a huge amount of inconsistency across different local authorities and that there is a disconnect between practice and what already exists, so we are not getting the impact. My noble friend Lady Howarth talked about initiatives in record-keeping but that is not happening in a consistent way and this still needs to be addressed.

We have a whole suite of amendments relating to looked-after children. Like my noble friend Lord Listowel, I am very pleased that the Government are taking seriously the need to address the needs of this particularly vulnerable group. However, those needs do not stop the moment you leave care. Although the noble Lord referred on a number of occasions in his summing up to children, we are actually talking about post-care adults who still have needs, vulnerabilities and difficulties and who still have to come to terms with their difficult experiences.

I thank my noble friend Lord Listowel and the noble Baroness, Lady Massey, for their support. I can clarify for the noble Baroness, Lady Jones of Whitchurch, a point about the doorstep incident. I was not very clear because I was desperately trying to summarise what I wanted to say. What actually happened was that the social worker brought the box around and handed it over to the person, who was hoping for her notes and records but who just got this box with a load of papers in it in no particular order. There was no understanding that this was a difficult situation to handle: the social worker was off again in her car straight away. It was not just a box of papers dumped on the doorstep but, having said that, the whole issue of redaction is one that I would like to explore with the Minister and officials. Having said all that, I beg leave to withdraw.

Amendment 33 withdrawn.

Clause 8: Contact: post-adoption

Amendment 34

Moved by

[Baroness Hamwee]

34: Clause 8, page 6, line 44, at end insert—
“( ) the benefit to the child of an order under subsection (2),”

[Baroness Hamwee]

My Lords, Clause 8 is also about contact: contact post-adoption. Subsection (5) sets out the points which a court must consider when there is an application for an order for contact by any person who has obtained the court’s leave to make that application. The court must consider: any risk of the application disrupting the child’s life to the extent that he or she would be harmed; the applicant’s connection with the child; and representations made to the court by the child or any person who has applied for, or been granted, an adoption order. I am quite prepared to be told I have misread this, because the amendment comes out of my own head: it has not been raised by anyone else with me. If I have got it completely wrong, I apologise to my noble friend who has put her name to it.

There must be a place for considering the welfare of the child. Section 1 of the 1989 Act states that when the court determines any question with respect to a child’s upbringing, the child’s welfare is the paramount consideration. Is that the answer in the sense that it would apply in any event? If so, why do we have the new subsection (5)(a) about the risk of disruption to the child’s life, because welfare of the child would clearly cover that? It seems to me that the balance of the clause as drafted, the presumption, is that if the risk of disruption to the child’s life is slim, you should not take account of it. I am curious—to use a term used earlier in a different context—about what has and what has not gone into the clause. I beg to move.

[Baroness Walmsley]

My Lords, I am happy to support my noble friend Lady Hamwee’s amendment, because it is never a bad thing to draw attention to the paramountcy principle in the 1989 Act and the fact that the welfare of the child must be pre-eminent. What she is suggesting is really nice, because it is positive. What we have in Clause 8(5)(a) is negative: that you should not do it if there is any risk. My noble friend is saying that you should do it if it is to the benefit of the child. I am a very positive person and I should like it that way round.

[Baroness Northover]

My Lords, I hope that I can reassure my noble friends Lady Hamwee and Lady Walmsley on this point. We are very concerned to ensure that when the child has contact, it benefits the child. There is both the positive side, when contact benefits the child; and the negative side, to protect the child where such contact is not regarded as being in their interest. It is striking that research has shown that the proportion of children suffering negative consequences from contact after adoption is twice the proportion for those for whom contact had a positive effect. In the light of that, this must obviously be weighed up extremely carefully.

My noble friends are clearly well aware that the paramount consideration of the court must be the welfare of the child throughout his or her life. Section 1(2) of the Adoption and Children Act 2002 states that the paramount consideration of the court when coming to a decision relating to the adoption of a child must be the welfare of the child throughout his life. I hope that that gives the reassurance that my noble friend is looking for. If it does not, I am more than happy to write to clarify, but I hope that she can be reassured that the balance is right and that the protections that she wants are indeed here in both directions, as it were.

[Baroness Hamwee]

My Lords, I am grateful to my noble friend. I agree that contact is important and frequently beneficial. I of course accept what she says about the Government’s intent. I am much less persuaded about the wording, because it seems to me that if the paramountcy principle applies, as it must, there must be a question why one is spelling out risk of disruption but only to the extent described. I do not quite understand the drafting, so I shall take up her offer of considering it further, but I beg leave to withdraw the amendment

Amendment 34 withdrawn.

Clause 8 agreed.

Clause 9: Promotion of educational achievement of children looked after by local authorities

Amendment 35

Moved by

[Baroness Massey of Darwen]

35: Clause 9, page 9, line 15, at end insert “and section 23B(8A) and monitoring and evaluating the effectiveness of that local authority in discharging its duties under sections 23C (4B) and 23CA and advising them on ways to improve”

[Baroness Massey of Darwen]

My Lords, I shall speak also to Amendment 37 in my name. Amendment 35 is about the effectiveness of local authorities with respect to care leavers. At its core is the need for monitoring and evaluation of their effectiveness.

In a debate on a previous amendment, I spoke about the Department for Education’s data pack on improving the performance of local authorities with regard to looked-after children. This data pack contains checklists and recommendations. I will not repeat the advice given there, but simply say that monitoring and evaluating effectiveness is good not only for clients—in this case, care leavers—but for the local authority. The duties on care leavers are set out in the Children Act 1989 and are clear. We all know that local authorities have many duties, and perhaps not much money, but surely evaluating practice is an important one. There is also good practice to share. After all, if local authorities do not monitor and evaluate practice, how do they know what is going on and how it might be improved? I was intrigued by the intervention of the noble Lord, Lord Northbourne, which seemed to be about the difference between “should” and “must”. Guidance is presumably the “should” bit, but guidance is not always respected. Does that therefore give rise to the need for a “must”?

18:15

Amendment 37 involves the improvement of safeguarding and the educational achievement of looked-after children. I understand that the Government are planning to revise the guidance on promoting the education of looked-after children to reflect that the virtual school head teacher will be statutory early next year; maybe the Minister can confirm and clarify that. At least 15 local authorities have virtual school head teachers already working with care leavers up to the age of 25. Pilots have taken place, with positive results in, for example, Hertfordshire and Oxfordshire. The purpose of my amendment is to seek to ensure that the education of looked-after children covers young people after the age of 18, just as local authorities have a duty to support the educational achievement of care leavers up to the age of 25.

In the special educational needs reforms proposed in the Bill, the Government have recognised the importance of extending support to vulnerable pupils beyond statutory school age, from birth to 25 years, through education, health and care plans. This is, of course especially important as care leavers are less likely than their peers to achieve academically. It is vital that care leavers benefit from the same overview provided by virtual school heads as do looked-after children.

The Minister in another place stated that the vast majority of local authorities have some form of virtual school head, but there is variation across the country and legislation was to ensure that this variation was eliminated; again, I look to the Minister for clarification. I am asking for that support to be genuinely extended to looked-after children and care leavers, not simply for reinforcing practice which exists already. I hope for a positive response in this House and look to the Minister for that. I beg to move.

[Lord Touhig (Lab)]

My Lords, I support my noble friend Lady Massey’s Amendments 35 and 37. I will also speak to Amendment 36 in my name. Amendment 36 would grant control of the pupil premium to the virtual school head. It would ensure that virtual school heads are responsible for allocating the pupil premium to looked-after children.

Clause 9 is one of the few parts of the Bill that provides extra support for children in the care system. It amends Section 22 of the Children Act 1989 by introducing a duty upon every local authority to appoint an officer whose role will be to ensure the promotion of the educational achievement of looked-after children. The role is usually referred to as a “virtual school head teacher” or “virtual head”. The idea of the virtual head is not new. My noble friend Lady Massey referred to pilots; pilot schemes have been trialled in 11 local authority areas and have been shown to be extremely successful.

Why is this amendment necessary? Well, the most recent figures we have show that in 2011-12, just 14% of children looked after for at least one year achieved A* to C in GCSEs, including English and Maths. That compares with 58% of all children, so there is no doubt that children who have entered the care system, and who are likely to have experienced abuse or neglect before entry into care, need additional educational support. Once in care, the disruption that can be caused by a placement breakdown or move can also severely impact upon educational achievement.

As parents and grandparents, I am sure we all know that young people approaching their GCSEs have enough to contend with without needing to worry about whether they will be living in the same house when they take the exams. For many young people in care, this is a common reality. It is little wonder that their success rates in exams lag behind the norm. The original proposal to require local authorities to provide a virtual head was contained in the report of the All-Party Parliamentary Group for Looked after Children and Care Leavers, Education Matters in Care. At that time, the chairman of the all-party group was Edward Timpson MP, who is now the Children and Families Minister.

The all-party group went further. It also recommended that:

“Virtual School Heads should control the Pupil Premium”.

The pupil premium allows for a level of financial support for eligible children, which is currently about £600 per annum, to be used by their school. The all-party group report also noted that virtual heads have little control over how the pupil premium is spent and recommended that the system would be more effective if they were given control of this resource. As the present Children’s Minister recommended that these changes were necessary when he chaired the all-party group, I am sure that I am not alone in being a little disappointed that they are not included in the Bill.

The arguments in favour of their introduction remain and I hope that when we consider the Bill on Report, we will ensure that these provisions are properly made. The case for allowing the pupil premium to be controlled by the virtual school head seems to be supported by recent comments made by Ofsted’s chief inspector Sir Michael Wilshaw. He expressed concern that a significant minority of schools are struggling to show how their use of the premium is having any significant impact upon the attainment of those pupils it was intended to assist, so clearly there is an issue that Ofsted recognises. I hope that the Minister will see the wisdom of this amendment, and I look forward to his reply.

[Baroness Morris of Yardley (Lab)]

My Lords, I support the amendments in this group—in particular my noble friend Lord Touhig’s amendment—but I very much support the point made by my noble friend Lady Massey about the need to evaluate. That is a theme throughout the considerations of this Committee. It is not that nobody has thought of doing the right thing but that we have not been good enough in implementation and monitoring, and in amending what we do in the light of the evidence. That is why that amendment is important and is one that we should pursue.

My comments will be in particular about the pupil premium. It is a brilliant little idea. I admit that when I first looked at the Bill and when we were discussing it at Second Reading, I could not be against the notion of the virtual school head but it did not quite ring right with me. I was not against it but I was just not sure that it would have any impact. Perhaps those local authorities that have voluntarily carried it out and feel they own it will make a success of it. My worry was that once you made it statutory throughout the nation, it would become just a job to be done and a box to be ticked. It needed some sort of bite beneath it that would give it teeth and make sure that something happened. I did not raise this at Second Reading because I could not think of anything at the time, but I think that the pupil premium might be one of those things that means that schools and other places in the education system have to sit up and listen because there is a control of resource in someone else’s hands. That might just give the edge to this post, new as it is, as it starts its contribution to education.

There are perhaps one or two other reasons. My noble friend Lord Touhig was right to say that the evidence at the moment is that some schools are not spending the money to greatest effect. Many are, and there are now lots of things that will help them spend the pupil premium to great effect, such as the toolkit. A lot of good work is being done by Ofsted and a lot of people. My worry is that this could be one of the cases where the group of people on whom it is spent least effectively are those children who are looked after. They seem to miss out on every bit of the system. This gives us a chance to make sure that in this we actually give them a head start.

I envisage that those people who are virtual heads could build up a body of expertise and experience about how best to spend the pupil premium. In that way, they could be champions of spending quite a significant amount of money. I am sure that teachers throughout schools in all local authorities might then look to them for advice. I trust that they will do it carefully. I would sooner the amendment said “in partnership with schools” because I do not think it will work unless it is in partnership with schools. Perhaps after consideration here, if it were to be brought back on Report, my noble friend Lord Touhig and others might wish to reflect on that. However, it is a really good addition to what is basically a good idea—the virtual school head. Until this amendment, they ran the risk of not having any teeth to do their work.

[Lord Nash]

My Lords, I am delighted by the cross-party support which Clause 9 has attracted. In spite of the modest progress in recent years in the attainment of looked-after children, progress is nowhere near what it needs to be. That is why we have decided to make the role of the virtual school head statutory, so that all local authorities are required to appoint a dedicated officer to discharge its duty to promote the educational achievement of the children it looks after.

Natasha Finlayson, of the Who Cares? Trust has said:

“Virtual school heads have been shown to have a positive effect on the attainment of young people in care”.

Ofsted’s thematic inspection of the role of virtual school heads published last year found that, where the role works well, it has a positive—some might go as far as to say transformative—effect. One of Ofsted’s key findings in that report referred to the very effective support virtual school heads provide. That support not only made a difference to children’s educational progress but often enhanced the stability of their placements and had a positive impact on their emotional well-being. Every inspection report of local authorities will in future, from November, include how virtual school heads are improving outcomes for looked-after children

On the aim of Amendment 36, I am sympathetic to the motivation of the noble Lord, Lord Touhig, and the noble Baroness, Lady Morris. If we want to maximise the benefits of pupil premium funding it is right to expect the virtual school head to have a role. As looked-after children will attract a pupil premium plus of £1,900 in 2014-15, dialogue between schools and virtual school heads will be vital.

We have therefore signalled our plans to extend the role of the virtual school head to work with schools to manage the pupil premium plus and ensure that the money is spent on securing the best educational support for children in care. Discussions between the school and local authority on the content of a child’s personal education plan and how the pupil premium will be used to support meeting the needs set out in that plan are crucial. That is a message that we intend strongly to emphasise in guidance.

I am grateful for the opportunity to discuss the role of the virtual school head in relation to care leavers. We know that their educational outcomes are not good enough compared to their peers and I recognise entirely how important it is that someone is there to support care leavers who are in, or who wish to return to, education. I can see therefore why there are calls to extend the role of the virtual school head to cover care leavers. In a number of local authorities, the virtual school head’s remit includes some overlap with care leaver services.

Although I share the objective of the noble Baroness, Lady Massey, in the amendment, I believe that addressing the educational needs of care leavers will not necessarily be met by adding a new duty to Section 23B. Extending in statute the role of the virtual school head to care leavers too widely risks undermining the very reason we are making the role statutory: to redouble our efforts to narrow the intractable attainment gap between what looked-after children achieve compared to their peers. If we extend the role of the virtual school head, it would add significant burdens to the local authority and the person undertaking that role and would dilute the impact of the role. We do not wish to do that.

I do not wish to appear complacent on this point. Supporting care leavers to stay in education and training is vital. That is why we have extended local authority responsibilities to care leavers up to the age of 25, where they are in education and training.

Under its new inspection framework, Ofsted will be looking at the quality of care leavers’ services and whether they have access to appropriate education and employment opportunities, including work experience and apprenticeships. They are encouraged and supported to continue their education and training, including those aged 21 to 24. Care leavers are progressing well and achieving their full potential through life choices, either in their attainment in further and higher education or in their chosen career or occupation.

If we are changing legislation, we have to be really sure that the changes are for the better and we have to have evidence of impact. We know that the virtual school head has had an impact on looked-after children nationally, and we cannot risk diluting that. There are other ways to ensure that the support that care leavers get to continue their education and training takes place.

I hope that I have provided reassurances to the noble Baroness, Lady Massey, and the noble Lord, Lord Touhig, of our commitment to improving outcomes for all looked-after children and care leavers, and that they will join me in welcoming our recent announcement on the pupil premium plus and withdraw their amendment.

18:30

[Baroness Massey of Darwen]

My Lords, I thank all noble Lords who have contributed to this short debate, and the Minister for his clarification. I am particularly pleased that the issue of monitoring and evaluation of practice is coming up quite consistently; it is terribly important. I also look forward to seeing how the Department for Education guidance, which I have quoted already, is played out in practice and implemented. I shall be interested to see how local authorities use that guidance to improve practice.

My noble friend Lady Morris emphasised how looked-after children miss out, and talked about champions of spending. I am pleased that the Minister could confirm that the virtual school head will be made statutory. Again, I look forward to hearing how exactly that role will now be defined. Will it include the pupil premium, which is a very interesting and important issue—perhaps, as my noble friend Lady Morris said, in conjunction with schools? In the mean time, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Amendments 36 and 37 not moved.

Clause 9 agreed.

Amendment 38

Moved by

[The Earl of Listowel]

38: After Clause 9, insert the following new Clause—
“Young people resident with foster parents to remain with them until the age of 21 when they choose to do so
(1) Section 23C of the Children Act 1989 (continuing functions in respect of former relevant children) is amended as follows.
(2) After subsection (4) insert—
“(4AA) The assistance given under subsection (4)(c) shall include the continuation of accommodation with the former local authority foster parent, unless—
(a) the former relevant child states that he or she does not wish to continue residing in such accommodation,(b) the former local authority foster parent does not wish to continue to provide accommodation, or(c) it is not reasonably practicable to arrange such accommodation.”(3) At the end insert—
“(11) In this section “former local authority foster parent” means a local authority foster parent within the meaning of section 22C(12) with whom the former relevant child, as a looked after child, was placed under section 22C(6)(a) or (b).””

[The Earl of Listowel]

My Lords, this amendment would allow young people in care to remain with their foster carers until the age of 21 where they and their foster carers agreed to do so. I hope that it might be helpful if I give a couple of examples of practice in this area already. Before I do so, I would like to correct an omission that I made earlier. The Minister was kind enough to say some good words about my work in this area, and I omitted to thank him for them. I appreciated what he said.

I recall a couple of relevant episodes while on the All-Party Parliamentary Group for Looked After Children and Care Leavers. One young man described his experience of being set up in independent accommodation. Pretty soon the local drug dealer had decided that he wanted to join this young man, and soon afterwards he lost his accommodation. I think that he also ran up a big back rent. A foster carer talked to me about a young girl who had been excited by the prospect of moving into independent accommodation at 17 or whatever, and his comment was, “Well, she was doing so well at school while she was with me, but now that she’s independent she obviously has other priorities”. We should try to normalise the experience so that it is what we would want for our own children: we want them to keep in touch with us and we do not want them disappearing goodness knows where, getting mixed up with goodness knows whom.

If I may make just one more comment, there has been a lot of concern about the experience of young women in care in recent years—the past 18 months, I suppose. One has to remember that many of these girls and women leaving care have had poor experience of men in their lives, and unfortunately many of them may turn to men who will not treat them well. For them this has been the norm and their experience. It has been striking for me, in recently meeting young women who have been allowed to stay with their foster carers past the age of 18, that they have a good continuing relationship with their male foster carer—and one can hope that they have a better model of how a man can relate to a woman than many of those who move out earlier.

Young people are living at home longer than ever, with an average of leaving home now at well over 24, yet many children in foster care, who are arguably among the most vulnerable in society, are still required to leave their foster home at the age of just 17. Those who get to stay past their 18th birthday are either the lucky few, funded by their local authority, or fortunate enough to have foster carers who can afford to offer them a home for free and support them out of their own pockets. Research shows that the longer a young person can stay with a foster family, the more successful they are later on. In 2011-12, only 320 young people remained with their foster carers past the age of 18, which is only 5% of care leavers; in the most recent year, only 10 more young people stayed put. It has been put to me that, in the current rate of progress, to reach the Government’s aspirations of 25% of young people staying put would take about 140 years.

Care leavers are more likely to be unemployed, young single parents, mental service users, homeless or in prison than those who grew up in their own families. This amendment to the Children Act 1989 is really important, in that it would allow young people to remain with their foster carers up to the age of 21. Staying Put has been piloted already in 10 local authorities across England, with great success. Young people who stayed with foster carers were twice as likely to be in full-time education at 19, compared to those who did not. Those staying put gave young people more control over their lives and their transition from care. Studies have shown that allowing young people to remain in care until 21 is associated with increased, post-secondary educational attainment, delayed pregnancy and higher earners.

The benefits to care leavers and to society of extending care have been found to outweigh the cost to government by a factor of at least 2:1, so staying put represents value for money. The department’s evaluation of the pilot found that to implement the policy nationally would require £2.7 million per year. This modest funding could be found partly through a smarter use of existing expenditure but, given all the burdens being placed on local authorities, it is only reasonable, especially as central government will be the greatest beneficiary in the long term, that a sum is set aside to enable local authorities to make the transition to this new arrangement, with many more—we hope that soon it will reach 25%—staying put.

To point out the saving to state-funded services, I turn first to housing. For every young person staying put with their former foster carer instead of independent living before they are ready, a one-bedroom flat is freed up locally, so this saves on local authorities paying rent on such properties in the private sector at high expense. Many care leavers who are forced to live independently before they are ready build up huge rent arrears, and that money is rarely recouped. Staying put is successful also in tackling the benefits cycle that young people are often at risk of entering. The one-to-one support and guidance offered by foster carers to young people in their transition to adulthood is crucial to ensuring that they can be helped on the road to becoming net contributors to society as adults, rather than a drain on resources. Those who stay put are more likely to be working full-time or part-time, or studying, and hence claim less housing benefit and income support.

The Children’s Minister strongly shares our belief that more young people should be allowed to stay with their foster carers for longer, and I am grateful to the Minister for taking a couple of occasions over the summer to talk to me about this issue. I recognise that the Government really want to see this happen, but they are in favour of a voluntary approach. As I have said, over the past year, only 10 more young people have taken up the Staying Put offer, so overall there has been a 0% increase because the number of young people coming into care has increased over the period.

What is happening is that, even in the current situation, many young people and foster carers have had to fight with their local authorities to allow and support Staying Put placements. We need an end to this postcode lottery. It is unacceptable that at a time when young people should be focusing on their education and training, as the noble Lord, Lord Touhig, said, they face doubt and anxiety over their future. Interviews with former pilots show that half had scaled back the provision, either by reducing the maximum age from 21 to 19 or by excluding NEETS, who are the people most in need of support and guidance. While I welcome the Government’s current interest in care leavers and the many important measures that they are bringing forward, I believe that without legislation, too few fostered young people will have a realistic chance of staying with their foster carers beyond the age of 18. This is a rare opportunity to change the law and ensure that the next generation of care leavers is given a better start in adult life. My parents would not have wished there to be any uncertainty that I would not get the support I needed to go through my education and go to university. I am sure that noble Lords as parents would also want to be certain that they could support their daughters and sons through whatever they chose to do during their transition to adult life. So far, I have not heard anything from the Government to reassure me that we will see this happen soon. If we introduce this provision in the legislation, within a short time we would see hundreds of young people on a better course as they left care. I look forward to the Minister’s response and I beg to move.

[Baroness Young of Hornsey]

My Lords, I strongly support this amendment. As I said earlier, it is part of a suite of amendments aimed at making the lives of young people in care more palatable. The idea of being told at the age of 16, 17 or 18 that you are going to be independent and that you will live in a flat, with minimal training in handling a budget and coping with the unwanted visitor referred to by my noble friend Lord Listowel who will derail your attempts to study or work, is unthinkable in relation to our own children. There is a concept that we should think of children in care or looked-after children as being our children, so we should do everything we can to ensure that they do not experience even more disadvantage.

I am not going to repeat all the statistics, research and evidence put before the Committee by my noble friend; suffice it to say that the Staying Put scheme was piloted in 11 local authorities. As he has said, the outcomes for the young people who stayed with their foster carers were significantly and substantially better than for those who were not able to do so. It gave them an opportunity to take more control over their lives and to make more successful transitions from care towards independent adulthood. The Fostering Network found that none of the pilot authorities reported significant problems with foster carer provision as a result of offering the Staying Put scheme, which I know is a concern that has been expressed by some people. While a minority did say that staying put would mean that in theory a former foster bed would no longer be available, it is often the case that foster carers plan to retire after the placement ends and would have been retiring at whatever age the young person left, whether or not it was beyond the age of 18. In addition, foster carer recruitment strategies have simply been amended to suit the new needs of the service.

I shall quote a leaving care manager who participated in the Staying Put pilot scheme. He said:

“Nowadays we do not even recruit foster carers who would not want to offer Staying Put. Indeed, because many of them now want to provide a Staying Put placement, we are keeping them happy and ensuring their future commitment to our service by allowing them to keep young people living with them. They see it as the natural and obvious thing for a professional fostering service to do and they want to play a part in that”.

18:45

In short, it requires a slightly different approach to fostering and its role, and Staying Put should be seen as just another part of the recruitment challenge. Another leaving-care manager in a pilot authority said that it actively assisted in recruitment of foster parents. He said:

“Staying Put has made a massive difference to [our local authority]. It has created a feel good factor in children’s services. It is now a flag that we wave, and has even helped with the recruitment of foster carers because they can see that we are committed to the whole journey of a young person in care rather than taking them to 18 and then dumping them”.

I want to focus on that last phrase “dumping them” because the last thing we want is for children in care or about to be care leavers to feel that this cycle of being dumped or the state of not being wanted is being repeated right up until they are 18.

Although the economic arguments are, of course, important, we should not lose sight of the moral and compassionate arguments. It is unacceptable for an 18 year-old coming out of the care system to harbour that feeling of being dumped, of being discarded again by an uncaring system. Staying Put is one way of reassuring those young people that they have not been left without support. If it were up to me, it would probably be a little older than 21 ideally. I see this as a rare opportunity to make sure that the next generation of care leavers gets a much better start to their adult life than people have had in the past.

[Lord Storey (LD)]

My Lords, I support what the noble Earl, Lord Listowel, has said. I remember him stalking in the Corridor in July; he was very excited and asked whether I would support this. I did not indicate but walked away and reflected on what he had said. I remember my professional circumstances, where foster parents at my school came to talk to me about this issue and how upset they were. It was quite traumatic for them as foster carers to lose children at 18 when they had so much more to offer in those important years. I thought about my own children. At 18 my daughter has just gone to university. It has been a very difficult time for her and she has needed the support of her parents, her family and friends.

We talk about cost but the cost is minimal: there is a saving. Never mind the savings we have heard about in terms of compassion as a society but the savings, as research has shown, in terms of those young people being more likely to be successful in their lives. If they are more successful in their lives, there will be fewer problems that we might have to pay for later on.

[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. It is so obviously a good idea. I have a suspicion that if it is not part of the legislation a voluntary system will work in a few places and will be disregarded right across the country. It is for that reason that it needs to be made part of the legislation.

[Baroness Hamwee]

My Lords, the meeting arranged by the noble Earl brought a number of comments about Staying Put. It was clear that there is a shortage of accessible information—particularly because not all authorities are operating the system—and that there are real complications when there are cross-boundary considerations. That follows on from the point made by the noble and learned Baroness.

Some things were mentioned which really took me aback. When a young person becomes 18, if he or she does stay with the foster parents a tenancy agreement has to be signed. As a couple of the young people we met said, “This does not reflect our relationship. They are our foster parents; they are not our landlords”. It is necessary, I understand, to have a tenancy agreement in order to qualify for housing benefit and income support. I asked how the total income compared to fostering allowances and I was told by the foster carer we met that the total income had reduced by about 50%. He was very enthusiastic about his foster daughter remaining with him. That foster daughter also said—she was part of a sibling group—that she had to be CRB checked in order to stay with her sisters. Something has gone wrong with the system.

[Baroness Walmsley]

My Lords, I, too, have my name on the amendment and support it wholeheartedly. The noble Earl, in his introduction, used the word “normalising”. We are trying to normalise the relationship between the young people and their foster carers because, as my noble friend Lord Storey pointed out, most young people who grow up in their birth family do not leave home at 18. They stay on.

I was interested in what the noble Baroness, Lady Young, said about the pilots. It did not have an adverse effect on the recruitment of foster carers; indeed, it had a beneficial effect. It occurs to me that the Government might be a little concerned that if we make it a right for young people, if they and their foster carers wish it, to stay on until 21, it will take away foster parenting places for other children coming into the system. Frankly, I think that we should be putting more effort into turning the tap off and giving more support to families so that children can safely stay with their birth parents, but that is an argument for another day. That might be the case, but I have a suggestion that might fulfil some of the need without the problem of taking away a foster-caring place for some other child. I have promoted this idea to successive Children’s Ministers over the past few years, who all say, “That sounds like a good idea”, but nothing ever gets done.

Many children go off to university or college, or to work somewhere else when they are 18, but they maintain a close and supportive relationship with their birth families. Why not allow foster parents, if they so wish, and the young person wishes, to have a sort of little stipend or retainer to act as a supporter and adviser to the care leaver for the next few years when they have left the bedroom in the house? That bedroom would then be freed up. A lot of young people who get on very well with their foster parents go back and visit them and ask for advice anyway. But many of them, knowing that the parents may have taken on another foster child and will be busy, would be hesitant to go back to the foster parent and ask for help and advice when things go pear-shaped, such as their accommodation or education plans going wrong, or they have trouble with their employment. Whatever it is, they would have somebody officially who was being paid a little bit by the state to help them and stop new arrangements breaking down. It is when they break down that the state has a great deal more cost liability to try to put things right. There is an existing relationship of trust, understanding, knowledge and emotion. If the Government cannot accept the noble Earl’s amendment—I very much hope that they will—perhaps the Minister will consider my suggestion of a sort of halfway house. The parent could retain that relationship formally and, one hopes, the care leaver would have no hesitation in going back to that person for advice if things went wrong.

[Baroness Massey of Darwen]

My Lords, I strongly support this amendment. I have heard the noble Baroness, Lady Walmsley, talk about this halfway house before. It is not a bad idea, but I hope that we can go the full way, for two reasons. First, there is the cost-effectiveness, which one or two people have mentioned. We sometimes forget that early intervention can actually save money in the long run; we should not forget that. Early intervention is not just about babies or children but older people. This example applies and it can be effective in this case. Cost-effectiveness was the first thing that I wanted to mention.

The second thing is the incredible importance of education, which has also been mentioned. Young people in education tend not to get pregnant when they are 15 or 16, they tend not to misuse drugs or alcohol, and they tend to do better if they are encouraged in that education. Like the noble Lord, Lord Storey, I was very impressed by the young woman at the meeting we had last week, who talked about the importance of education to her. As we know, education is such a key thing for all children, but particularly for these children. Therefore for me, cost effects on education swing this towards the Minister accepting this amendment.

[Baroness Howarth of Breckland]

My Lords, I will not repeat all the arguments that have been made, but of course, I want to support this. However, I will take it from a slightly different angle. I am quite sure that the Government do not want to take away from the determination that the local authority has to do its work. I know that devolution is important, and that the independence of the local authorities, such as it is, is valuable. Therefore I can understand that that might well be a government point of view. I can understand that the Local Government Association may have some concerns about additional responsibilities being added in statute, and I can understand some of the arguments, such as that if we have older young people in placements, they may block placements when we are short of foster-parents.

I have looked at those issues. It is quite clear that unless there is something absolutely straightforward, either legislation or regulation, in this area, local authorities will not be consistent in their care of over-18s. I have numerous case studies, which I will not read out now, but they have made me think that I need to speak about this in this way, rather than supporting the independence of local authorities, as I usually do as a vice-president of the LGA. Time and again, we read of young people—and I have met them alone, and with the noble Earl, Lord Listowel—who tell heartbreaking stories of their education and of how their success in other areas is being stymied because they have to leave their family in which they have all their relationships. We are failing significantly to understand that emotional context.

Noble Lords have talked on numerous occasions about their own children. Sometimes you do not get rid of them until they are 30. They do a lot of things in between, and you still take them back. I have not had children of my own but I have brought up more than most, and I know about that trauma. Secondly, I understand that fostering, and numbers, are now improving, and that we have to look at that in a different way. It was explained to me—and this is not an area in which I have recent expertise—that foster parents who take adolescents often retire, as has been said, but also tend not to take small children when they need a placement. You need a different set of skills and you are looking for different foster parents. The idea that these young people are blocking a foster place is not a real one.

I can understand that the voluntary way forward is preferred by the Government. It will not work in present circumstances in local authorities, pressed as they are, unless there is some very strong legislation or statutory guidance.

19:00

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support this important amendment, which I knew was coming up today. I was sitting as an adult magistrate in Westminster Magistrates’ Court earlier today, in a general remand court, and I took a note of the type of cases we heard. I had 26 defendants in front of me today, five of whom were in the age range of 18 to 21: a perfectly typical illustration of the age range that we see. Although it is not always obvious in court what someone’s background is, I would make an educated guess, based on their previous criminal history, that four of those five had been in some sort of care: that was not a surprise. The fifth defendant was a foreign national who was only 20 years old and was living rough in London.

This is totally typical of the type of defendants whom I see in my adult work in central London, and that is why I support so strongly the amendment moved by the noble Earl. I would see a similar distribution in my youth work, and this one amendment could make more difference than any other single amendment we are talking about this evening.

[Baroness Morgan of Drefelin (CB)]

My Lords, the noble Baroness, Lady Young, made a point about the age of 21. Noble Lords are sharing their experiences of parenting today, and the thought that my 21 year-old could be launched out into the world now fills me with anxiety. I feel that she is on a bit of elastic, will be coming back every so often and we will be there for her as things go on. I understand the evidence put very eloquently by the noble Earl, Lord Listowel, for this proposition, which I support. However, this is such an unusual opportunity that I wonder whether we should be saying 21 or 25. It might be pushing it slightly to say 25, but 21 seems so young. This is about making evidence-based policy, so I would be interested to know what the evidence is for the age of 21.

[Baroness Hughes of Stretford]

My Lords, I do not want to delay the Committee but I want to make a few quick comments in support of this amendment. It is very dear to my heart, as I was Minister of State for Children when we instituted the pilots to which several noble Lords have referred. One reason we did that was because, in the White Paper we wrote at that time, I felt strongly that one of our guiding principles in going forward and trying to improve the situation for children in care—a view shared by members of the Committee—was that we should provide them, as far as possible, with the same opportunities that we would want for our own children. As so many noble Lords have said, we have seen a social change over the last 20 years in that our young adult children do not leave home at 16, 17 or 18. Even if they go to university, their bedroom is still there and they come back. They often come back after they have done their studies and they now do not leave home until, on average, their mid-twenties. When the state is the parent, we have to aspire to the same opportunity for those children for whom we are collectively responsible. This is one of the most compelling reasons why we should extend these pilots and make them national.

The benefits to the young people in the pilots have already been well expressed and I will not rehearse them. There is, of course, a cost. The Department for Education has estimated, on the basis of the pilots, that the cost of instituting Staying Put nationally would be £2.7 million. I know that it does not work out as an average because some local authorities have more children in care than others, but, on average, that is £18,000 per annum, per local authority—not per child or per placement: per local authority. So the costs, relative to the benefits, are very small and, as we have heard, there are additional savings to the state from some of the state-funded benefits and support that would have been reduced in the pilots.

The Minister in reply to the previous debate said that helping care leavers to stay in education and training was vital. He also said that when the legislation is being changed, we need evidence of impact. I put it to the Minister that this particular proposal satisfies both of those criteria. If we were in government, and if we are in government again, this is something we would definitely be looking at to see if we could fund because the costs relative to the benefits are also small. I hope the Minister will consider this favourably.

[Lord Nash]

My Lords, I welcome the opportunity to debate the important subject of how local authorities support care leavers. I fully understand concerns raised by noble Lords, including the noble Earl, Lord Listowel, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Young, Lady Massey, Lady Morgan and Lady Howarth, the noble Lord, Lord Ponsonby, and my noble friends Lord Storey, Lady Howe and Lady Walmsley, and many external parties about the ongoing support for care leavers. As the noble Earl has said, we have had the opportunity of discussing this matter privately on a couple of occasions recently. I look forward to further discussions with him on this matter as he knows I also feel strongly on this subject.

We have emphasised the importance of staying put in revised statutory guidance, because we recognise that for many young people the ability to stay on with their former foster carers, particularly when they are in further and higher education, is the right decision. The Minister for Children and Families wrote to all directors of children’s services last October, encouraging them to prioritise their staying put arrangements, so that all young people who wanted to could benefit from this provision. I accept there is more to do. Naturally we are disappointed that the 2013 statistical returns from local authorities show only a marginal increase in young people in staying put provision. However, we should recognise that these figures collected by local authorities are a snapshot at 19 and they run only until March 2013, so there is not much time to see the impact of the actions we have taken since 2012. Moreover, they do not tell us about the number of young people who might be benefiting from this provision from the age of 18, and who will leave this arrangement before they turn 19. From next year the department will be collecting data at age 18, 20 and 21, and will be able to see from 2014 how many young people are benefiting from this provision before and after the age of 19.

Our approach is and has been to improve practice. We are continuing to look for ways to promote and encourage this. We have already worked with Her Majesty’s Revenue and Customs and the Department for Work and Pensions to issue practical guidance on staying put to help carers and local authorities around tax and benefit issues. As I have already said, the revised Ofsted inspection framework that comes into practice in November has a specific focus on the quality of leaving care services. A focus on the care leaver assessment will be on accommodation, and inspectors will consider staying put opportunities. Being able to stay in placements beyond 18 is mentioned within one of the grade descriptors of the care leavers’ judgement. We will monitor closely the reports on these inspections and feedback from care leavers, and expect to see significant improvements in 2014 and 2015 in the number of young people staying put. In addition, through our work with the National Care Advisory Service, my department will encourage local authorities to share effective practice where they are making good progress in this respect. While doing everything that we can to promote staying put, we must recognise that this sort of provision will not be appropriate for all young people. Care leavers, like their peers, have different needs, and attitudes regarding their transition to adulthood. The crucial point is that young people should be offered a range of placements that are safe and suitable, and meet their individual needs. I want to reassure noble Lords that the Government want to encourage all looked-after children to stay in care until they are 18 and beyond, where this is the right choice for them. We want to do everything we can for all care leavers.

I recognise the strength of feeling expressed today, and wish to take the issue away to consider further what more we can do to increase the numbers of young people in staying-put arrangements. I understand that noble Lords feel there is a case that all we are doing is not enough. I have asked my officials to work further with the Fostering Network and others on this issue. The noble Baroness, Lady Hughes, mentioned a figure of £2.5 million, which is no longer our view of the figure, although it is a figure that the Fostering Network has recently come up with. We believe the figure is considerably higher, but we will be working with the Fostering Network to see if we can pin this figure down further. I would be pleased to discuss this issue further with the noble Earl over the coming weeks.

I hope that what I have said reassures noble Lords of our commitment to this issue and I therefore urge the noble Earl, Lord Listowel, the noble Baroness, Lady Young, and my noble friends Lady Sharp and Lady Walmsley not to press their amendment.

[The Earl of Listowel]

I thank the Minister for his reply. Before thanking colleagues, perhaps I may put a few questions on the detail to the Minister. With regard to the timescale, he was good enough in his comments just now to say that he expected a significant increase in the next two years in the number of young people staying put. Perhaps he would like to write to me with a clearer timescale. My concern is that unless we move quickly on this in the next one, two, three or four years, hundreds of young people will miss out on a pathway which we know would do them a lot of good and mean that they would have much better outcomes. If the Minister wishes to take a different approach, the voluntary approach, I should be grateful if he could make it clear when he hopes to achieve the target of 25%, which I think is the government target. It would also be helpful to know what steps the Government will take if that target is not reached or if good progress is not made in that direction. Those are just a couple of questions. He may prefer to write to me rather than answer them now.

[Lord Nash]

I am grateful to the noble Earl for his further questions. We expect to see an increase to 10% in 2014 and 25% in 2015 but, as I said, I look forward to discussing the whole issue with him, officials and the Fostering Network shortly.

[The Earl of Listowel]

I thank the Minister. I thank all colleagues for their support for the amendment. It is heartening for me to hear that depth of support from across the Committee. If I may say so, it was most interesting to hear from the noble Lord, Lord Ponsonby, about his experience today in an adult court. It was not at all surprising.

I should have made clear a couple of things in my opening remarks. First, 11 local authorities took part in the pilots to begin with. Then two of them merged, so it became 10. That is the reason for the disparity between the comments made by my noble friend Lady Young and me about the number of local authorities in the pilot evaluation. I also omitted to say that some of the local authorities taking part in the evaluation were selecting young people who work in education or training, so that does not give us as clear a picture about the successful outcome as one might like. I think that it is still very clear, but I want your Lordships to be aware that there was a difficulty there in terms of the group used in the pilots.

I welcome what the Minister has said. Of course, the measures that he is proposing are untried. We have seen only a marginal improvement in the past year. My concern is that in the years to come—the next one, two, three or four years—if the movement is too slow, hundreds of children will miss out on an education, a training or employment and go down much worse pathways if we do not grab the nettle and act now. I look forward to studying what the Minister said and to further conversations before Report.

I reiterate once more how grateful I am to noble Lords across the Committee for their support and I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

19:14

Amendment 39

Moved by

[Baroness Butler-Sloss]

39: After Clause 9, insert the following new Clause—
“Provision of accommodation for children
In section 20 of the Children Act 1989 (provision of accommodation for children: general) after subsection (1) insert—“(1A) Where a local authority provides accommodation for a child identified as a victim of human trafficking who has been trafficked into England or Wales, that local authority shall have parental responsibility for that child during the period that child remains in the accommodation of the local authority or until the arrangements for the child have been completed, or both.
(1B) Where another local authority provides accommodation for that child, that local authority shall have parental responsibility for the child during the period that child remains in the accommodation of that local authority or until the arrangements for the child have been completed, or both.””

[Baroness Butler-Sloss]

This amendment deals with a totally different subject. There are three amendments in this group but I do not propose to speak to Amendments 43 or 234 because I understand that those who tabled them will in due course ask to degroup them. Therefore, I shall speak exclusively to Amendment 39.

This amendment relates to the most disadvantaged group of children who come into this country. Very often, they are children brought here against their will, or certainly without any knowledge of what is going to hit them when they get here. They may be sexually exploited or they may be victims of domestic service or forced labour, such as the Vietnamese boys who run the cannabis farms in rented accommodation. Among them are boys who are trained, Fagin style, to steal, and there are other children who go through appalling sorts of slavery. When they escape, or if they are fortunate enough to be picked up at the border control, they are not as well looked after as adults.

This is an area where adult victims of human trafficking—modern slaves—are quite well cared for in this country in many ways. It is much to the Government’s credit that they have signed the European directive on human trafficking and, indeed, are in the process of implementing it. However, we fall far short of what should be done with the children. They are placed in the care of a local authority, not under care proceedings, which we discussed earlier today, but under Section 17 of the Children Act 1989, which requires local authorities to look after a child in their area. They are placed with the nearest local authority by whoever has identified them as trafficked, and the local authority has an obligation to look after them under Section 20 of the Children Act. I repeat: it is an obligation to accommodate.

We know that very worrying numbers of children go missing from local authority care. Local authorities do not even know why or how some of these children have come into care because it takes anything up to 48 hours to register a child into care, and these children often go missing within 48 hours. In another place, Peter Bone MP sent a message to all local authorities asking how many children who go missing are trafficked children. No local authority responded with any figures at all, and only about eight out of all the local authorities responded at all but they had not identified the children who were missing as trafficked children.

If the children have a mobile phone, as they usually do, they are given a number and are told to ring the trafficker. The trafficker waits outside the care home, or very often the home of the short-term foster parents who have not had time to get organised with this child who is suddenly dumped on them: the child gets the telephone call, goes out of the front door and is never heard of again. Those children are trafficked or retrafficked. Something like 300-odd children have been identified as being trafficked, and that, I suspect, is the tip of the iceberg.

The reasons for asking for a local authority to have parental responsibility are twofold. One is that these foreign children do not have anyone in this country with any responsibility for them until they get to the local authority—perhaps with the exception of those who are trafficking them, who may be relatives. Secondly, the local authority does not have parental responsibility, as defined in the Children Act, for these accommodated children; it simply has a requirement to accommodate them. It is right to say that there is a requirement to look after them but if they do not have parental responsibility—and local authority social services know exactly what parental responsibility means—that is what they receive after they get a care order. Even an interim care order gives them a joint parental responsibility with the family. However, for these foreign children there is nobody with parental responsibility.

Parental responsibility may not be the best way of dealing with this; there are two views on it. I have tabled this amendment because I am concerned that, currently, local authorities are not treating these children with the seriousness that they should. Local authorities are overworked and very often under-resourced. These children are dumped on them at very short notice, identified as having been trafficked and are not given the same degree of care as a child who goes through the care process in this country. It seems that there are two ways forward here. Either the local authority makes a care application, which costs money—and it is getting more and more expensive for local authorities to make care applications—or, as I suggest, there should be an automatic parental responsibility. It would not cost a penny but it would flag up to local authorities the actual responsibility they have for these children who are dumped on them. They cannot just accommodate them and not really take that extra step of being a joint parent.

I am extremely concerned about the standards for the children we have been talking about last Wednesday and today. They are only a small number of children but, my goodness me, we are failing them. It is a blot on the England and Wales system, under which we are failing to deal with them. I do not know whether I really need to declare again an interest as a trustee of the Human Trafficking Foundation or as co-chairman of the All-Party Group on Human Trafficking and Modern Day Slavery, but this is a truly serious matter for a small group of children. One way of dealing with it is to give local authorities parental responsibility. It would hit them with the fact that they have to do something practical about these children.

Barnardo’s was given some money—I believe by the Government—to trial having specialist foster parents to look after trafficked children. I was told by one of the representatives of Barnardo’s that it was not taken up. I think that 15 specialised foster parents were trained and that local authorities were told they could have this for nothing. They were not being asked to pay a penny and they did not take it up. I think there were two or three places where local authorities did not do it, which is an indication of the degree of concern that I understand the overworked social services have for this group of children. Something absolutely has to be done. I beg to move.

[Lord Northbourne]

My Lords, I rise to reinforce, in a way, what the noble and learned Baroness, Lady Butler-Sloss, has said but also to ask some questions. I should perhaps declare an interest as a council tax payer in the district of Dover. As I see it, the amendment, as tabled, would require the local authority to bear the financial responsibilities of looking after these trafficked children, far more of whom probably come in through Dover than through any other point of access to the United Kingdom.

It so happens that a year or two ago, my wife chaired the Kent Community Housing Trust, which is for old people. During that time they received a panicked telephone call from the county council saying, “We simply can’t cope with this flow of people. Can you help us?”. Luckily, an old people’s home was able to be diverted for that purpose. As the noble Baroness said, it is not easy. In one case a child arrived at the children’s home absolutely white with fear and said that he had just seen a murder and the murderer. The child knew that the murderer had seen him, so he feared for his life. He was kept in the home for 16 days and at the end of that period he slipped down to the village to buy some fags and was never seen again. We are talking about quite a tough world.

What are the financial implications for local authorities which receive an enormous number of young people? My noble friend was being rather critical of the local authorities but they were presented with a very difficult problem at very short notice.

[Baroness Butler-Sloss]

The local authority has the obligation under the 1989 Act to accommodate children, so there are no financial implications that I understand. The only financial implications would be if the local authority were involved in care proceedings, when it would have to pay for the applications.

[Lord Northbourne]

How are they supposed to pay for this?

[Baroness Butler-Sloss]

They do it already. There is no difference. They have a requirement under the Act to accommodate. They have had that since 1989, or since 1990 when the Act came into force. I am talking about giving them a parental responsibility order, which is a wake-up call and has nothing to do with finances at all.

[The Earl of Listowel]

I hope it will be helpful to the Committee—

[Baroness Howarth of Breckland]

My Lords—

[The Earl of Listowel]

My noble friend may want to do the same thing.

[Baroness Howarth of Breckland]

I am asking that Amendment 43 be decoupled from this amendment because it deals with a quite different issue. I wish to speak briefly to the amendment moved by the noble and learned Baroness, Lady Butler-Sloss, if the noble Earl, Lord Listowel, will allow me. It is extraordinary that there are children in this country, from wherever they have come, for whom the local authority fails to take some sort of action. I do not often say this but, in my day, children would be seen as having no parental cover whatever and there would be no doubt that the local authority would have had a care order. There is no doubt that that would have happened in the past. The noble Baroness, Lady Howe, agrees.

I understand why we want fewer court proceedings. Having been the chair of CAFCASS, I absolutely understand that. They are expensive and are often not helpful to the child’s experience, never mind that of the local authority. Under the 1948 Act we had a way of ensuring that children were placed under the equivalent of a care order by a process in the local authority. In the days of Sections 1 and 2 of the Children Act 1948, one lot of children went to court and the others went through a process in the local authority. We should ask the officials to look at this. Without a doubt we have a national responsibility to protect this small cohort of children. I have come into contact with them because I deal with serious sexual abuse issues. The girls who are trafficked are seriously sexually abused. It is not just prostitution; it is abhorrent prostitution. Unless we find ways of protecting these youngsters they will just slip away and disappear, not of their own choice. I support the noble and learned Baroness in her attempt to find a way that is not expensive but which secures these children’s futures.

[Baroness Massey of Darwen]

My Lords, an issue that is not directly relevant to this amendment, but which is akin to it, is that of parental responsibility and the accommodation that these children go into. I know that these highly vulnerable children are put into shocking accommodation. They are followed by traffickers, drug dealers and criminal gangs. They are abducted and disappear or something even more terrible might happen to them. I want to emphasise that parental responsibility must include decent accommodation for these children.

[The Earl of Listowel]

My Lords, I advise the Committee that I wish to decouple my Amendment 234 from this grouping. I apologise; I did not watch carefully enough the information from the Whips’ Office this morning.

19:30

[Baroness Hamwee]

My Lords, I have put my name to the amendment. I think that I could sum it up by saying that it would turn accommodation into care, and it is care that is needed. It is not surprising that children in this situation go missing, because the only people whom they know are those who have trafficked them. If they are given the means of staying in touch, as so often they seem to be, they will respond to a contact or make contact themselves. It seems that very often the first thing that happens is that they are given a mobile phone and instructed: “You keep in touch with us”. Whether this is the right way of going about it I do not know, but I have heard those around me who have much more recent or, indeed, current local authority experience muttering, “But the local authority has to do this”. Well, let us find a way of making sure that the local authority does more than what fulfils cold letters on paper and actually produces the service.

[Lord Storey]

My Lords, I would like to explore this in a bit more detail. Perhaps the Minister, if he is not able to give the information in his reply, could write to us. My experience in local government and as a head teacher is that, of course, children are trafficked, but some are trafficked because their parents in another part of the world want a better life for them, so they pay someone to put them on a plane and the poor child then arrives in the UK. As I understand it, there are regional centres where the children are received. There is one in Dover. Liverpool was and is another regional centre. The children come to Liverpool and Liverpool tries as best it can within the resources to cater for them and to look after them. I know that for two reasons. One is that, four or five years ago, our director of social services wrote a report saying, “Look, my budget can’t cope with the number coming in. We want to help, but it seems unfair financially that Liverpool should carry this burden”. Secondly, I also know as a head teacher that some of these children have been put into foster care. I gave the example at a meeting of a Mongolian street child, whose grandparents had paid a trafficker to bring him to the UK. He landed in London but was sent to a regional centre, which happened to be Liverpool, where he was fostered with a wonderful family in Halewood. He came to my school and he was well looked after. For me, the issue is not the reluctance of local authorities to deal with this but the sheer size of the problem and the support that they get. I hope that that makes sense.

[The Earl of Listowel]

I am reminded of the report by my noble friend Lord Laming on the death of Victoria Climbié. One of the comments made by the social workers in Haringey who were interviewed was that they were overwhelmed at the time, particularly by unaccompanied asylum-seeking children and young people. This can put a heavy burden on local authorities. I have another, related experience of visiting a children’s home some years ago. I spoke to the manager, who was very experienced—in many ways, she was a remarkable manager—but when it came to working with unaccompanied asylum-seeking children, she felt that these were not their children. She had enough to do looking after the children with whom she had to deal, rather than having to deal with these other children, if you like. There is a difficulty and perhaps the amendment is a helpful way of tackling it. Some people will just say, “Look, we have enough on our plate. We don’t want to think about these extra children and we’ll find ways not to do so”. I am not sure whether that is exactly the issue in hand, but my experience is that, understandably, given the strains on social services and the immense emotional burden that caring for children with complex needs brings with it, some people can find ways to rationalise not giving proper care to vulnerable children because those children come from a very different background from theirs.

[Baroness Jones of Whitchurch]

My Lords, I am extremely grateful to the noble and learned Baroness for tabling this amendment. We all share her abhorrence at what is currently happening out there in the way that the care system is routinely failing trafficked children. I was interested to hear what the noble Lord, Lord Storey, said. One aspect of it might be that children whose parents want a better future for them come here voluntarily. However, the people that the noble and learned Baroness is talking about are duped into coming here on completely false pretences. They are told they are coming for waitressing jobs or otherwise to earn money. They certainly do not expect to come in the mode of being owned by a gang member, which is where they find themselves. The noble Lord is right that there is some good local authority practice but that is where people want help and support genuinely to make a better future here: these are not the same people.

This all goes to show that the problem for local authorities is much bigger, in the round, than we are looking at. There are people who come in on the noble Lord’s terms and those who come in on the noble and learned Baroness’s terms. There are some excellent charities working in this sector, as well as the local authorities who are providing a safe haven and proper care and advice for these young people. However, they need to do more and they are very much the exception. All too often, everyone feels powerless to prevent those children who are rescued disappearing. It is not just that they are being traded and sold into slavery and sexual abuse. Very often, the children go along with the gang members because they are spooked by some form of black magic which is endemic in their original societies or they feel that their families will be threatened by violence back at home if they do not go along with it. In no sense are they involved voluntarily: this is under absolute fear, duress and panic. It is a scandal that we are allowing this to happen on our territory and are unable to prevent it.

I was pleased to hear the proposals of the noble and learned Baroness. I do not know well enough what difference it would make but it would be fair to say that if it did make a big difference it would have a cost implication. If it were not going to make much difference, it would not. We have to own up to the fact that there may be a cost implication to what is being proposed. It is only right that, if a child is under 18, the local authority should have the same duty of care to look after them as it would to any other young people under its jurisdiction. It also seems only right that, when they go missing, it takes the same level of care as it would for any other young children under its jurisdiction, including making sure that it escalates the details of those young people beyond the local missing persons’ procedures.

We have touched on what is going wrong with local authorities. It is partly about resources but they also think that it is just too complicated to deal with on their own, particularly when they are dealing with young children and traffickers who are constantly moving and crossing local authority borders and other boundaries. It is all too easy for local authorities to feel that it is, in a sense, someone else’s problem and that the problem has moved off their estate and into the hands of someone else. That is not justifiable and we want to work with the Government to find some way to deal with this problem. It seems an absolute affront to our civilisation that children can be bought and sold and exploited in our own sight, and that we seem to be powerless to stop it.

The real solution probably lies with having the political will to make this issue a priority, which I do not think that it has been up to now. At the same time, a lot could be done if all the agencies involved worked more closely together to share information and act decisively. Whether that needs to be put in legislation is another matter, but a bit more joined-up action and joined-up government could go some way to addressing it. I very much appreciate the noble and learned Baroness raising this issue, and I hope that the Minister will explain how she is going to solve this problem.

[Baroness Northover]

My Lords, first, I thank the noble and learned Baroness, Lady Butler-Sloss, for her tribute to the Government in relation to adults who have been trafficked. We appreciate her comments. But we share her concerns, and those expressed by other noble Lords, on the welfare of children who have been trafficked into this country. These are often extremely vulnerable children, who may have suffered tremendously at the hands of their traffickers. As recent work by the Refugee Council and the Children’s Society shows, these children can fail to gain the support that local authorities should provide. They should get the same support as other looked-after children; the legal duties to support them are the same. The noble Baroness, Lady Jones, pointed towards that. Local authorities already have statutory duties to safeguard and promote the welfare of trafficked children. They should be treated and supported in the same way as a local authority should support any child whom it is looking after.

Parental responsibility in law is not required to fulfil the duties of a parent in practice. Where local authorities are failing in this duty, they should be held to account. The noble Baroness, Lady Jones, pointed towards that, too. But requiring that they gain shared parental responsibility would not in itself bring the improvement provided. There was an interesting mini-debate about cost; the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, reassured the noble Lord, Lord Northbourne, on that, and we are grateful for that.

Assigning parental responsibility could have unintended consequences. A trafficked child may well have a parent somewhere who already has parental responsibility for them. Although the local authority should act as a parent until the family is reunited, it should not automatically acquire parental responsibility towards that child. While it is clear that some local authorities are not performing adequately their statutory role to promote the interests of trafficked children, adding a requirement on them to seek parental responsibility for these children could create legal complexity without addressing the reasons for these failures. Instead, we believe that we must continue to pursue the programme of reforms to the care system that are already under way. As we implement these programmes to provide more stable placements, improved education and health outcomes and support towards independence and adulthood, I assure noble Lords that we shall take account of the particular needs of trafficked children. Already, for example, we have published revisions to statutory guidance on missing children which strengthen advice on identifying and meeting the needs of child victims of trafficking. The consultation on that has just finished, and we will take the comments from tonight into account in the final version of that guidance.

I mention to the noble Earl, Lord Listowel, that the number of unaccompanied asylum-seeking children has in fact dropped over the past two years, which is of course very welcome.

This is a very vulnerable group of children, and we fully recognise that. We understand what the noble and learned Baroness, Lady Butler-Sloss, and others are arguing. We will be very pleased to arrange a meeting with noble Lords to discuss this issue and consider whether more could be done. In the mean time, I hope that the noble and learned Baroness is willing to withdraw her amendment.

[Baroness Butler-Sloss]

I thank all noble Lords for their contributions. Perhaps I should have said earlier that this was a probing amendment. I see disadvantages in local authorities having parental responsibility, but I never suggested in the amendment that they should hold it exclusively. It would be similar to a care order, where the local authority and the parents share parental responsibility. There is no suggestion that it should be a sole responsibility.

It is important to recognise that asylum-seeking children are not necessarily trafficked. I am talking about a relatively small number of children, in the hundreds, but they are the most vulnerable children coming in from outside.

[Baroness Northover]

Perhaps I should clarify my comments to the noble Earl, Lord Listowel. He suggested that local authorities, because they are dealing with large numbers of asylum-seeking children, were therefore not dealing with trafficked children. I simply wanted to place that in the context that the numbers there are dropping. In case I caused any confusion, perhaps I can clarify what I was saying.

[The Earl of Listowel]

Just to clarify my position, I was simply using that as an example: that occasionally local authorities are overburdened for one reason or another and we need to support them as far as possible to meet those needs.

[Baroness Butler-Sloss]

I am talking about a very specific group of children. Some trafficked children may seek asylum, but that is a completely different matter. I am talking about children who have through the NRM been positively identified as trafficked or are going through the process of identification—one or the other. I am not talking about children who might possibly be trafficked but who have not yet gone through that identification.

The reason for tabling the amendment was as a wake-up call to local authorities. I totally understand the extent to which they are overburdened and underresourced—I said that—but this small group of children is slipping through the net. I was delighted to hear what the Minister had to say about missing children, because there is a serious lack of data from local authorities on children who go missing. They ought to be able to identify what sort of children they are. Are they the children who keep going missing from children’s homes? We know that there are children who go missing three, four or five times a week. That is not the sort of child we are talking about. The group we should worry about is the child who goes missing and is never identified again as a child who was in a children’s home or a foster home. Local authorities do not even know. They have to get their act together to know that those are trafficked children.

I welcome the opportunity to discuss that further with the noble Baroness. I have no doubt that the group of which I am a co-chairman would very much like the opportunity to do that, particularly the chairman of the Human Trafficking Foundation, Anthony Steen, who was previously an MP who worked tirelessly for this cause. This children issue is one that we are truly concerned about. I very much welcome what the Minister said and I am happy to withdraw the amendment.

Amendment 39 withdrawn.

Committee adjourned at 7.49 pm.

House of Lords

Monday 14th October 2013 Lords Chamber

Monday, 14 October 2013.

14:30

Prayers—read by the Lord Bishop of Leicester.

Introduction: The Lord Bishop of Sheffield

Monday 14th October 2013 Lords Chamber

14:36

Steven John Lindsey, Lord Bishop of Sheffield, was introduced and took the oath, supported by the Bishop of Leicester and the Bishop of Wakefield, and signed an undertaking to abide by the Code of Conduct.

Introduction: Lord Bourne of Aberystwyth

Monday 14th October 2013 Lords Chamber

14:41

Nicholas Henry Bourne, Esquire, having been created Baron Bourne of Aberystwyth, of Aberystwyth in the County of Ceredigion, and of Wethersfield in the County of Essex, was introduced and took the oath, supported by Lord Elis-Thomas and Lord Hunt of Wirral, and signed an undertaking to abide by the Code of Conduct.

Supermarkets: Pricing

Monday 14th October 2013 Lords Chamber

Question

14:46

Asked by

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what discussions they have had with the major supermarkets on delivering simple and clear pricing for consumers.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)]

The Government agree that supermarket prices should be clear so that consumers can make informed choices. The Minister for Employment Relations and Consumer Affairs held a working group meeting with the supermarkets in May to discuss unit pricing and clarity of shelf-edge labels. We are working closely with the supermarkets and look forward to their continued positive engagement to make improvements that help consumers compare pricing information.

[Lord Kennedy of Southwark (Lab)]

Does the noble Viscount not realise that we have a cost of living crisis in this country? Can he tell the House why the Government are not doing more to ensure that consumers are properly informed of the cost of everyday essentials?

[Viscount Younger of Leckie]

I should reassure the noble Lord that we are doing much. Since the working group in May, BIS has continued to engage with supermarkets to explore where further improvements can be made, and has agreed to work with supermarkets to identify barriers to doing this. We are aware that there is a bite on household spending and we are doing as much as we can to deal with that.

[Baroness Gardner of Parkes (Con)]

My Lords, is the Minister aware of the problem for older people, or people in single family units? The advantageous deals are three for two, or buy two and get one for a much cheaper price. While I think that is very desirable for people who have large numbers to feed, it is definitely a disadvantage for people who want smaller quantities. Quite a lot of food must also be wasted, because people cannot use it. Will he take up with the supermarkets the possibility of providing these large super-deductions, but also providing things that can be bought in smaller helpings?

[Viscount Younger of Leckie]

My noble friend makes a good point, and it is one of the issues that we are discussing earnestly with the supermarkets. However I should point out that “buy one, get one free” deals represent a small proportion of supermarket promotions, the majority of which are temporary price reductions. We are also in discussions over the Waste and Resources Action Programme, which works with retailers to encourage alternative promotions for perishable goods.

[Lord Kinnock (Lab)]

My Lords, is not the sense of crisis heightened by the fact that the Prime Minister appears not to know the price of a loaf of bread? Could the Minister show rather more urgency in trying to insist that retailers, including supermarkets, have a uniformity of descriptions of the pound and kilogram cost of items on their shelves so that people can make a cogent choice in deciding what the best value for money is?

[Viscount Younger of Leckie]

The noble Lord raises an important point. He may be aware that there is legislation in place, in the form of the Price Marking Order 2004, which requires the selling price and, where appropriate, the unit price—65p per 100 grams, for example—to be clearly displayed on products being offered by traders to consumers. We take this seriously and we are working hard to improve communication about and the display of these items.

[Lord Razzall (LD)]

My Lords, I assume that the Minister would wish to be congratulated on the forthcoming introduction of a consumer affairs Bill sponsored by his ministerial colleague, Jo Swinson. Can the Minister confirm that the Bill will deal with the sort of practices to which the noble Lord, Lord Kennedy, has referred?

[Viscount Younger of Leckie]

Indeed, although I have not yet seen the details of that particular Bill. Much is being done with the OFT, which is working with the supermarkets to develop a set of principles to address the concerns over special offers and promotions for food and drink. For example, the principles state that pre-printed value claims on packs, such as “Bigger pack, better value”, must be true.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, given the cost of living crisis, will the noble Viscount apologise to consumers for doing nothing about price increases, particularly the latest energy price rise? Will he tell the House why, for the first time since the war, he thinks that the Red Cross has had to launch an emergency food aid plan for our own hungry, asking volunteers in supermarkets to get shoppers to donate goods?

[Viscount Younger of Leckie]

I have no intention of apologising but I have recognised that there is a bite on household expenditure. I point out to the noble Baroness that the biggest drivers of UK food price inflation are global commodity prices, exchange rates and oil prices. As regards energy pricing, the Energy Bill, which is being led by the Department of Energy and Climate Change, will ensure that all households get the best deal for their gas and electricity by giving legislative backing to Ofgem’s retail market review.

[Lord Tebbit (Con)]

My Lords, in view of the crisis in the cost of government, would my noble friend consider getting together a group of senior retailers who would be asked to look at manifestos before an election, price up the promises and make sure that we know the unit price of government as proposed between the various parties?

[Viscount Younger of Leckie]

My noble friend makes an interesting point and it is firmly noted.

[Lord Harris of Haringey (Lab)]

My Lords, given the very rapid rise in food prices in this country, which is double the rate in Germany and France, can the noble Viscount comment on the fine of £300,000 imposed on Tesco for not properly declaring or misrepresenting a cut in price it claimed that it had made? Are the Government putting enough resources into the consumer protection world to make sure that consumers are protected against unfair offers of that sort? I declare an interest as chair of the National Trading Standards Board.

[Viscount Younger of Leckie]

I can reassure the noble Lord that we take enforcement very seriously. As the noble Lord will be aware, enforcement of the legislation is undertaken by the Office of Fair Trading and trading standards boards. If there is an issue, the first thing that complainants should do is go to trading standards. I am also extremely aware of the major supermarket that was prosecuted for giving a misleading price on strawberries.

[Lord Elton (Con)]

My Lords, will the Minister take on board the plight of elderly single people trying to follow a balanced diet? They have to try to find a loaf of bread that does not go stale before they have finished it because the loaves are all too big.

[Viscount Younger of Leckie]

Indeed, that point is also noted.

[Lord West of Spithead (Lab)]

My Lords, so that I am not caught out in the future, will the Minister tell us exactly what is meant by a loaf of bread? There seem to be so many of them.

[Viscount Younger of Leckie]

I hope that the noble Lord will forgive me if I say that that goes slightly beyond my brief. However, I happen to know the price of a loaf of bread.

Bank of England: Monetary Policy Committee

Monday 14th October 2013 Lords Chamber

Question

14:54

Asked by

[Lord Barnett]

To ask Her Majesty’s Government when the Chancellor of the Exchequer last met the Governor of the Bank of England in his capacity as chairman of the Monetary Policy Committee, and what they discussed.

[Noble Lords]

Hear, hear!

[Lord Newby (LD)]

My Lords, I am sure that the whole House will wish to join me in congratulating the noble Lord on his 90th birthday. There are clearly two Barnett formulae. There is first the public one that we regularly discuss in your Lordships’ House, but secondly there must be a secret elixir that enables the noble Lord to continue to play an energetic part in our deliberations undiminished by the passage of the years. We wish him many happy returns.

The UK’s Monetary Policy Framework, set out in the Bank of England Act 1998, gives operational responsibility for monetary policy to the independent Monetary Policy Committee. The Chancellor of the Exchequer has frequent discussions with the Governor of the Bank of England on a wide range of issues in the UK economy.

[Lord Barnett (Lab)]

My Lords, I thank the noble Lord for his initial comments. In the light of those, I had better be kind to him, but I am afraid that when he answered a similar question on 9 July, I believe that he misled the House on an important issue of the independence of the Monetary Policy Committee and the Governor of the Bank of England. I gather that he was depending on a command paper and on an exchange of letters between the Chancellor and the governor, but surely you cannot change a major Act of Parliament—the Bank of England Act 1998—by an exchange of letters and a command paper. That is clearly impossible. Can he explain how he has done that? The independence of the Monetary Policy Committee is important, as the new governor has told the country that he believes in long-term forecasts. He has forecast interest rates which clearly would be affected by QE, on which he is apparently being given unfettered power. Whether or not he has those powers, could the Minister explain and confirm that the Chancellor has agreed to allow the governor and the Monetary Policy Committee unfettered control over interest rates and QE?

[Lord Newby]

My Lords, that is what the Bank of England Act says. The Monetary Policy Committee is operationally independent. The remit of the Monetary Policy Committee has to be set by the Governor of the Bank of England. It has to be renewed every year. It was renewed this year. The difference between this year and previous years is that the Chancellor asked the governor to look at possible methods of forward guidance which would give greater certainty to the markets about the medium-term movement of interest rates and, indeed, QE. That is exactly what the governor did, in line with the request from the Chancellor which was in line with the provisions of the Bank of England Act.

[Lord Bilimoria (CB)]

My Lords, I join in wishing the noble Lord, Lord Barnett, a very happy 90th birthday. He has asked an excellent question in that it relates to forward guidance. For a long time I have been saying that when setting interest rates the Governor of the Bank of England and the Monetary Policy Committee should look not just at inflation targeting but at the wider economy. This is excellent news. However, is it wise that the governor should tie himself down to a specific level of 7% unemployment, after which interest rates are to be raised, unless inflation is going out of control? When does the Minister think that the 7% will be achieved? Secondly, would it not have been wiser to have had a wider remit taking into account other aspects of the economy, not just inflation targeting?

[Lord Newby]

As the noble Lord says, the governor is now looking at unemployment in terms of when interest rates might change, but there is no iron rule that the moment unemployment rates hit 7%, interest rates will go up. There are three potential arguments which would mitigate against that, of which by far the most important is if the outlook for inflation was higher. As to when we might reach 7%, in August when the Bank of England published its report suggesting this, it thought it would be in the third quarter of 2016. The good news is that since then the economy has grown more quickly, and the consensus is now settling around summer 2015.

[Lord Peston (Lab)]

My Lords, will the Minister cast his mind back to when your Lordships debated what is now the Bank of England Act? My noble friend Lord Barnett and I put down an amendment precisely to achieve the flexibility which is in this command paper. We were not told that the flexibility was already there, which is what the command paper says. We were told that we were idiots, and that the remit of the Monetary Policy Committee was to hit the inflation target—only after that could it look at anything else. The Government have produced a sleight of hand here. I favour it, let me add, but it is a sleight of hand.

Will the noble Lord consider the central question which arises in this context, bearing in mind that the two greatest liberal thinkers of the 20th century, Lord Beveridge and Maynard Keynes, both placed the attainment of full employment at the centre of government macroeconomic policy? Can the noble Lord tell us whether under the new regimen that we are now offered, there is any hope within my lifetime—younger Members may have something more to look forward to—that we shall at last get back to what those two great thinkers said: full employment is a must?

[Lord Newby]

My Lords, I am sure that the noble Lord welcomes the fact that, for the first time, the Bank of England is looking at the employment rate as a way of deciding on the speed at which interest rates might change. I am sure he would agree, as Keynes probably would, that the quickest way to bring the rate of unemployment down is to get the growth rate moving more quickly. I am sure that he will be pleased that all the projections of growth are now being revised rapidly upwards. The IMF, for example, last week revised upwards its growth rate for this year from 0.09% to 1.4% and for next year from 1.5% to 1.9%.

[Lord Flight (Con)]

In the discussions that the Minister is having with the Chancellor and the Governor of the Bank of England, are they focusing on what the extent is of imported inflation or deflation compared to domestic inflation? It was largely a failure to understand that domestic inflation was far higher than the mixed bag that led monetary policy under the previous Government to go off the rails.

[Lord Newby]

My Lords, in recent years, there has been a very different mix of imported and domestic inflation, and we have not seen any significant degree of domestically generated inflation. That remains pretty much the same today. Fortunately, we are a very long way from the 1970s and 1980s, when domestically generated inflation was the single biggest problem of macroeconomic management.

Church of England: Appointment of Bishops

Monday 14th October 2013 Lords Chamber

Question

15:02

Asked by

[Lord Trefgarne]

To ask Her Majesty’s Government what discussions they have had with the Church of England about the procedure for the appointment of bishops in the Church of England.

[Lord Wallace of Saltaire (LD)]

My Lords, the current procedure for the appointment of bishops to the Church of England was agreed by the previous Government in 2008 after consultation with the church and the publication of a White Paper, The Governance of Britain. There have been no further discussions between the Government and the church on this issue since 2008 and the Government see no need to initiate any such discussions.

[Lord Trefgarne (Con)]

My Lords, I am grateful to the Minister for that Answer. Is it not the case that bishops are retiring faster than they are being appointed? In a little while, there will be none at all. If the most reverend Primate’s diary is so congested that he cannot find time for additional meetings of the Crown Nominations Commission, would it not be a good idea to reappoint the noble Lord, Lord Luce, who chaired that committee so effectively when it came to choosing the most reverend Primate?

[Lord Wallace of Saltaire]

My Lords, I am informed that there are currently four vacancies for diocesan bishops and two forthcoming retirements. There is also the issue of the new combined diocese of Leeds. I accept that the Church of England has a rather lengthy consultation procedure before new bishops are appointed. I spoke to the joint secretaries of the Crown Nominations Commission last week, who were in Hereford consulting members of the diocese on the nature and needs of the diocese and thus the characteristics they wanted in a new bishop. That seems entirely desirable. I understand that in the diocese of Guildford, with which the noble Lord, Lord Trefgarne, will be concerned, the bishop is due to retire at the end of November. It is likely that his successor, after this consultation, will be agreed in June or July next year.

[Lord Faulkner of Worcester (Lab)]

My Lords, what assistance are Her Majesty’s Government giving to the most reverend Primate the Archbishop of Canterbury in redressing the gender imbalance on the Bishops’ Benches in your Lordships’ House?

[Lord Wallace of Saltaire]

My Lords, the Church of England is moving with all deliberate speed towards the appointment of women bishops. I think it quite possible that the first women bishops will be consecrated before we have reached the next stage of House of Lords reform.

[Baroness Brinton (LD)]

My Lords, synthesising the two previous questions, will the Minister tell us how many women clerics are in a senior position in the Church of England? Does he agree that a large number of vacancies might be helpful for the promotion of the majority of very good senior women to bishoprics as and when the Church of England approves their appointment?

[Lord Wallace of Saltaire]

It is desirable that dioceses nevertheless continue to appoint bishops. I know a number of senior women in the Church of England and have a great deal of respect for them. One of them is the wife of my good friend the Vicar of Putney. I have no doubt that in time, the Church of England will have a number of excellent women bishops in the same way that it now has a number of excellent archdeacons, canons, and others from the female sex.

[Lord Foulkes of Cumnock (Lab)]

My Lords, will the Minister confirm that one of the great things about Church of England bishops is that their number in this House has an upper limit, whereas coalition Peers seem to be flooding in with no apparent upper limit? Are there any members of the Liberal Democrat Party who are not in the House of Lords?

[Lord Wallace of Saltaire]

I am sorry that the noble Lord, Lord Foulkes, did not take the other path appropriate to the Question, which is that the Bench of Bishops is the only section of this Chamber that has an upper age limit, which is 70.

[Lord Cormack (Con)]

My Lords, after that hilarious question from the noble Lord, Lord Foulkes, does my noble friend agree with me that it is somewhat unfortunate that Episcopal vacancies are now advertised? Is there not an anti-vocationary element there?

[Lord Wallace of Saltaire]

It may simply be a useful movement towards transparency. I know there are those who would like the Church of England to remain as it was 150 years ago or more, but as a member of the Church of England, I am extremely happy that it has moved and modernised over the last few years.

[The Lord Bishop of Leicester]

My Lords, is the Minister aware that, typically, the Crown Nominations Commission consults some 100 members of civil society in each region to which appointments are made; that legislation to bring forward the possibility of women bishops is now before the General Synod and it is anticipated that it will be brought into law within two years; and that the Archbishop of Canterbury takes a very keen interest in the proceedings of this House, and will take careful note of any concerns about the speed of Episcopal appointments made in the course of this Question Time?

[Lord Wallace of Saltaire]

I thank the right reverend Prelate for his question. In consulting when preparing for this Question, I was struck by how many of the people I spoke to said, “You have to understand that the workload of a diocesan bishop is enormous and that some wish to retire before the age of 70 because they feel they have done more than they can sustain for more than 10 to 15 years”.

[Baroness Royall of Blaisdon (Lab)]

My Lords, will the Minister join me in congratulating the Church of England on all the splendid work that it does in its dioceses, especially with people who are suffering so much under the austerity programme of this Government? Will he also join me in congratulating the Church of Wales on its vote in favour of women bishops?

[Lord Wallace of Saltaire]

I am very happy to do so, and I look forward to the Church of England following in good time.

Ministry of Defence: Dogs

Monday 14th October 2013 Lords Chamber

Question

15:08

Asked by

[Baroness Oppenheim-Barnes]

To ask Her Majesty’s Government what steps are taken by the Ministry of Defence to retrain and rehome dogs when their period of duty in the military at home or abroad is complete; and what proportion of those dogs are returned to the United Kingdom.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, military working dogs and their handlers provide a valuable range of specialist roles worldwide. The dogs’ welfare is a primary consideration during and after their service. The MoD rehomes all suitable dogs, often with someone closely involved when the dog was serving and with families who are carefully vetted. There are no time restrictions on a dog being kept while a suitable home is looked for. The majority of dogs serving overseas are re-homed in the United Kingdom.

[Baroness Oppenheim-Barnes (Con)]

I thank the Minister for that reply. Is he aware that I am extremely pleased with it, as will be the highly regarded Dogs Trust? These dogs have served their country very well at the side of the brave soldiers, whose lives they often save, and it is good to hear that the Army is treating them humanely on retirement.

[Lord Astor of Hever]

My Lords, I am delighted that my noble friend is pleased with my Answer. I join her in paying tribute to the wonderful work done by the Dogs Trust. All personnel from the military working-dog community do everything that they possibly can to rehome all suitable dogs at the end of their service life. Many dogs, understandably, are adopted by their handlers. We have rehomed around 360 dogs during the past three years and currently have 150 people waiting to offer a home to a suitable dog.

[Lord Tomlinson (Lab)]

When the Minister has solved the problem of dogs, will he turn his undoubted abilities to solving the problem of the £2 billion cash surplus that the Ministry of Defence has apparently been unable to spend, as was reported in the Sunday Times yesterday, to the detriment of major missions in the Middle East, where we have significant defence interests?

[Lord Astor of Hever]

My Lords, I am sorry to disappoint the noble Lord but this Question is specifically on dogs. He can table a Question on the issue that he has raised at some other point.

[Lord Trefgarne (Con)]

My Lords, is my noble friend aware that I have had the privilege of owning two dogs that were retired from military service, which of course I purchased from the Ministry of Defence, and that both were beautifully looked after and were quite excellent?

[Lord Astor of Hever]

My Lords, I am really pleased to hear what my noble friend says. There is great interest in this issue, particularly in the different types of military working dogs. I have asked my department to put in the Library a list of all the different types of specialist and protection dogs, as well as the reasons why a small number of working dogs were killed during the past three years—I think that it was two this year, one the year before and one the year before that—along with information on the number of dogs that were put to sleep and the reasons for that.

[Lord Harris of Haringey (Lab)]

My Lords, I accept that this Question is primarily about the rehoming of military dogs, but is there not also a problem with the substantial number of ex-servicemen who end up sleeping on our streets because they are not afforded the proper moves into civilian life? I would be grateful, if he cannot do so today, if the Minister could perhaps report to the House at some future stage on the steps being taken to ensure that ex-service personnel are treated appropriately by this society?

[Lord Astor of Hever]

My Lords, I am very happy to do that at a future point in a defence debate, but this is a good-news story about what we are doing for military dogs. I am very unhappy to see us going off-piste.

[Baroness Doocey (LD)]

My Lords, will the Government examine the enactment of “Robbie’s law” in the United States, which has led to a huge reduction in the number of retired dogs that have to be put to sleep, with a view to introducing a similar system in this country?

[Lord Astor of Hever]

My Lords, I am very happy to look at that. The situation in this country is that the decision to put a dog to sleep is taken by a veterinary officer and only after all possible avenues have been exhausted. From 2010 to June 2013, sadly, 300 dogs had to be put down, and the reasons for this included injury, illness and age-related welfare reasons. As I have said, those cases were looked at by veterinary officers and the decision was taken only as a last resort.

[Lord West of Spithead (Lab)]

My Lords, does the Minister agree that we have a good track record in this country of looking after animals within the military? I am sure he will be interested to hear that when we did Options for Change at the beginning of the 1990s, our one study into animals within the forces, known colloquially as the Winalot study, discovered, to the surprise of the Navy, that Army and Air Force dogs had a higher per diem rate for food than officers and men within the Royal Navy.

[Lord Astor of Hever]

My Lords, that is a very interesting question and I will consider it closely.

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, if I may shift the emphasis from the Government to dogs, is my noble friend aware that Greek vases demonstrate a considerable use of dogs two-and-a-half millennia ago? That tradition has been maintained for a very long time—to the enormous credit of the dogs.

[Lord Astor of Hever]

My Lords, I am learning a lot today.

[Lord Rosser (Lab)]

My Lords, last week it was government policy being thwarted by badgers moving the goalposts; this week it is defunct, deceased dogs causing headaches. Presumably the Minister can give an assurance that no decisions to put down dogs are made on financial grounds, bearing in mind the recent disclosures about the hundreds of thousands of pounds being consumed within the Ministry of Defence on calls to 118 numbers at a time when money is in short supply. Will the Minister also clarify what percentage of military working dogs are put down before they are retired, and what percentage are retrained or re-homed on retirement?

[Lord Astor of Hever]

My Lords, I can give the noble Lord the commitment that no dogs are put down for financial reasons. The vast majority of dogs had to be put down as the animals’ condition impeded and reduced their quality of life. As noble Lords may know from sad personal experience, everyone will at times have to put animals to sleep when it is the only option. The death or destruction of a military working dog is subject to formal investigation and report, as required. Dogs are not usually retrained during their military service. The role that a dog undertakes is normally one which the dog has a natural inclination to perform as a result of breed characteristics and behavioural traits.

[Lord Elton (Con)]

My Lords, there are occasions when it is impossible to find a successor owner for the dog. Would my noble friend bear in mind the work of the Cinnamon Trust, which has a fascinating remit of supplying bereaved people with dogs which have also been bereaved, and homing other difficult cases in a way which promotes the happiness of both the animal and the human?

[Lord Astor of Hever]

My Lords, my noble friend makes a very good point. I will certainly study carefully the excellent work of the Cinnamon Trust.

Inheritance and Trustees’ Powers Bill [HL]

Monday 14th October 2013 Lords Chamber

Motion to Agree

15:17

Moved by

[Lord McNally]

To move that the Bill be referred to a Second Reading Committee.

Motion agreed.

Care Bill [HL]

Monday 14th October 2013 Lords Chamber

Report (2nd Day)

15:17

Clause 9: Assessment of an adult’s needs for care and support

Amendment 32

Moved by

[Earl Howe]

32: Clause 9, page 8, line 27, leave out paragraph (d)

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I shall speak also to the other amendments in this group, Amendments 33, 36, 37, 39, 40, 42 to 45 inclusive, 62, 90, 91, 100, 101 109, 112, 115, 116 and 117. In Committee, we had a wide-ranging and informed debate on assessment. I have reflected on the issues raised and I have tabled amendments which I hope noble Lords will agree address those concerns and clarify our intentions around the assessment process.

In Committee, we considered a provision which was intended to ensure a focus on the adult’s strengths and how these can contribute towards the outcomes they want to achieve as part of the assessment. This provision was drafted to support our aim to build the care and support system around the person and to consider the adult’s own capabilities: what they can do—as well as their needs—and what they cannot do. While most noble Lords agreed with the principle, a concern in Committee was that the provision set out in the Bill might be wrongly interpreted by local authorities as allowing them to place additional caring responsibilities on family and friends rather than providing care and support. Amendments 32 and 33 look to address the concerns that arose.

Amendment 32 removes the requirement to assess the adult’s capabilities and other matters as part of the needs assessment. Amendment 33 provides for a consideration of such matters to happen separate to, but alongside, the needs assessment. Local authorities should have a discussion with adults or carers in parallel to the assessment, considering how their own capabilities and any other matters can help to achieve the outcomes they want to achieve on a daily basis. These amendments remove the source of concern, while retaining the important point of policy on which we agree.

In Committee, there was also concern as to whether the assessment process was sufficiently supportive of the focus of the Bill on the prevention of need. We have considered this and have also brought forward amendments to strengthen this focus. The second part of Amendment 33 and Amendment 45 require a local authority to consider at the time of the assessment whether any universal services available locally, whether provided by the local authority under Clause 2 or Clause 4 or by another organisation, would be of benefit to the person. This replaces the previous provision in which such a consideration took place only after the eligibility determination. This would support situations where, for example, a local authority might decide to defer the final eligibility determination until the person or carer has taken part in a preventive service, such as a reablement programme. Amendments 36 and 37 make similar provision in relation to carer’s assessments. Amendments 90, 91, 100, 101, 109 and 112 make equivalent changes in relation to the assessment of children, child carers and young carers.

In Committee, the noble Lord, Lord Low, pointed out that while the regulation-making powers would provide for an expert to carry out complex assessments, they did not require it. I assured the noble Lord that this was not our intention and that I would look again at the provisions to ensure they provided for this. Having considered the provisions I have concluded that they needed to be strengthened to provide for when an expert must carry out an assessment for complex needs, such as for a person who is deafblind. Amendment 39 rectifies this, and I would like to thank the noble Lord for raising this in Committee.

Through Amendment 40, we will require assessors who are trained but may not have experience of carrying out an assessment for a specific condition to consult a person with experience in that area. For example, an assessor who normally assesses older people who is asked to assess a person with learning disabilities would have to consult a person with experience in that condition.

I turn now to Amendments 42, 43, 44, 62, 115, 116 and 117. Members of the Committee asked to see clear links between this Bill and the Children and Families Bill, which is also before the House. I share their view that both Bills must work together so that no one falls through a gap in the legislation. Amendment 42 ensures that a local authority can combine an adult’s assessment with any other assessment it is carrying out, whether under this Bill or other legislation, as long as the individual or individuals being assessed agree. For example, it clarifies that the authority can carry out a needs assessment with a young carer’s assessment. Amendment 43 allows the authority to carry out a needs or carer’s assessment jointly with another assessment being carried out by another body, whether of that person or a person relevant to the situation, as long as the individual or individuals being assessed agree. Amendment 62 ensures similarly that local authorities have powers to combine care and support plans and support plans with any other plan of that individual or another. Amendments 115, 116 and 117 make similar provision for a child’s assessment, a child carer’s assessment and a young carer’s assessment when they are transitioning to adult services. These amendments reflect similar government amendments tabled to the Children and Families Bill and reflect the synergy between both Bills and how they work together to ensure that the needs of children and young carers are considered during the adult’s assessment.

I have listened to the strength of the arguments made in Committee. I hope your Lordships will agree that the amendments I have tabled address the concerns that were raised and that they strengthen and clarify the assessment provisions. I beg to move.

[Baroness Pitkeathley (Lab)]

My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.

Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.

Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,

“which might be available in the community”.

If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?

Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.

[Lord Low of Dalston (CB)]

My Lords, I very much welcome the Government’s Amendments 33, 39 and 40. So far as Amendments 39 and 40 are concerned, in Committee, as the Minister has remarked, I sought a strengthening of Clause 12(1)(f) to ensure that regulations would specify the circumstances in which a specially trained person must carry out an assessment or a reassessment of persons who need one. The Minister was kind enough to thank me for raising the point, and I thank him very much for bringing forward these amendments. I am delighted that the Government have come forward with amendments that effectively meet my wishes, recognising that the Bill, as initially presented to the House, did not precisely reflect the Government’s intention.

Talking of specialist provision, I kick myself that I forgot to refer to this in connection with Amendment 26 from the noble Baroness, Lady Meacher, about the need for local authorities to commission a full range of services to meet the diversity of their residents’ needs. I meant to illustrate this by reference to the situation of deafblind people who are all too often offered mainstream services or services designed for those with a single sensory loss instead of the specialist provision appropriate to their particular needs. Perhaps, in welcoming the Government’s amendment on specialist assessments, I can slip in the thought that if local authorities are required to ensure that sufficient services are available for meeting the needs for care and support of adults in their area, they would rightly be under some pressure to identify the full range of deafblind people’s needs, and those with other specialised needs as well, and plan accordingly.

15:29

On Amendment 33, I argued in Committee—I fear at too great a length for some, but I shall try not to repeat that mistake today—that the Bill would be much stronger if local authorities were also placed under a duty to take prevention into account in exercising any of their functions under Part 1, not just those relating to direct provision of care. Failure to do this meant that there was little in the Bill for those not deemed eligible for care and support, even though their needs might be quite considerable. It also did little to advance the Government’s own strategy of rebalancing the care system away from crisis intervention and in a more preventive direction.

The new government amendment, however, embraces a more strategic approach by obliging local authorities to consider whether measures short of full care and support, including anything which might be available in the community and not just directed at individual care, could assist the individual. This could ensure that those who did not reach the eligibility threshold were not bereft of support entirely and would in effect make the eligibility threshold go further. This is very much to be welcomed, and makes the Government’s setting of the eligibility threshold at the equivalent of “substantial” somewhat easier to accept.

However, I ask for an explicit reassurance on one or two points; perhaps the Minister might like to make a note of them in order to respond to them when he comes to wind up. I would like a reassurance that preventive services will remain universal and free of charge. We know that entitlement to many reablement services is assessed against the FACS criteria. We also know that councils have previously tried to charge for them even though it is illegal to do so. An explicit commitment has been made to minor aids and adaptations continuing to be provided free and without the need for a financial assessment. No similar statement has been made about intermediate care. I believe that the House would very much welcome the Minister giving the same explicit commitment to intermediate care services, including most reablement services, continuing to be free of charge. There is evidence to indicate that councils will look to restrict access to preventive support. I would therefore welcome the Government’s underlining their commitment to universal and uncharged preventive services.

In Committee, the Minister assured us:

“Under this Bill, local authorities would be expected to consider how the provision of reablement and other types of care and support could contribute to the achievement of an individual’s desired outcomes as part of the assessment process. Clause 13(2)(b) makes it clear that, in determining eligibility, local authorities must consider if the person would benefit from preventive services—whether or not they have eligible needs. This would include reablement services”.—[Official Report, 9/7/13; col. 262.]

However, research undertaken by the British Red Cross last month found that 64% of councillors think that preventive services provided through the duty set out in Clause 2 will be focused on adults whose needs for care and support meet their council’s eligibility criteria. It would be helpful if the Minister could give an assurance that the commitments made in respect of Clause 13(2)(b) attach to its new placement in Clause 9, so that local authorities must consider during an assessment if the person would benefit from preventive services, including reablement services, whether or not they are likely to be determined as having eligible needs.

In Committee, the noble Earl gave me an assurance, as he has observed in speaking to the government amendment, that,

“we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations”.—[Official Report; 16/7/13; col. 695.]

However, research undertaken by the British Red Cross last month found that 60% of councillors think that services offered through the duty set out in Clause 2 are more likely to be charged for than to be free at the point of need. Therefore, can the Minister give an assurance that, as per the Community Care (Delayed Discharges etc.) Act (Qualifying Services) (England) Regulations 2003, intermediate care will continue to be required to be provided free of charge to any person to whom it is provided, for any period, up to and including six weeks, and without the need for a financial assessment?

[Baroness Meacher (CB)]

My Lords, Amendment 41 is a probing amendment, so I will speak briefly. Before I say anything else, I applaud the Minister for the raft of amendments in this group. I was particularly pleased to see the amendments in relation to young carers, although this is not relevant to Amendment 41. However, government Amendments 32, 33, 36 to 38 and—perhaps in particular—39 and 40 are, of course, relevant to this amendment. My Amendment 41 requires that regulations that make further provision for carrying out a needs or carers’ assessment will specify the circumstances in which a person’s social care needs are to be regarded as complex—the amendments do not refer to that term, so I would like a further clarification of that—and that having defined “complex needs”, social workers should always be involved in the assessment of cases meeting that criterion. That is the proposal of the College of Social Work. I should say that the involvement of a professional social worker does not mean the exclusion of all others. Clearly, if a professional social worker is dealing with a deafblind person, he would need to involve a specialist in that particular group of disabilities.

The college makes the first point that a good assessor sets out to create a complete picture of a person’s situation, strengths, capabilities and aspirations. Social workers are trained and recruited on the basis that they have the necessary cognitive and emotional depth to undertake those assessments. The second point is that people with complex needs generally have an awful lot of different services to which they need to relate if all their complex needs are to be met. The role of the care co-ordinator therefore becomes vital in those situations; care co-ordinators tend to be professional social workers.

As the noble Earl knows, the Law Commission argued that where a person has complex or multiple needs, a proportionate assessment would require an in-depth and comprehensive exploration of those needs. It is difficult to imagine that somebody other than a professional social worker would be equipped to do that. The types of situation which would be treated as complex cases include: where a person is subject to legislation or national guidance; where a person is or may be subject to abuse; where there is conflict between a person and a member of their family or their carer; and where there is a need to support the applications of individuals or their families for continuing healthcare funding.

Government Amendments 32, 33, 39 and 40 could pave the way for regulations which would meet the concerns addressed in Amendment 41. The noble Earl will know that our particular concern is for clients with learning difficulties, mental health problems and, in particular, dementia—people whose needs will be quite complex and difficult to assess. You need people who have been trained in that sort of work. Can the Minister say, with respect to these vulnerable groups, whether regulations will clarify their need for a professional social work assessment, albeit involving others as well? If regulations will not deal directly with the assessment of people with complex needs, and in particular with those who have all those mental health problems, can the Minister explain what provision he plans to make in order to ensure that the needs of these particularly vulnerable people will be properly assessed and addressed?

[Lord Dubs (Lab)]

My Lords, I welcome how far the Minister has moved from Committee to today. I hope that noble Lords will not think it churlish of me to say that perhaps he might be persuaded to move a little further. I will speak first to Amendment 60, which seeks to oblige a local authority to provide advice and information about what can be done in the event of an emergency, or if needs change. I am specifically talking about what I think we have referred to before as people with fluctuating conditions and needs. We know that there are many millions of people in the country who have fluctuating conditions such as multiple sclerosis, rheumatoid arthritis, HIV, Crohn’s, colitis, epilepsy and Parkinson’s disease, and there may be many others. Therefore, we are talking about a significant number of people who will be affected by the provisions of this Bill.

Not long ago I was talking to a woman in a wheelchair who had MS. She was very lively, bubbly and sparky, and she said to me: “You know, I’m not always like this. Some days I go down and I can’t even get out of bed, so don’t judge my condition by the way you see me today”. I took that very much to heart, and it is clearly the sort of situation that this amendment is about. As the Bill is currently drafted under Clause 25, it would not really make provision for such situations.

This amendment is actually operationally simple. It would help to ease the pressure placed on formal and informal carers, and would give them more certainty. Not only will it ensure that individuals get the timely care that they need when they need it but, equally importantly, it has the potential to prevent costly and unnecessary hospital admissions. If this amendment is not in place, there is always the possibility that with a downward fluctuation in condition, the person without the support will then have to be hospitalised. That in itself is costly and is utterly undesirable from the point of view of the person who could be helped in the home if this amendment were to be passed.

Local authorities are surely in a position to provide better tailored care, to promote confidence and control and allow people to prepare for such rises and falls in their care needs. The current drafting does not allow for it. A snapshot was taken by the NRAS—the National Rheumatoid Arthritis Society—which indicated that currently more than 30% of respondents with rheumatoid arthritis have been admitted to emergency care as a result of a flare-up in the disease in the past year. This is something which I trust could be prevented if we changed the way in which this clause was to operate. A survey of 1,000 people with MS revealed that 95% of respondents felt that better services during a relapse or a sudden deterioration of their condition would help them to maintain their independence. More than 80% said that they want to be able to plan their care and support in advance of that care being required. This amendment would help people whose conditions might suddenly worsen and, as I said earlier, would potentially prevent unnecessary and costly hospital admissions.

I turn to Amendment 61. As the wording of the Bill in Clause 27 states, local authorities have the power to generally review care plans. However, they are not required to specify when they anticipate that these reviews will take place. This amendment seeks to put some certainty into the process. There should be an agreed date between the adult and the local authority upon which a review of the care and support plan would be offered. I envisage a discussion between the local authority and the person concerned about the best way in which their care needs can be met.

An anticipated review date, agreed between the local authority and the adults, would provide stability and certainty to those being cared for. It is not a large change but it would be beneficial for the people concerned. I do not want to spell out with examples where people have said what a difference it would make if they had this element of certainty. I would like this amendment to be passed, which will give the adult the confidence that their care would continue as agreed until the specified date or until the adult themselves chooses to request a review in line with Clause 27(1)(b).

[Lord Mackay of Clashfern (Con)]

My Lords, I generally support these government amendments, and thank the Minister for introducing them. There is just one small point I want to mention, which has been raised in my mind by the observations made by the noble Baroness, Lady Pitkeathley, in relation to Amendment 33.

I had understood paragraph (b) of Amendment 33 to carry the implication that if something was found that would benefit the person in question as a result of examination of what is in (b), the needs assessment would include that. However, I just wonder whether the last part creates the possibility that if the benefit can be received from something in the community, outside the provisions that the local authorities have made, that would be excluded; in other words, it would tend to reduce the needs assessment. I had rather thought that the proper construction of this phrase would mean that that also should be taken into account as included in the needs assessment, and that, where it was available, the cost of it should be included in the needs assessment. Perhaps my noble friend will be able to clarify that point for me.

15:45

[Baroness Wheeler (Lab)]

My Lords, this large group of amendments reflects issues that we covered extensively in Committee. We largely support the amendments as they address the suitability of the extent to which friends and family should be acknowledged in the process of assessment of the needs of adults, carers and young carers for care and support.

The group includes amendments on young carers’ support and assessment needs in relation to the Care Bill and its interface with the Children and Families Bill, about which I spoke last week. I do not intend to go into this issue again, other than to stress our support and relief that young carers are recognised in a joined-up way in both Bills. In particular, we welcome the safeguard in this group of amendments, which ensures that local authorities are able to combine assessments relating to adults being assessed with assessments relating to young carers only with the consent of both. The new provisions also make it explicit that it will be possible to join up care plans with other types of care plan only with the consent of the relevant parties, and we welcome this too.

We were very concerned that as originally drafted, Clause 9, which sets out the assets-based approach to assessment, could have been misinterpreted and used to push greater responsibility for meeting needs from the local authority to carers, family and friends. It blurred the distinction between an assessment being about what the needs are and the ways of meeting them by looking at how needs are met by other ways through the provision of services before any decision about eligibility has been made.

Thankfully, the Government’s amendments addressing this problem are now more in accord with the Law Commission review of adult social care legislation, which made a clear distinction between consideration of care and support needs and how the needs should be met. On specialist assessments, we are pleased to see the amendments upholding the current practice and guidance, which provide for assessments to be undertaken by people with expertise. It is an issue on which the House expressed itself very strongly, especially the need for specialist assessors in the case of people with complex health or mental health needs. The noble Lord, Lord Low, and the noble Baroness, Lady Meacher, have set out these issues again today very clearly, and I look forward to the Minister’s response to their questions on the outstanding issues.

Finally, I support the intention of my noble friend Lord Dubs in Amendment 60 to ensure that the care and support plan provides contingency planning for an emergency, such as the carer suddenly being ill or unable to provide care. The self-directed assessment model does include discussion on contingency and risk but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon up emergency help. My noble friend is right to reinforce the point about the need for emergency contingency planning, especially where people have fluctuating health conditions, such as MS, rheumatoid arthritis and HIV.

In Amendment 61, my noble friend also underlines the importance of including a review date in the plan. It would be very valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is and what kind of client feedback or complaints process there would be, as well as client-carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently measure up to these requirements and I would be grateful if the Minister could tell me what requirements the Government will place on local authorities and commissioners in this respect.

[Earl Howe]

My Lords, I am grateful for the support that noble Lords have given to the government amendments. Perhaps I may start by covering the questions that were put to me. The noble Baroness, Lady Pitkeathley, and my noble and learned friend Lord Mackay of Clashfern asked for assurances that the guidance will make clear that local authorities cannot assume that support will be forthcoming from community services or carers as a get-out. I assure the noble Baroness and my noble and learned friend that the intention in Amendment 33 is not to place extra responsibilities on carers and families, nor to delay local authorities in providing statutory services. I will commit to making this absolutely clear in the statutory guidance that will be co-produced with stakeholders. I hope that that is a valuable reassurance.

The noble Lord, Lord Low, asked for reassurance about preventive services remaining universal and free of charge, as well as intermediate care. I can reassure him that certain services will be provided free of charge, and regulations will set out which types of prevention services must be provided free of charge. Regulations will also set out which types of prevention services local authorities can charge for. It will then be for local authorities to decide whether they charge for such services. This will maintain the current position, where charging for preventive services is determined locally, in accordance with local requirements. Additionally, we would expect intermediate care, including reablement and community equipment such as aids and minor adaptations, to remain free of charge. That is a minimum. The regulations will allow for flexibility to keep the list up-to-date as services change over time.

The noble Lord, Lord Low, also asked whether the commitments in Clause 13(2)(b) will apply also to Clause 9. Will an assessment be deemed necessary where preventive services may be of benefit, even if someone is unlikely to be eligible? The duty to assess in Clause 9 is independent of the provisions on prevention. Amendments 33 and 45 make it clear that preventive services should be considered during the assessment rather than having to wait for the eligibility determination. This will mean that people can be advised during the assessment on their preventive needs, whether or not they have eligible needs. I hope that that is helpful.

Perhaps it will be helpful if I move on to the amendments tabled by the noble Baroness, Lady Meacher. Amendment 41 seeks to ensure that an appropriately qualified social worker will carry out complex assessments. I absolutely sympathise with the noble Baroness’s amendment and believe that my Amendments 39 and 40, to which she referred, will go some way towards addressing her concerns. I also reassure her that, through the powers in Clause 12, we will require local authorities to ensure that assessors have the appropriate training to carry out the assessment. We have listened to the concerns of adults who use care and support, and to their carers. They are right to say that assessors should receive appropriate training.

Amendment 39 will enable us to specify circumstances in which a specified person, such as a social worker, must or may carry out an assessment. We believe that an expert must carry out an assessment for a deafblind person. We will consult stakeholders during the development of these regulations to identify any other conditions where a specified person should carry out the assessment.

I am grateful to the noble Lord, Lord Dubs, for raising in his Amendment 60 the issue of fluctuating and emergency needs, and, in his Amendment 61, anticipated review dates in the care and support planning process. Clause 25 sets out the minimum framework for the planning process, and balances the need to set out standards for care and support planning while not constraining the ability of local authorities to fit the planning process around the person. I reassure the noble Lord that providing advice and information on what can be done to meet or reduce a person’s needs will include providing advice and information where an adult may be experiencing fluctuating or emergency needs.

In addition, where it is clear that an adult experiences fluctuating needs, the care plan should reflect this by specifying how the needs will be met. I undertake to the noble Lord to ensure that statutory guidance clarifies this, and that fluctuating and emergency needs are included in what advice is to be provided.

The issue of timescales of reviews is something we have considered carefully. The review is an important part of the process as it can identify where a person’s needs have changed and if their care and support plan should be revised to reflect this. Clause 27 on the review of care plans creates a general duty for the local authority to keep plans under review as well as a specific duty to review the plan when the authority believes the person’s needs or circumstances have changed. In addition, the clause contains a right to request a review. I reassure the noble Lord that nothing in the Bill prevents the local authority and the adult agreeing a time for the next review if they wish to do so. We believe this to be a more pragmatic way of fitting reviews around the lives of people, and one which supports our policy of personalised care. I reassure the House that we intend to detail these issues in statutory guidance on care planning.

I hope that I have reassured the noble Baroness and the noble Lord and that they will feel able not to move their amendments.

Amendment 32 agreed.

Amendment 33

Moved by

[Earl Howe]

33: Clause 9, page 8, line 36, at end insert—
“( ) When carrying out a needs assessment, a local authority must also consider—
(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”

Amendment 33 agreed.

Clause 10: Assessment of a carer's needs for support

Amendments 34 and 35 not moved.

Amendments 36 and 37

Moved by

[Earl Howe]

36: Clause 10, page 9, line 21, leave out paragraph (f)

37: Clause 10, page 9, line 31, at end insert—
“( ) When carrying out a carer’s assessment, a local authority must also consider—
(a) whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the carer wishes to achieve in day-to-day life, and(b) whether the carer would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”

Amendments 36 and 37 agreed.

Amendment 38 not moved.

Clause 12: Assessments under sections 9 and 10: further provision

Amendments 39 and 40

Moved by

[Earl Howe]

39: Clause 12, page 10, line 39, leave out from “which” to “jointly” in line 40 and insert “the assessment may or must be carried out by a person (whether or not an officer of the authority) who has expertise in a specified matter or is of such other description as is specified,”

40: Clause 12, page 10, line 46, after “matter” insert “or is of such other description as is specified”

Amendments 39 and 40 agreed.

Amendment 41 not moved.

Amendments 42 to 44

Moved by

[Earl Howe]

42: Clause 12, page 11, line 23, leave out subsection (5) and insert—
“(5) A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the needs or carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees;(b) where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.(5A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”

43: Clause 12, page 11, line 26, leave out from “in” to “, the” in line 27 and insert “relation to the adult to whom the assessment relates or in relation to a relevant person”

44: Clause 12, page 11, line 37, at end insert—
“( ) A person is a “relevant person”, in relation to a needs or carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the needs or carer’s assessment (as mentioned in subsection (5)).”

Amendments 42 to 44 agreed.

Clause 13: The eligibility criteria

Amendment 45

Moved by

[Earl Howe]

45: Clause 13, page 12, line 1, leave out paragraph (b)

Amendment 45 agreed.

Clause 14: Power of local authority to charge

Amendments 46 to 48 not moved.

Amendment 49

Moved by

[Earl Howe]

49: Clause 14, page 13, line 13, at end insert “; and the regulations may in particular (in reliance on section 112(6)) specify—
(a) different amounts for different descriptions of care and support;(b) different amounts for different descriptions of support.”

[Earl Howe]

In moving Amendment 49, I wish to speak also to the other government amendments in this group, Amendments 50, 51, 52, 53, 54, 59 and 169. We are currently consulting on the detail of our reforms to care and support funding, including charging. This consultation and the accompanying engagement are looking at key issues around future charging for adult care and support. We need to ensure that the Bill has sufficient flexibility to take account of the views expressed through this consultation and the on-going engagement. This work has highlighted areas where the Bill as drafted may not be sufficiently flexible. I turn to my Amendments 49, 51 and 52 concerning local flexibility in charging policies.

Currently, local authorities are free to set their own charging policies for non-residential care. The intention was to create a more consistent framework for charging across local authorities. However, there was uncertainty whether the regulation-making powers as drafted would have allowed local authorities to contribute towards the care and support costs of people who have resources above the financial limits. A rule which prohibits local authorities from making any contribution towards the care costs of such people would restrict the ability of local authorities to use different arrangements when these would best meet local needs. For example, local authorities sometimes subsidise services such as telecare. We wish to allow this to continue and do not want to require local authorities to charge people the full cost of these services.

My other amendments, Amendments 50, 53 and 54, concern circumstances in which a financial assessment has not taken place or a local authority considers that a full assessment is unnecessary. We wish to encourage people to undertake financial assessments because this will enable local authorities to charge them a fair contribution towards their care costs. However, we recognise that some people are likely to refuse to undergo a financial assessment; for example, someone may be unwilling to allow the local authority to access their financial information. In order best to promote these people’s well-being, it may be appropriate for local authorities to arrange care on their behalf. The local authority would be able to charge individuals the full cost of this care and any arrangement fee.

These amendments will therefore allow regulations to enable local authorities to broker care on behalf of people who do not wish to undergo a financial assessment. The regulations will also make provision for light-touch financial assessments where a full financial assessment would not be proportionate, such as for low-cost care packages, in particular for carers. Regulations and guidance will be designed to ensure that such assessments are used appropriately.

The remaining government amendments in this group ensure that all those who should get an independent personal budget receive one and that the regulation-making powers retain their intended flexibility. I hope noble Lords agree that the additional flexibilities provided for by these amendments will equip local authorities with the tools they need better to promote individual well-being and that noble Lords can therefore support my amendments. I beg to move.

16:00

[Lord Lipsey (Lab)]

My Lords, I shall speak briefly to Amendment 55 on top-ups and comment, also briefly, on the proposal for a ministerial advisory committee.

I can be brief about top-ups but not because the issue is not important. Indeed, its substance is vital if the Government’s scheme for a cap is to work. We made good progress on the basis of the Minister’s remarks in Committee, and further progress was made in the Government’s consultation document, published on 17 July. I hope that he will indicate that things are still on the right track towards reaching final solutions in the near future.

I recapitulate the argument from Committee. You cannot at the moment top up your own care home fees. If you go into a care home, a third party—your son, daughter or friend—can top them up but you cannot put in your own money. That is important now, and the statutory bar is often got around or simply ignored. However, it will be a lot more important once the Dilnot scheme incorporated in the Bill takes effect.

Consider an old person who is living in a home in which the fees are £800 a week. Suppose that the limit to what the local authority will pay in fees is £500 a week. What happens when the person has spent up to the cap, at the local authority rate of course? It may be that a third party can give them the extra money to pay up, but suppose they are isolated and on their own. I am afraid that the answer is simple and stark. The individual would have to choose between only two alternatives. One is to accept the £500 a week from the local authority and move into a cheaper, perhaps worse, home, with all the disruption to that person’s life that that would involve. The other would be waive the local authority contribution and continue to pay the £800 themselves. That would mean that the cap had not done them a blind bit of good. The way round this is to permit individual top-ups, so £500 would come from the local authority, £300 from the individual. The noble Earl endorsed this in Committer when he said that,

“people should be able to use their savings to purchase more expensive care if they want to”.

He went on to say that revised arrangements to this effect would,

“be set out in regulations made under Clause 30(2) of the Bill”. —[Official Report, 16/7/13; col. 736.]

This is spelt out in paragraphs 263 to 266 of the consultative document, which also has pointers to some of the potential risks. I hope that this was with a view to solving those risks and not to coming along at a later stage and saying that they are insuperable. I ask the Minister to make a brief progress report to reassure the House that this bar on individual top-ups is going to be rescinded. Without it, the Dilnot scheme simply will not work.

I will now say a word on the ministerial advisory committee amendment in the name of my noble friend Lord Hunt of Kings Heath, who kindly adopted a proposal that I made in Committee. As the House knows, I have previous in this field, having been working on long-term care since I was on the royal commission in 1999. I also have a bit of previous on public policy in general because I started working for Tony Crosland when he was shadow Environment Minister in 1972. Of all the myriad subjects on which I have had to do reasonably serious work in this time, this is by far the most complicated. It involves a mix of financial and administrative problems with the most sensitive human considerations, particularly since it concerns people at a stage of their life when they are going into the second age of vulnerability due to age. Public and private are inextricably mixed in a way that complicates things. The whole cap is part of a private/public co-operation; therefore, it is crucial to align what both parts are doing.

The scale and range of the stakeholders involved is enormous. The Care and Support Alliance had more than 100 individual voluntary organisations which came together to promote a solution in this Bill. There are also a lot of nooks and crannies that are not obvious. I am going to come to one in a speech later this afternoon, a feature of this Bill which only became known to me on Friday which greatly changes the deferred payment scheme under the Bill. There are nooks and crannies that can be simply ignored. We had another one earlier in the Bill. It suddenly turned out that if somebody had an income close to the top for which they could claim means-tested support, they had better not claim it, because otherwise they would lose more than they gained through attendance allowance. So it is a hugely complicated field.

I am not a critic of the department on this, nor of its Ministers. They have wrestled bravely with this, helped of course by the superb Dilnot report—I am standing behind my noble friend Lord Warner, who was involved in that process—which helped hugely to clarify the intellectual framework. But there are complications as yet unfathomed. As the scheme goes forward I promise that there will be lots of unexpected and unintended effects. In particular, how people register they are getting care needs, how they are then assessed, and how it builds up towards a care cap will work out quite strangely. The Government will need the best possible advice on how to do it.

All I am suggesting, as my noble friend Lord Hunt will propose in his amendment, is that it would be well for us to set up right at the beginning a ministerial advisory committee that includes everyone—the voluntary groups, the financial services industry and those who regulate it, and government departments—that can keep on top of these things. As major problems are identified, the committee can report to the Minister on them. As I say, it is not a vote of no confidence in the Department of Health. Indeed, I hope that the department will welcome the proposal because it has shown itself to be willing to talk openly throughout this progress of this Bill. The Minister used a good phrase to describe it when discussing the regulations earlier—co-production. We will need co-production as much after the Bill and the regulations have gone through as before. An advisory committee would provide that.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I welcome the noble Earl’s amendments. As we start another day on Report I should declare my interests as chair of a foundation trust, as a consultant trainer with Cumberlege Connections, and as president of GS1. The noble Earl said that the first group of amendments is designed to give more flexibility to local authorities so that they can make a contribution to a person who might normally be affected by the means test. That is entirely reasonable, but I wonder if he could tell us a little more about the consultation timetable from which this has clearly flowed.

I have also noted the amendments that will allow the local authority to charge the cost of care to those people who refuse to undergo a financial assessment. Again, this seems reasonable, but given the difficult circumstances in which that scenario might arise, does the noble Earl not consider that that lends support to those noble Lords who think that there ought to be appeals systems in place? When we come to appeals, I wonder whether the noble Earl might be a little more sympathetic to those amendments.

I want to lend my support to my noble friend Lord Lipsey in relation to top-ups. He argued persuasively in Committee to allow self-funders to top up if they reach the cap but wish to remain resident within a care setting where the costs are higher than the local authority is paying. That is a strong argument, and I, too, welcome the progress that has been made. However, like my noble friend, I hope that the noble Earl will be able to give us a further report on progress on this matter.

I come now to my Amendment 56, which has been very effectively trailed by my noble friend; in fact, it is difficult for me to do as much justice to the amendment as he has done. It requires the establishment of an independent ministerial advisory committee to keep under review the workings of the cap and the means-testing arrangements set out in Clause 17. It is fair to say that all noble Lords who have debated this Bill have welcomed its general intent and the principles that underpin it. The Dilnot commission marked a significant step forward in creating consensus on how people are to be protected from financial catastrophe if they have to fund their own care. We have debated in detail the Government’s response as set out in this Bill: the establishment and operation of the cap, the level of the cap, the continued financial risk to self-funders, the deferred payment scheme, the capacity of local authorities to accept the responsibilities being placed on them, and in particular, I would identify the responsibility for assessing thousands of self-funders who will come into contact with the local authority for the first time. We have discussed the advice to be made available to vulnerable people in a complex area and its interrelationship with the eligibility criteria.

No one, in welcoming the general thrust of the Bill, will believe that this is the last word. I am sure that the operation of the care packages set out in this Bill will need to be kept under frequent review by the Government and particularly by the noble Earl’s department. Oversight of the system would surely benefit from a bipartisan group of people from whom the Government could continue to take advice. My noble friend Lord Lipsey has gone back many years in relation to the debates in this area. Of course, he served on the 1999 Sutherland royal commission. In parallel we have had the Turner commission on pensions and we have seen the benefit of a bipartisan approach in relation to Dilnot.

We would all agree that the funding of long-term care requires stability as far as possible and, even more importantly, a long-term political consensus. As my noble friend Lord Lipsey said, this is a very complex, complicated set of arrangements. We would be best served by the establishment of an independent group that could advise Ministers on how the system was working and enable politicians from all sides to benefit from serious, impartial advice.

I know that the noble Earl has yet to be persuaded of the benefits of an advisory committee, but it would be an effective way to build on the consensus that I think has been created. I hope that even at this late stage, he might be sympathetic.

16:15

[Lord Warner (Lab)]

My Lords, as the self-appointed keeper to this House of the Dilnot tablets, I support Amendments 55 and 56, spoken to so ably by my two noble friends. Turning to Amendment 55, in framing our recommendations in our report, it was never our intention to impose a new set of rigidities in place of the old set of rigidities. It is important that the new system retains as much flexibility as possible. It is worth thinking about what lies behind much of the argumentation in our report and the new architecture that that report proposes. It is all about people, in as fair, orderly and manageable a way as possible, making contributions from their own resources to the rising costs of adult social care as we cope with, live with and adapt to an ageing population. Given the messiness of the present arrangements for top-ups, it would be perverse not to create the maximum flexibility for people to top up, particularly where these top-ups relate to their ability to stay in a home where they and their family have been very comfortable with the arrangements. Preventing such top-ups would be a truly perverse way of implementing the Dilnot architecture. We need a more flexible way of coping with this. Therefore I support my noble friend Lord Lipsey’s set of amendments.

On Amendment 56, my noble friend has a very strong point. I say this as someone who spent 10 years wrestling with means tests as a senior civil servant coping with social security. In those 10 years, numerous were the times when we had to cope with unforeseen consequences of what we thought were well designed social policy changes, but which turned out not quite to work when subjected to the scrutiny of the real world across a large population. I congratulate the Government on taking our report and turning it into a largely workable—we have a few doubts, but largely workable—set of arrangements that can be brought into operation quickly. However it would be very optimistic to think that there would be no unforeseen consequences—wrinkles, if I may use the word—which needed to be looked at, in particular in the areas of means-testing and the working of the cap. I emphasise that this is not a job application from the Dilnot commission to make, like Frank Sinatra, another return appearance, but we do need some kind of credible, independent body to take a look at this.

I would just gently remind the noble Earl that, at the end of our report, on page 69, we talked about some of these potential wrinkles, including the potential further changes in and around means-testing, which we did not have time to wrestle with but which we just flagged up for the Government. I will go not into the details but just the headlines. Under “Consistent treatment of housing assets”, we noted the way they are treated differently across the social care means test in terms of domiciliary and residential care—they are not treated on the same basis. There is also the issue of whether the means-test taper actually disincentivises savings and the issue of consistency between the way people in residential and nursing care, where it is not continuing care, have to meet general living costs but do not have to meet them where it is continuing care. We know that there are already some potential anomalies in the way that the new architecture will interact with some of those areas. We flagged that up in the report.

My noble friend has argued for some kind of independent advisory committee. He may not altogether thank me for raising some of these potential further changes but they are issues that have to be wrestled with. The new set of arrangements will throw up their own issues, which will also have to be wrestled with. Some kind of independent advisory committee, looking at the way in which the new scheme has worked and has bedded down, particularly in the area of the means test, would be a valuable contribution. I do not think it is a partisan issue. It would be welcomed across the parties and I hope that the Minister can look a bit more favourably on my noble friend’s amendment.

[Baroness Greengross (CB)]

My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.

Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.

[Earl Howe]

My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.

Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.

The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.

Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.

Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.

For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.

[Lord Mackay of Clashfern]

Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?

[Earl Howe]

I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.

Amendment 49 agreed.

Amendment 50

Moved by

[Earl Howe]

50: Clause 14, page 13, line 13, at end insert—
“( ) Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.”

Amendment 50 agreed.

16:30

Clause 17: Assessment of financial resources

Amendments 51 to 54

Moved by

[Earl Howe]

51: Clause 17, page 15, line 14, leave out “provide that where” and insert “make provision as to cases or circumstances in which, if”

52: Clause 17, page 15, line 22, leave out “provide that where” and insert “make provision as to cases or circumstances in which, if”

53: Clause 17, page 15, line 38, leave out “financial resources at or” and insert “, or as not having, financial resources”

54: Clause 17, page 15, line 38, at end insert—
“( ) The regulations may make provision as to cases or circumstances in which a local authority is to be treated as—
(a) having carried out a financial assessment in an adult’s case, and(b) being satisfied on that basis that the adult’s financial resources exceed, or that they do not exceed, the financial limit.”

Amendments 51 to 54 agreed.

Amendments 55 and 56 not moved.

Clause 19: Power to meet needs for care and support

Amendment 57

Moved by

[Earl Howe]

57: Clause 19, page 17, line 5, at end insert—
“( ) A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).”

[Earl Howe]

My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.

On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.

[Lord Warner]

My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.

Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.

Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.

If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.

Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.

I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.

Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.

[Baroness Greengross (CB)]

I support the comments made by the noble Lord, Lord Warner, about this amendment. We know that the things people say they dread as their final days approach are loss of dignity and loss of respect, and we hear far too much about poor care at the end of life. Very often, it is poor care because people are not in the place they would like to be. We also know that the number of carers identified and signposted by the NHS to the enhanced support is not widely known. We know that much more needs to be done to draw together all the various approaches—I am involved in one of those approaches at the moment, looking with a group of experts at how to improve end-of-life care with doctors, professionals in end-of-life care and lawyers who deal with patients’ wishes. There is still a lot be looked at and brought together, and this Bill gives us a good chance of getting this right, or at least much nearer to being right than it is at the moment.

As the noble Lord, Lord Warner, mentioned, the coalition of charities has also suggested that end-of-life care should be free at the point of delivery. I know that this requires much more consideration—the noble Lord talked about that. I want to concentrate on hoping that this will be considered and that services to dying people and possible loss of dignity and respect will get a far higher profile as things that need urgent attention. Terminally ill people should have their preferred place of death recorded by local health and social care services. That preference needs to be implemented wherever it is practical. People must have their care and support needs and those of their carers treated as urgent by the local authority responsible for assessing those needs.

For people who are dying, every day is precious. They cannot wait while the bureaucratic wheels grind slowly along, and not always in their favour. I support the amendment tabled by the noble Lord, Lord Warner.

[Lord Patel (CB)]

My Lords, I spoke about this issue when we debated the gracious Speech, at Second Reading and in Committee, when I supported the amendment put forward by the noble Lord, Lord Warner, and today I support Amendment 137. Every time we have debated this, the Minister has been sympathetic to the idea of providing free social care to those who are dying. When I think about this amendment, I think of a patient who has just been told of a diagnosis of terminal cancer, that their life will now last a few months at the most, and that medicine cannot offer much more than perhaps palliative care or treatment of some kind. Once the patient and the family have recovered from the shock, their immediate thoughts are, “Can I cope with my life—which will now be very short—at home, and what support can I get?”.

Currently, the means test for free social care can represent a barrier for those who wish to die at home. It makes it unaffordable for some, but it also means that the person may be passed between the local authority and the NHS while the two systems decide who is eligible for care and whether it should be free or means-tested. Government Amendment 57 is a demonstration of the Minister’s clear intention. He wishes to see this happen, and I thank him for moving this amendment, but it does not go far enough to achieve what I think he, too, wishes to achieve.

The second subsection in the new clause proposed by Amendment 137 is addressed, at least in part, by government Amendment 57. However, Amendment 57 does not introduce any new duties for local authorities. It highlights the existing ability of local authorities to regard the care and support needs of people at the end of life as urgent. In contrast, Amendment 137 allows the Government to introduce secondary legislation to require local authorities to regard the assessment of needs at the end of life as urgent. If the intention of the government amendment is to do that, is it clear enough? The final part of Amendment 137 relates to free social care at the end of life. Research suggests that the introduction of free social care at the end of life has broad-based support. I believe this will help to prevent expensive, unnecessary hospital admissions, prevent burdensome financial assessment during a difficult time and is an important part of giving people genuine choice at the end of life.

16:45

From the debates we have had I believe the Government, and particularly the noble Earl, are sympathetic to the idea of providing free social care for the terminally ill. The Government stated in the care and support White Paper that they see,

“much merit in providing free … social care … at the end of life”.

Indeed, they committed £1.8 million to collect the data necessary to assess the policy’s benefit through the palliative care funding review pilots. I recognise the importance of the PCFR pilots in providing data on how a system for funding end-of-life care can be implemented. When they launched the pilots the Government committed to introducing the new funding system in 2015, following the conclusion of the pilots in 2014.

I seek a firm commitment from the Government that they will make a decision by the end of this Parliament on free social care at the end of life. Indeed, the Joint Committee on the draft Care and Support Bill called for free social care at the end of life to be introduced, “at the earliest opportunity”, and the Government had confirmed that the Care Bill provides a statutory framework to implement free social care at the end of life in the future.

There needs to be a firm commitment from the Government and a timetable for making a final decision and implementing the policy. Do the Government still support the principle of free social care at the end of life and giving patients the choice of dying at home? Are they confident that the pilots will be able to collect enough data to implement free social care at the end of life? What assessment have the Government made of the number of people who will be unable to die at home if this choice is not implemented by 2016? Finally, what assessment have they made of the savings for hospitals of enabling patients at the end of life to be cared for and die at home? I look forward to the noble Earl’s response.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare all my interests in this field, which are listed. These amendments are incredibly important for patients who are dying. The Government’s amendment is to be welcomed; I can see no problems with it. It might sound bizarre but I have some slight anxieties over the wording in two places in Amendment 137. It refers to a preferred place of death, whereas I would rather see the words, “preferred place of care”. Many people who are dying know that they want to spend their last days, weeks or months at home. They want to have everything done to support them at home, particularly out of hours. We have debated this for some time within my own specialist teams and specialist services. We are worried that there could be two unintended consequences. People who are not yet ready to confront the fact that they really are dying will be pushed to have that conversation before they are ready, which would be traumatic. There could also be the unintended consequence of some kind of target developing and patients being whipped out of one place of care.

The difficulty we see clinically is that when clinical situations change, patients sometimes change their mind. It is not uncommon for someone who originally said they wanted to die at home to say, when they really are dying, that they feel safer where they are and want their family brought in and as much of a home environment created as possible. It may be the regulations at ward level, or the way in which they are interpreted, which are blocking that and need to be addressed. For example, it does not matter at all if you have a husband on an all-female ward, but I have occasionally known staff to think that it does and that it is not appropriate to have a man stay overnight, which is absolutely appalling. Staff need to recreate the home environment where that person is as much as possible. However, if they have complex needs or unstable symptoms, they may well feel safer in whichever place they are, whether it is hospice or hospital.

In looking at the amendment I also tried to get some details of how many patients are successful under the DS1500 special rules. It is quite difficult, because I understand that the Department for Work and Pensions does not routinely collect that data. However, it seems as if in the year 2011-12, 11% of all successful claims were for the category of patients who were deemed to be terminally ill. One of the difficulties when you are looking at local authority charges for adult social care is that we cannot predict prognosis. That is always the catch with defining terminal illness. We are making our best guess, as it says in the Welfare Reform Act, as to whether someone can “reasonably be expected” to die within six months, but it is no better than that. It is a guess. There are patients who outlive their prognosis. I understand that the DWP does not push for reassessment inside three years, so there is quite a lengthy period of leeway. The potential difficulty that I can see unless this is really thought through and costed is that if somebody turns out not to be dying, what will then happen? Would they be forced to go through a reassessment? Would that then be used to try to claim back money from them afterwards? I raise those questions which would have to be thought through very carefully.

I certainly find it difficult—in fact, offensive—when people have to be assessed for care when they are quite clearly dying. However, there is that group of people you really do not know about. They appear as if they are dying. They tend to be more in the non-cancer rather than the cancer population, where their prognosis prediction becomes really difficult.

Those are just some caveats, although I support the spirit of the amendment wholeheartedly in terms of having patients where they want to be. However, as I said before, we need to focus on their place of care during their last days, weeks and months, and not only on their place of death.

[Lord Mackay of Clashfern]

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

[Baroness Wheeler]

My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

17:00

[Earl Howe]

My Lords, I am grateful to noble Lords for expressing their views on this important subject so eloquently. As I said in Committee, I support the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. In looking at the amendment, the first essential question is whether we need to take legal powers in this Bill to fulfil those objectives.

I want to assure noble Lords that we already have the necessary legal powers to implement both choice in end-of-life care and a new palliative care funding system. In relation to choice, there is already a power in Section 6E of the National Health Service Act 2006 to make regulations, or standing rules, to require NHS England and clinical commissioning groups to make arrangements for patient choice in respect of specified treatments or services. We would use these powers to implement a choice offer in end-of-life care.

As noble Lords know, making the changes to the system required to offer real choice, which includes enhancements in community palliative care services, will not be straightforward. Not least of the issues is the cost of making these changes. I agree with noble Lords that there is the potential for savings to be made in moving these services out of hospitals and into the community. However, one of the most comprehensive studies in this area, the Cochrane review, found that while there were small but significant improvements from community-based palliative care, the evidence for its cost-effectiveness was inconclusive.

We must also guard against the danger of making changes too quickly, and I am thinking of a particular danger. It would be in no one’s interests if the upfront investment required to enhance community services came at the expense of existing services. That is why the Department of Health and NHS England will be working together, and with organisations from across the end-of-life and palliative care sector, on a review of the timescale for introducing this choice offer at a time that will be right for patients and for those in the NHS working in this vital area. We have to ensure that when a choice offer is introduced, it will be a real choice backed by a system that is able to deliver it.

On palliative care funding, as I stated earlier, the Government’s position remains that there is much merit in providing free health and social care in a fully integrated service at the end of life. One of the key conclusions of the Palliative Care Funding Review was:

“There is a stunning lack of good data surrounding costs for palliative care in England”.

We responded to that by establishing eight palliative care funding pilots, involving more than 80 organisations. The noble Lord, Lord Patel, asked me whether those pilots were essentially big enough to produce meaningful results. The palliative care pilots cover 80 organisations in those eight areas and we are confident that they will give us sufficient evidence to design a new palliative care funding system. We need to be absolutely sure that the evidence being gathered by the pilots, which are running for two years, until 2014, is thoroughly analysed and a complete picture is available to both the department and NHS England before the details of the new funding system are finalised. To answer the noble Lord, Lord Patel, yes, we are acutely aware of the benefits of introducing a new system in this important area.

The noble Baroness, Lady Wheeler, asked about the pilots. The Public Health England review that is taking place welcomed the work that is going on. NHS England is also looking at this, in conjunction with its review of the end-of-life strategy. As regards the timetable for that, NHS England is working to publish early in the new year. Supported by the data from the pilots, we aim to have a new funding system in place by 2015, a year sooner than the review proposed. Similar to any new policies on choice in end-of-life care, this can also be introduced through secondary legislation. In this case, Clause 14(6) of the Bill provides powers to make regulations that prohibit local authorities from making charges in specific cases.

I hope I have convinced noble Lords that I am very much behind their laudable aims in tabling this amendment and I completely understand their desire for us to do the right thing. I am grateful for the opportunity to set out on the Floor of the House the Government’s commitment to delivering solutions in relation to end-of-life care. But I hope I have also persuaded noble Lords that decisions on end-of-life care funding and on choice of place of death cannot be taken lightly or inadvisedly, and that we must first take account of the evidence and implications.

I am doubtful that I will be able to say anything further on these subjects at Third Reading beyond what I have said today, but I would of course be more than happy to meet with the noble Lords, Lord Warner and Lord Patel, and other noble Lords, after Report to explore the practicalities around all these issues, and indeed some of the very pertinent issues raised by the noble Baroness, Lady Finlay. I hope that for now noble Lords are assured that our plans for quality and choice in end-of-life care will deliver improvements, and that they feel sufficiently assured to withdraw their amendment.

Amendment 57 agreed.

[Lord Warner]

I thought I had a right to respond to the noble Earl on Amendment 137.

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

It was the noble Earl’s amendment. Can we go back to it? We cannot.

Clause 20: Duty and power to meet a carer’s needs for support

Amendment 58 not moved.

Clause 24: The steps for the local authority to take

Amendment 59

Moved by

[Earl Howe]

59: Clause 24, page 21, line 1, leave out subsection (3) and insert—
“(3) Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—
(a) the needs meet the eligibility criteria, (b) at least some of the needs are not being met by a carer, and(c) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.”

Amendment 59 agreed.

Clause 25: Care and support plan, support plan

Amendments 60 and 61 not moved.

Amendment 62

Moved by

[Earl Howe]

62: Clause 25, page 22, line 20, leave out subsection (11) and insert—
“(11) A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—
(a) where the combination would include a plan prepared for another adult, that other adult agrees;(b) where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.(11A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the plans being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the child’s best interests.”

Amendment 62 agreed.

Clause 35: Deferred payment agreements and loans: further provision

Amendment 62A

Moved by

[Lord Lipsey]

62A: Clause 35, page 29, line 27, at end insert—
“( ) Regulations under this section must provide that—
(a) a local authority shall direct anyone considering a deferred payment arrangement to an appropriately qualified financial adviser or to appropriately qualified financial advisers; and(b) any loan under this scheme shall be sufficient to pay for advice under paragraph (a) above.

[Lord Lipsey]

My Lords, am I speaking at the right time on the right subject?

[A noble Lord]

Yes.

[Lord Lipsey]

That is a great relief to me. I will come to the narrow-ish point in the amendments shortly but I want to put them in context.

One of the reasons why advice is absolutely crucial in the deferred payments scheme is that this is one of the least understood and least explored facets of the Bill. I will come on to one or two aspects of that. In a way, it makes it hard to make the case for the importance of advice, because so many things on which advice will be needed have not yet seen the light of day. In Committee I referred to some of the unresolved issues that have been raised by Partnership, the Equity Release Council and others. They will emerge, and this will make it clearer why advice is needed.

I will first put the issue in the following context, to show how unexplored it is. If the noble Earl, Lord Howe, will forgive me, I will correct something that he said in Committee. He said that 40,000 people each year have to sell their house to pay for care. I think that the noble Earl mis-spoke and that he meant to say, “up to 40,000”. That is the explanation that has come to me of what he said. I make no complaint; it is hard when one’s words are examined in such terrible detail.

I have spent a surprising—perhaps wasted—amount of my time trying to trace the figure that 40,000 people each year are forced to sell their home to pay for care. I have been doing it ever since I sat on the royal commission 15 years ago. When we were sitting on the royal commission, we eventually found a very dodgy piece of research, now more than 20 years old, which kind of concluded that the number might be about 40,000. Of course, what happened was not that the piece of research was examined and found to be accurate but that the figure got into the Daily Mail cuttings library, so that every time that paper campaigned against people having to sell their house to pay for care—I praise it for this—the figure was repeated, until it became accepted throughout the world as the number involved.

Having spent all these years studying the subject, I am very tempted to go into greater detail, but I do not think that the House would thank me for it. However, I refer any noble Lord who might be interested to the Full Fact website. It is a fact-checking organisation, of which I am a director, which goes into the matter in minute but very clear detail, and points out that the Government’s claim is based on exploratory research that is almost 20 years out of date.

More importantly, the 40,000 figure is used as if it were the number of people who are forced to sell their house. “Forced” is a funny word in this context. For most people who go into a home, selling their house is the sensible thing to do to fund the cost of care. You do not want to leave the house empty; that benefits nobody. It does not provide housing for anybody; the house starts to crumble and is worth less to you and your family, so you had best sell it and get something that is more suitable. However, the deferred payment scheme is so important because there are people for whom that is not true. For example, some people want their families to live in their house and therefore cannot get cash for it. That is why we have a deferred payment scheme. “Forced” suggests that this is something dreadful in all cases, when in fact it is dreadful in some cases. It is absolutely right, as I said before, that we have such a scheme for some cases but not for all cases.

I now come to another severe complication, and I am afraid that I will have to resort to the vernacular in order to make clear to the House what has happened. The original scheme put forward by Dilnot has had its balls cut off by the Government in the consultation document. That is not too strong a way of putting it, and I will explain why. Yes, every council will offer a scheme, but there is now a huge restriction that will mean that very few people will take advantage of the deferred payment scheme. It would not in any case have been 40,000, but now I think that it will be nearly nil. Why is that? The consultation paper makes it clear, in paragraph 150 on page 44, that you are eligible for a deferred payment loan only if your other assets in total come to less than £23,250. If you have more than that, you have to spend down until you have £23,250 left in the bank or wherever it is, and then you can consider a deferred payment scheme. However, most people who have reasonably valuable houses, who are the people most likely to want to adopt this measure, will have far more than £23,250 worth of other assets. Most of them will not feel the least bit happy if they have to spend down until they have only £23,250 left in the bank before they can get any help from the deferred payment scheme. That hardly pays for a daily delivery of the Racing Post for the rest of their lives, their nightly gin and tonic or more important things such as the literature they want to read or all the things that make their life fuller. For those people, a deferred payment scheme is simply not available.

17:15

You have to think about the timing of this measure. In theory, people could let their money run down to the £23,250 sum and then apply for a deferred payment scheme, but what is going to happen to the house in the mean time? They must either let it or leave it empty. Something has to happen with it. Usually, people make decisions about funding when they go into a care home. That is the moment when a deferred payment scheme has to come into effect if it is to be effective. However, the answer given to most people with funds of £23,250 will be, “You might want to do this but you can’t because the Government say that you can’t”.

I am a veteran of the long struggles that have taken place on this issue, with the politicians saying that we need a deferred payment scheme because it is wrong that people should be forced to sell their houses and officials saying that it will be expensive and a nuisance, and blocking it. I do not know whether that is what happened in this case but, as I say, this is now a castrated deferred payment system with a brutal limitation imposed by the consultation document, which was nowhere heralded or mentioned when the scheme was drawn up. That is very sad. Indeed, it is more than very sad; it will cause fury because people have read in their newspapers that a deferred payment scheme means they will not have to sell their house. However, they will then find that they will have to do so because of this arbitrary change by the Government. The result will be fury.

I support the Bill strongly but one of my concerns about it is that I fear that in various ways it falls short of the billing it has been given. That is certainly true of the cap, which will be reached only at the rate of local authority payments. The issue we are discussing is another case in point. People will believe that the Government have dealt with this problem but they have not. That was an error and I hope that the Government will think again about this.

One thing that might help a little when people reach the stage when they need to think about deferred payments and that sort of thing is if they are directed to proper advice so that someone who is on their side—their financial adviser—can explain to them why they are not eligible, if an explanation can be given, or perhaps suggest alternatives to the deferred payment scheme. For example, if you take out a deferred payment scheme, an alternative would be to let your house and use the money you receive in rent to pay for your care. A financial adviser will point to that. That alternative has various advantages and disadvantages: for example, you avoid paying interest on the money but you have to pay tax on the income. I will not go into all the complications but it is crucial that people get the right advice.

To return to my previous point, I tried out this discovery of the £23,250 limit, which I made courtesy of an adviser only last week, on three Members of this House who are most knowledgeable about the subject of care, and not one of them knew about it, which must mean that it is pretty obscure.

To try to dispose of a red herring that gets thrown in the way of this subject, I am not saying in the amendment that people should be forced to take financial advice. You cannot force people to do so. If it is forced advice, they will not take it seriously and it will not work. However, the council can point people in the direction of financial advice—not to an individual financial adviser, because councils do not know which of them offers good advice, but to somebody who is appropriately qualified to give people the advice they need. The consultation paper pays lip service to this in paragraphs 171 to 174. However, we need more than lips; we need teeth if people are to get the advice they need to navigate around this very complicated aspect of the Bill.

[Lord Hunt of Kings Heath]

My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,

“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.

I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.

I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:

“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”—

in other words, local authorities—

“without much guidance or assistance with compatibility of IT and issues of that kind”.—[Official Report, 22/7/13; col. 1065.]

In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.

I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.

[Lord Warner]

My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

[Lord Mackay of Clashfern]

I do not understand why it is necessary to have any kind of limit in relation to this matter so long as there is sufficient security to allow the deferred payment to be feasible from the point of view of the Government. The proposition that the deferred payment scheme should be limited by the amount of assets a person has strikes me as rather unnecessary. So far as a model scheme is concerned, I would have thought that there is a lot to be said for having a form of document which is universal. There would of course be the possibility of different particular provisions relating to particular cases, but the central core of a deferred payment agreement could be put in a form of universal application.

17:29

[Baroness Barker]

My Lords, I rise only to ask a question. I agree with the noble Lords, Lord Warner and Lord Lipsey, that a deferred payment scheme was an important selling point for the Dilnot report. Even though very few local authorities are running such schemes at the moment, it is an important and live issue in the minds of older people and their families; it is one that they dwell on quite a lot. I want to ask the keeper of the Dilnot tablets—who is not a character from Harry Potter—whether the commission gave any consideration to setting a figure as outlined by the noble Lord, Lord Lipsey. Did it have a level of assets in mind that people should be able to exclude?

When the noble Lord, Lord Hunt, talks about a scheme, is it a model that would apply to individuals or is it really a model that would apply to local authorities and their ability to carry the costs of the Dilnot scheme in their area for a defined period of time? I can see what the noble Lord, Lord Hunt, is saying in terms of having a model, but I am slightly confused about it. Perhaps when the Minister comes to reply, in telling us about the Government’s thinking on all of this, he might address what to me appears to be the key underlying factor.

[Lord Warner]

My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:

“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.

We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.

[Earl Howe]

My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.

The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—

[Lord Warner]

Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.

[Earl Howe]

I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.

I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.

Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.

I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.

The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.

My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.

[Lord Lipsey]

My Lords, I thank the Minister for that reply. On the first two of the three legs of his argument, I am happy to support what he said. Through helpful discussions over the summer, I understood that he had meant to say “up to 40,000.” I make no criticism of him for misleading the House. Any misleading he did is on a tiny scale compared with the misleading that has taken place with the whole country through these repeated cuttings file references. History will now have on record in this debate the truth about these numbers. That is a form of progress, if not legislative progress.

Secondly, I should like to thank the noble Earl for what he said about advice. We are near to having another meeting before Third Reading on advice. We are all after the same things on advice with the same constraints. We have not quite cracked it yet, but I hope when the House comes back on Third Reading to the matter of advice, we shall do so, either in the form of an amendment, or of a shared understanding on where we are going which might take the form of regulation or guidance. On those two things, I agree with the Minister.

However the Minister did not confront my most important point. Let us be absolutely clear. This Bill does not provide a universal deferred payments scheme. It provides a deferred payments scheme only for people who have less than £23,250 in assets. There is no universal deferred payments scheme. Further, this has been done in a back-door manner which disgraces the Government. It was not in Dilnot. We have heard decisive testimony on that from my noble friend Lord Warner. It was not in the Government’s announcement of their response to Dilnot. It was not in the Second Reading speeches. It came out between stages of the Bill in this consultation document. The noble Earl suggested that there would be people with more than £23,250 who could benefit from deferred payments so we did not have to worry. The relevant bit from paragraph 154 of the consultation document says:

“More generally, we also intend that authorities should have the discretion to provide deferred payments to people in residential care who do not necessarily meet all of the mandated criteria.”

Those criteria include the £23,250, so that sounds quite good. The next sentence says:

“For example, if someone has slightly more savings”—

I stress the phrase “slightly more savings”—

“than the £23,250 threshold but would qualify for a deferred payment soon, an authority might prefer to offer the option upfront.”

That is a tiny loophole. This is essentially a £23,250 threshold that the Government have smuggled in, telling nobody until they had to produce this document and hoping no doubt that by 25 October, nobody would have noticed. I shall tell you who will notice. The Daily Mail will notice. The Daily Mail and other newspapers which campaigned so that people would not have their houses seized—I applaud them and have applauded them before for doing so—are now going to learn that the Government have welched on the deal. The tsunami that will hit the Government in consequence will hurt not only this proposal but the Government as a whole.

17:45

I urge the Minister to indicate at the earliest possible opportunity that the Government will give this matter fundamental reconsideration. If he does not so indicate, I am afraid that the consequences for him and for the integrity of the whole Dilnot scheme will be considerable. The Government have got to look at it again. The House may wish to reconsider this matter—which, after all, has only come up this afternoon—at Third Reading, with appropriate amendments designed to undo what the Government are attempting to do. I shall not push the amendment for the reasons I have given and beg leave to withdraw the amendment.

Amendment 62A withdrawn.

Amendment 63

Moved by

[Lord Hunt of Kings Heath]

63: Clause 35, page 30, line 12, at end insert—
“( ) The Secretary of State shall make available to all local authorities a model deferred payment scheme and all local authorities must follow this model unless they can show due cause not to.”

[Lord Hunt of Kings Heath]

My Lords, I share my noble friend’s concern about what we have heard tonight. From what the noble Earl said, in essence the mandated scheme will be a scheme in which the person’s assets will have to come down below £23,250 before a deferred payment arrangement must begin. The noble Earl went on to say that he wanted to encourage local authorities to use a power more widely. That local authority power is discretionary. The great fear must be that the mandatory scheme will in essence turn out to be the scheme that all local authorities will adopt. That is why I link that concern to Amendment 63 for a model scheme. In the circumstances it is absolutely essential. A mandated model scheme does not guarantee a universal scheme, but at least sets the framework for one. The House should consider it very carefully. I beg to move.

17:48

Division 1

Ayes: 202

---

Labour: 155
Crossbench: 31
Independent: 6
Democratic Unionist Party: 1
Bishops: 1
Plaid Cymru: 1

Noes: 224

---

Conservative: 137
Liberal Democrat: 62
Crossbench: 18
Ulster Unionist Party: 1
Bishops: 1
Independent: 1

18:02

Clause 37: Notification, assessment, etc.

Amendment 63ZA

Moved by

[Baroness Campbell of Surbiton (CB)]

63ZA: Clause 37, page 31, line 39, at end insert “with a view to securing, so far as reasonably practicable, the outcomes referred to in section 9(4)(b) or 10(5)(d)”

[Baroness Campbell of Surbiton (CB)]

My Lords, I shall speak also to government Amendment 63A and my Amendment 63B. Before I begin, please forgive me for my speech going in stops and starts. This is the result of being an astronaut: we speak like this.

Noble Lords will know from my Private Member’s Bill, the Social Care Portability Bill, as well as my contributions to debates on this Bill, the depth of my concern about continuity of care when an older or disabled person moves to another local authority. It is a basic human right to move freely within one’s country, whether to pursue education or employment opportunities, to improve one’s family life or to seek personal support. The Government have said on several occasions that my Private Member’s Bill has informed the provisions of this Bill. It is true and I am grateful to have helped; I must say that I am also a bit flattered. We have collaborated well and I firmly believe that workable continuity of care is in sight.

The Minister for Social Care said to me in a letter last week:

“I believe that we are both of one mind and that neither of us wants a situation where there are no services in place on the day of the move, which could result in the person falling into crisis”.

I believe that too. Throughout the passage of this Bill, my two main areas of concern have been the need for a reference to outcomes in the continuity provisions and the risk of a gap in provision of care and support. We have made good progress on the second of these concerns since Committee. I am heartened by this.

Amendment 63ZA is about equivalence of outcomes. This goes to the heart of what continuity of care is about. The underlying purpose is to enable the person who moves to do the same kinds of things in their day-to-day life as they currently do. It may not always be possible and it may be through different means, but that is the aim. Certainly there are references linking plans to outcomes elsewhere in the Bill, and that is very welcome. However, signalling the intention in Clause 37 would send a clear and powerful message which could not be misconstrued by those providers who have an “I-know-what’s best-for-the-client” attitude. That is why I have tabled this amendment.

My second amendment addresses safe and seamless transition from one authority to another. The Bill says that if the second authority fails to deliver a new care package by the day of the move, it has to meet the needs that the first authority has been meeting until it has put the new arrangements in place. This is a temporary measure to ensure there is no gap in the provision of care.

I have been concerned that, just as the new care package may not be ready in time, as Clause 38(1) acknowledges, there may also be a delay in the temporary measures, which would mean a risky gap in care and support. My amendment proposes that, in those circumstances, the first authority would have to continue to provide care until the new arrangements were in place. I remain of the view that this would provide the strongest guarantee of continuity.

The Government, however, have proposed instead a new amendment, Amendment 63A, to improve co-ordination between the person moving and the two local authorities—in effect acknowledging the importance of a dialogue between all three parties. Certainly, both local authorities working together to prepare for the person’s move is a good template for success. The amendment will require the first authority to contact the second authority and maintain this relationship until the person moves. It will also require the first authority to keep the person involved so that they are fully aware of the arrangements in advance of their move. While this is not the solution I favour, I recognise that it will help to strengthen the process by bolstering the degree of collaboration and coordination between the authorities. That would go a long way towards reducing the risk of an interruption in care and support. It would also reassure and empower the person moving.

Throughout my campaigning life, “Nothing about us without us” has driven everything. This duty is a commendable endorsement of that approach. I believe that it would be enhanced by a further small change: that the first authority remain in contact with the second authority until the new care package is in place. This would ensure a smooth transition during any temporary arrangements, when the individual would be at their most vulnerable. Moreover, it would help the second authority, which has to meet the needs that the first authority has been meeting. I believe this fine-tuning of the Government’s helpful amendment would speed up the transition and support the way that Clause 38 is intended to operate.

After some negotiation last week, I believe I reached an understanding with the Minister and his officials that there will be a review of the continuity-of-care provisions after three years. These are new responsibilities for local authorities, and it is right that we should know whether they are working and take action if they are not. I look forward to the Minister’s confirmation of this in his response.

Moving house is one of the most stressful days of your life. Let us give disabled people the confidence to move and, hopefully, improve their circumstances. To do that, they require three things: first, knowing that support is there; secondly, the knowledge about the process to reassure them during a time of potential anxiety; and, thirdly, the certainty that they can live their lives in the same way with the same outcomes in their new environment.

I am pleased that the Government have travelled a fair way in tabling their amendment and have made significant progress in strengthening the transition process. I very much look forward to being involved in the next stage of the portability journey. I believe that we are about to have the portability celebrations but the cake has not yet been finished. If we get this right, I will feel free to chase my dream of moving to the Cornish coast when I eventually retire, which will not be yet. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.

[Baroness Wheeler (Lab)]

My Lords, these are mostly technical amendments, which we support. We are especially pleased that the concerns and proposed improvements to the portability process put forward by the noble Baroness, Lady Campbell, are addressed in the amendments in this group. We need to do as much as possible to reduce the likelihood of the person not having services on the day of the move to the new authority.

Continuity of care is critical to portability, and the requirement placed on the first authority to keep in touch with the second in the period leading up to the move to ensure that services are in place and ready, and that the person is kept informed and up to date, is very important for a safe and risk-free move. They are also required actively to ensure continuity of care until the new assessment is in place. That is absolutely right, as is the second authority being required to have regard to the outcomes that the person wishes to achieve in the care and support plan that they had before the transfer.

I congratulate the noble Baroness on having finally achieved most of what she set out to in her own Private Member’s Bill. As she said earlier, workable continuity of care is within sight. Her tenacity and determination will mean that many people will now be able to make the move to different parts of the country, to be closer to their families or to care and support that they have not previously been able even to contemplate.

We support the government amendments dealing with cross-border issues with Wales. They follow extensive discussion and agreement with the Welsh Government. The Minister’s detailed correspondence to noble Lords explaining the purpose of the amendments in relation to such key issues as arbitration on cross-border disputes, responsibility for mental health aftercare and sorting out direct payments for this care and residential care to reflect recent change of practice in England was very helpful to the House in getting the full picture of the proposed changes.

In respect of the amendments on ordinary residence, NHS accommodation placements, cross-border hospital stays and the need to ensure that the Care Bill provides for accommodation provided under the Welsh, Scottish and Northern Ireland legislation, the Minister’s note of last week emphasises that all changes have been agreed with each of the devolved Administrations, and obviously that is as it should be. Are the provisions for four-way reciprocity on cross-border placement in England, Wales, Scotland and Northern Ireland now fully in place with these amendments to the Bill, or does more work need to be undertaken as the detail is worked through further?

Specifically on government Amendment 64, I understand that the LGA and ADASS are looking to model the impact of a person’s place of residence on the cost pressures within the social care system. To assist this work, which will be very valuable to the whole House, will the Government now publish the information that they have on the impact of cost pressures on extending the territorial reach of the Bill into Wales?

18:16

[Earl Howe]

My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.

The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.

Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.

My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.

For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.

The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.

We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.

The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.

The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.

First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.

Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.

The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.

The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.

This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.

[Baroness Campbell of Surbiton]

My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.

Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.

Amendment 63ZA withdrawn.

Amendment 63A

Moved by

[Earl Howe]

63A: Clause 37, page 31, line 44, at end insert—
“(8A) Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—
(a) any needs for care and support under section 18 or 19 in the adult’s case, and(b) where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.(8B) The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (8A) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.”

Amendment 63A agreed.

Clause 38: Case where assessments not complete on day of move

Amendment 63B not moved.

Clause 39: Where a person’s ordinary residence is

Amendments 64 to 67

Moved by

[Earl Howe]

64: Clause 39, page 34, line 1, after “authority” insert “in England or the local authority in Wales”

65: Clause 39, page 34, line 2, at end insert “; and for that purpose—
(a) “local authority in England” means a local authority for the purposes of this Part, and(b) “local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2013”

66: Clause 39, page 34, line 3, leave out “accommodation under the National Health Service Act 2006” and insert “NHS accommodation”

67: Clause 39, page 34, line 10, at end insert—
“(5A) “NHS accommodation” means accommodation under—
(a) the National Health Service Act 2006,(b) the National Health Service (Wales) Act 2006,(c) the National Health Service (Scotland) Act 1978, or(d) Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.”

Amendments 64 to 67 agreed.

Schedule 1: Cross-border placements

Amendments 68 to 75

Moved by

[Earl Howe]

68: Schedule 1, page 101, line 42, leave out “in a case within any of paragraphs 1 to 4”

69: Schedule 1, page 102, line 17, leave out “within” and insert “where there is a dispute about the application of”

70: Schedule 1, page 102, line 19, at end insert—
“( ) After subsection (10) of that section insert—
“(10A) A person who, as a result of Schedule 1 to the Care Act 2013 (cross-border placements), is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be) is to be treated as ordinarily resident in that area for the purposes of this section.
(10B) A person who, as a result of that Schedule, is not treated as ordinarily resident anywhere in England or Wales (as the case may be) is not to be treated as ordinarily resident there for the purposes of this section.”

71: Schedule 1, page 102, line 24, at end insert—
“Provision of NHS accommodation not to affect deemed ordinary residence etc.7A (1) In a case where, as a result of this Schedule, an adult is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be), the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.
(2) In a case where, as a result of this Schedule, an adult is not treated as ordinarily resident anywhere in England or Wales (as the case may be), the adult continues not to be so treated even if the adult is provided with NHS accommodation.
(3) In a case where, as a result of this Schedule, no duty under a relevant enactment applies, the duty does not apply merely because the adult in question is provided with NHS accommodation; and for this purpose “relevant enactment” means—
(a) Part 2 of the Social Work (Scotland) Act 1968,(b) sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003,(c) the Health and Personal Social Services (Northern Ireland) Order 1972, or(d) the Health and Social Care (Reform) Act (Northern Ireland) 2009.(4) In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated as remaining within, or as remaining outside but ordinarily resident in, an area in Wales, the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.”

72: Schedule 1, page 102, line 24, at end insert—
“Direct payments7B (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where accommodation in England, Wales, Scotland or Northern Ireland is provided for an adult by means of direct payments made by an authority in another of the territories.
(2) The reference in sub-paragraph (1) to direct payments accordingly includes a reference to direct payments made—
(a) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,(b) as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or(c) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.”

73: Schedule 1, page 102, line 24, at end insert—
“Particular types of accommodation 7C (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where—
(a) an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations,(b) the adult is living in accommodation in England, Wales, Scotland or Northern Ireland that is of a type so specified, and(c) the adult’s needs for care and support are being met by an authority in another of the territories providing or arranging for the provision of services other than the accommodation.(2) In section 5 of the Community Care and Health (Scotland) Act 2002 (the title to which becomes “Local authority arrangements for residential accommodation etc. outwith Scotland”), in subsection (1), at the end insert “or for the provision in England and Wales or in Northern Ireland of a service or facility of such other description as may be specified in the regulations”.

74: Schedule 1, page 103, line 14, at end insert—
“( ) “NHS accommodation” has the meaning given in section 39(5A).”

75: Schedule 1, page 103, line 40, at end insert—
“( ) In paragraph 7B, the reference to sections 34 and 36 of the Social Services and Well-being (Wales) Act 2013 is to be read as a reference to section 57 of the Health and Social Care Act 2001.”

Amendments 68 to 75 agreed.

Amendment 76

Moved by

[Baroness Greengross]

76: After Clause 40, insert the following new Clause—
“Appealing decisions taken by the local authority
(1) The local authority must have in place a procedure, which includes a review element that is independent of the local authority, by which adults or carers can appeal a decision made by the local authority about—
(a) whether an adult or carer’s needs meet eligibility criteria under section 13,(b) whether to charge for meeting needs under section 14,(c) the result of a financial assessment under section 17,(d) the content of a care and support plan or support plan under section 25,(e) the amount of a personal budget made under section 26 or independent personal budget made under section 28,(f) the payment of an “additional cost” under section 30.(2) Regulations may make further provision about any aspect of the appeals procedure mentioned in subsection (1).
(3) Wherever a decision has been made of a type referred to in subsection (1), the local authority must make the adult or carer aware of their right to appeal the decision and how to request details of the appeals procedure. Details of the procedure must be made available on request.”

[Baroness Greengross]

My Lords, I shall also speak to Amendment 124. Amendment 76 seeks to ensure that a clear process is in place by which adults and carers can challenge decisions that have been made about their care by local authorities, and to ensure that they are made aware of their right to challenge such decisions. I am grateful to Which? for supplying me with background information on this important issue.

Under the new care and support system, there are many decisions that local authorities will take that will affect an adult’s or a carer’s access to services and what they will be required to pay towards care. These decisions can fundamentally affect families’ quality of life and financial circumstances, as we have learnt. It is right that these decisions are subject to proper scrutiny in cases where families feel that they have been made unfairly, and that those receiving care and their carers are aware of their right to challenge decisions.

18:30

There is evidence that, in a lot of decisions made by local authorities about care, there is a certain amount of subjectivity and untransparent variation in the way they are made, both between and within local authorities. This includes decisions over eligibility, financial assessments, charging, local authority rates, top-up fees, levels of personal budgets and independent personal budgets. Under the new system, many more people will come into contact with and be assessed by their local authority, and a greater light is going to be shone on these decisions, as we debated earlier today. Currently the Bill does not contain any reference to appealing these decisions.

This has previously been highlighted, and in Committee amendments to establish a care and support tribunal were tabled. The Government’s response was to say that they recognised the need to review the current complaints arrangement, and they have included it in their consultation on funding reform, including the option of a tribunal. They pointed out that there are existing regulations under separate legislation about how local authorities handle complaints in relation to social care. However, these regulations relate to any complaint that a local authority receives about a care matter—for example, about the quality of care received by a provider acting on behalf of the local authority—but they do not include an independent review element. They are not specifically designed to deal with issues of eligibility, entitlements and payments where the challenge may be about the overall decision reached, rather than the process followed. Therefore, I believe that the mechanism for appealing these decisions should also be included in the Bill.

This amendment is designed to allow the Government flexibility over the exact format of the appeals procedure, which can follow in regulations, while ensuring that the principle is enshrined in the Bill. It also, rather importantly, requires local authorities to make individuals aware of their right to appeal a decision that has been made. Too often, care recipients feel done to rather than done with, as we know. They do not understand the basis on which decisions have been made, and they feel very powerless regarding challenging them. Awareness of an existing higher-level redress mechanism, such as the Local Government Ombudsman, is very low. People just do not know about it or how to approach that office. Making users aware of their right to appeal is therefore a key part of ensuring a redress system that works effectively.

Currently, people have limited access to an independent review of decisions regarding eligibility for continuing care. We know this is a huge problem for many people. Amendment 124 would provide access to an independent review process. I am grateful to the Alzheimer’s Society and the Care and Support Alliance for providing me with some background to this issue. NHS continuing care is a package of care arranged and funded by the NHS free of charge to the person receiving care. The decision about eligibility rests not on the person’s condition but on whether the need for care is primarily due to health needs. However, as care provided by the NHS is free but care provided by social services is means-tested, the outcome of any decision can have a significant financial consequence for people who self-fund their care. There are also significant financial consequences to the NHS if a person is eligible. These consequences leave NHS continuing care fraught with dispute, and there is little impetus for the NHS to make a decision quickly, given the budgetary implications. Many people give up or face another long wait to appeal a refusal. While there are just over 57,000 people in receipt of continuing care in England, it is unknown how many people eligible in law have failed in their attempts to be assessed properly for it. At both assessment and appeal stages, various tiers of the NHS remain—I have mentioned this before—both judge and jury on eligibility, and it is only once these stages have been exhausted that the Parliamentary and Health Service Ombudsman can be involved as a truly independent arbiter. It is unacceptable for so many people with extensive health needs, some nearing the end of their lives, to have to deal with a system that is riven with bureaucracy, delay and dispute. People receiving local authority care have some hope that a council will support their case to move on to NHS-funded care, spurred on by its own financial interest for them to do so, but for self-funders there is no such hope. Some may seek out a solicitor, but many, we know, just give up.

The Joint Committee of which I was privileged to be a member felt that the Care Bill provides an opportunity to explore the Government’s intentions towards a much more effective system of complaint, appeal and redress for social care and NHS continuing care. This amendment is to probe the Government further on how they will address the lack of a truly independent arbiter early in the NHS continuing care process. I remain convinced that an initial refusal to award NHS continuing care at assessment should lead directly to an independent review body or procedure, rather than another tier of the NHS, so that people do not have to wait years until an independent body can review their case.

[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 123. In doing so, I add my support to Amendments 76 and 124, which were tabled by my noble friend Lady Greengross. Indeed, a few of my comments slightly overlap hers.

As the Bill stands, local authorities will be given many complex duties and will be required to make many decisions which will have a substantial—you could say devastating—impact on the lives of elderly and disabled people, but there is no statutory provision for any appeal or independent review process, even if decisions are made on the basis of factual or legal errors. That is the point of the comments I want to make.

I understand that the Government have committed themselves to consider a process of redress or appeal and that they recognised in their response to the Joint Committee that it is,

“vital that people have an effective way to complain and seek redress”,

but there is no assurance in the Bill that such a system will be put in place and, if one is, what its characteristics will be. As my noble friend Lady Greengross said, regulations under other legislation do not appear to do the job. I hope the Minister will comment on that situation.

For example, local authorities decide whether an elderly or disabled person should continue to receive care support. Many will lose that support as a result of cuts to local authority budgets. The impact of losing care support—an entire care package in some cases—can be catastrophic, according to Leonard Cheshire Disability and others directly in touch with disabled or elderly people. Many years ago, I worked with these people, and I find the very idea that a care package could simply be removed very frightening, even as an onlooker, let alone as somebody experiencing such a thing. People become trapped in their homes, unable to work and unable to get out. They become depressed and, in some cases, suicidal—and not surprisingly in my view. There can also be risks to people’s health. As they try to undertake tasks for which they are not well suited or which they are unable to perform on their own, they fall. Has anyone estimated the likely cost to the health service of increased falls, accidents and problems of this kind? What is the Government’s view of the economic costs to the country if family carers have to give up work in order to step into the breach when the state withdraws? The problem is that the local authority may save money but the DWP and the Treasury are likely to pick up the tab. I am not quite sure what the Minister in the other place would think about that.

It is easy for the state machinery to underestimate the incredible vulnerability of many elderly and disabled people. Applicants for care support will inevitably feel nervous and fearful of the consequences of upsetting the very people on whom they depend so heavily. It is terribly important that an appeal or review process is not only user-friendly and accessible but really is independent of the people making decisions about the person’s care. Can the Minister honestly say that care decisions will in future not vary across the country? Can he say that decisions will be made without error and always be based on the law? I do not think so. In preparing this amendment we have been mindful of the cost constraints and the need to allow Ministers flexibility to create a system that will be proportionate and sustainable. I hope the Minister will recognise this in his closing comments.

Having said that, I draw your Lordships’ attention to the fact that Leonard Cheshire Disability has specifically asked me to ensure that a full tribunal service be considered, although we did have a discussion about the financial implications of that. It argues that if such a system exists to deal with conflicts about school places, a decision to deny social care is equally as devastating. The Law Commission recognised the importance of a fair, independent and accessible system of redress.

I know that the noble Earl has discussed this issue with key stakeholders and perfectly well understands the points I am making. I hope he can give the House an assurance today that, if he is unable to accept the precise wording of the amendment, the Government will table an amendment at Third Reading that will guarantee that a suitable appeal or review process will be in place when the Care Bill comes into effect.

[Lord Warner]

My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.

I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.

18:44

Amendment 124 deals with the knotty problem of the boundary between health and social care—the continuing care issue. We looked at this in the Dilnot commission and found the assessment process monumentally opaque. It was extremely difficult to be sure that you would have consistency of assessment in different parts of the country. So much seemed to depend on individual professionals’ judgment about dependency in a very complicated set of arrangements. It is interesting that the Law Commission recommended that it would be desirable to put NHS continuing healthcare on a further statutory footing. The Dilnot commission report on page 58 said:

“We are strongly supportive of the Law Commission’s recommendation to put NHS Continuing Healthcare on a firmer statutory footing. Furthermore, as we are recommending a new national eligibility framework for social care, which is aimed at being more transparent and consistent, the Government may want to consider how this will work alongside the assessment process for NHS Continuing Healthcare”.

This is highly disputed territory. The changes in adult social care are likely to make it very disputed territory again. We have a whole raft of issues coming out of this Bill ripe for dispute between the citizen and the state without a convincing architecture to resolve them. The Government need to think again about this issue and look at putting some more convincing architecture in the Bill to make clear to the public what they can expect, both in statutory guidance and in any regulations the Government choose to make.

[Baroness Hollins (CB)]

My Lords, briefly, I support all the amendments in this group, particularly Amendment 124 to which I added my name. There were a number of voices calling for an appropriate system of redress for disputed decisions. Many people do not really understand social care systems and why decisions are taken and they feel powerless, often at a time when they are facing enormous challenges and may fear that complaining is going to lead to even more negative changes to their support. It seems to be a matter of justice to have a very clear and understood route to redress and I hope these amendments will be considered seriously.

[Lord Mackay of Clashfern]

My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.

When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.

However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.

The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.

[Earl Howe]

My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.

Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.

On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.

As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.

While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.

In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.

The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.

The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.

19:02

I will now turn to Amendment 124, which relates to NHS continuing healthcare eligibility. This amendment seeks to make provisions in regulations that set out a system for the appeal or review of decisions made about NHS continuing care, independent of the NHS, on a question of fact or law. I can assure noble Lords that such a provision is not necessary. Decisions as to whether someone is eligible for NHS continuing healthcare are, of course, taken by the relevant NHS body. We have a well established process for the review of such decisions, which is well understood by the NHS and local authorities. It is set out in the 2012 regulations addressed to CCGs and the NHS Commissioning Board, and in the National Framework for NHS Continuing Healthcare. The regulations and the national framework prescribe a three-step process that involves independent scrutiny.

The first step is for an individual to request a review of an eligibility decision; this would be undertaken by the relevant body itself, usually the clinical commissioning group. In the second step, NHS England arranges for an independent review panel to review the process undertaken and the decision reached by the relevant body. The panel will have an independent chair and will include NHS and local authority representation—not, incidentally, the bodies responsible for the original decision. The relevant body should accept and action the recommendation of the panel in all but exceptional circumstances. The third and final step involves taking the case to the Parliamentary and Health Service Ombudsman for an independent review.

There is, therefore, sufficient independent scrutiny already within the current review process. However, I understand that the level of independence in this process is not always adequately communicated. We are therefore happy to explore how we might improve this, outside the legal framework. I hope that the noble Baroness, with those reassurances, will feel able to withdraw her amendment.

The noble Baroness said that in her view, individuals are left waiting too long for a decision on CHC eligibility and a panel decision. The national framework sets out that in most cases CCGs should make eligibility decisions within 28 days of receipt of a checklist or other notification of potential eligibility. However, in March last year, we issued good practice guidance to CCGs, which states that there should be a timeframe for the responsible NHS body to deal with a request for a local review, which should be within three months of receipt of a request, and a timeframe for the independent review to be conducted, which should be within three months of the request. I hope that that information is useful to the noble Baroness, and that it will guide her decision.

[Lord Warner]

Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?

[Earl Howe]

I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.

[Lord Mackay of Clashfern]

Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.

[Earl Howe]

I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.

I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.

[Lord Warner]

Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?

[Earl Howe]

I shall certainly do so.

[Baroness Greengross]

My Lords, I thank all the noble Lords and noble Baronesses who have supported these amendments. I am encouraged that the issue is being taken so seriously by the noble Earl. In a way it is a shame that the timing of the consultation is as it is, and that we will not get it through until December. I have always been worried about certain aspects of NHS complaints procedures, when the body that looks at those procedures is the NHS itself. I have felt for many years that that is unfortunate. I am very pleased that the Minister has agreed to look again seriously at all this. We need to protect these extremely vulnerable people from not getting the best level of service that they can because of a decision that could be to the detriment of their care, which could leave them feeling that their situation is hopeless and that there is nothing they can do.

I therefore thank the noble Earl. I am pleased that he is prepared to look at all this again and I hope that we can have some discussions on the outcome. This was a probing set of amendments—I did not intend to do anything other than probe—but I thank him and hope for better news about this or for more detailed decision-making in the near future. In the mean time, I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Amendment 77

Moved by

[Baroness Greengross]

77: After Clause 41, insert the following new Clause—
“Power of access for confidential interviewAdult safeguarding access order
(1) An authorised officer may apply to a court for an order (an “adult safeguarding access order”) in relation to a person living in any premises within a local authority’s area.
(2) The purposes of an adult safeguarding access order are—
(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect,(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse,(c) to enable the authorised officer to ascertain whether that person is making decisions freely, and(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.(3) When an adult safeguarding access order is in force the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).
(4) The court may make an adult safeguarding access order if satisfied that—
(a) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect,(b) it is necessary for the authorised officer to gain access to the person in order to make whatever enquiries thought necessary and to make a decision as required by section 41(2) on what, if any, action should be taken,(c) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.(5) An adult safeguarding access order must—
(a) specify the premises to which it relates,(b) provide that the authorised officer may be accompanied by a constable,(c) specify the period for which the order is to be in force.(6) Other conditions may be attached to an adult safeguarding access order, for example—
(a) specifying restrictions on the time that the power of access conferred by the order may be exercised,(b) providing for the authorised officer to be accompanied by another specified person,(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).
(8) On entering the premises in accordance with an adult safeguarding access order, the authorised officer must—
(a) state the object of the visit,(b) produce evidence of the authorisation to enter the premises, and(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.”

[Baroness Greengross]

My Lords, I am sorry to be popping up and down. This amendment and the others are about elder abuse. I have been involved in the issue of elder abuse for very many years—it is something that I am very familiar with. It is an issue which we have not, as yet, focused on nearly enough in this country. We have recently learnt, from data from the Health & Social Care Information Centre and Age UK, that there has been a “disturbing” rise in the number of reports of possible abuse of vulnerable elderly people in England. Unfortunately, the majority of this abuse is, as we know, by people who are close to the person—that is, family, carers and friends living in the same household, because the majority of abuse happens in people’s homes.

We have seen a 4% rise in the number of cases of alleged abuse referred for investigation in the past year. I urge the Government to do more to protect vulnerable adults. It is a serious issue and, in my view, the danger might unwittingly be increased as a result of some of the positive things that we are doing; for example, personal care planning, which gives people the opportunity to give money to relatives and to use the money for care which has not been planned in the way it used to be. There are many more doors for abuse opening than there used to be, so we have to prevent abuse even more effectively than we did in the past.

In response to the situation, the BBC has reported a Department of Health spokesman as saying:

“No-one should suffer abuse or neglect in a place they are meant to feel safe in, whether this is in their own home or in a care setting”.

Nobody is going to argue about that, but we must put this principle into practice and seek out abuse rather than passively wait for victims to appear. Sadly, some of those victims will never appear. We know why: people are not going to report their son or daughter who is hitting them, being violent or stealing their money because this might make them appear a bad mother or bring the family into disrepute. There are all sorts of reasons why very few people complain.

I am aware that new measures are being considered to make directors of care homes and hospitals personally and criminally accountable for failures in care if they allow neglect or abuse to take place. However, this will not really help people who are being abused in their own homes.

Figures from the Health & Social Care Information Centre have shown that the number of cases referred for investigation by councils in England rose from 108,000 in 2011-12 to 112,000 in 2012-13. While 45% of these cases took place in a care home, 38% of the alleged abuse took place in the older person’s own home. Physical abuse and neglect were the most common types of abuse reported. In 6% of cases the abuser was the older person’s partner; in 16% it was another family member; and in 37% it was a social care worker. Three-fifths of the referrals were for vulnerable adults—those described in the report as people who may be in need of community care services because they are elderly or suffer mental illness, disability or another ailment and are aged 65 or older.

I endorse the expressed views of Age UK and Action on Elder Abuse in that any abuse of older people is unacceptable. We need a zero-tolerance approach to any abuse, whether through neglect, financial manipulation or physical or mental cruelty. My greatest fear is that there are still many cases that are not reported. This amendment would assist the authorities in gaining access to such victims where their abusers may naturally be the very individuals preventing legitimate access.

In my first proposed new clause, I seek to support Action on Elder Abuse in its claim that there are situations where victims of abuse are imprisoned in their homes by a perpetrator who subsequently denies access to adult safeguarding staff. In such circumstances there are no current legal means by which access can be achieved. There is need, therefore, for a power of access for confidential interview, but to occur only where the reasonable suspicion of a social worker or another practitioner is tested by application to a court, which would consider whether to authorise such access. This is available in the Scottish Act and it is proposed in the Welsh Bill through application to a justice of the peace.

19:15

In my second proposed new clause, I seek to rectify the fact that there is also currently no duty on agencies to notify a local authority if they believe that an adult is at risk of abuse. Local authorities cannot be expected to identify all abused people by themselves, or to rely on the goodwill of others to make referrals. There is a need to underline the responsibility of all agencies to report if they reasonably believe that an adult is at risk.

My third proposed new clause seeks to create a specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. In such circumstances, they can be covered by the inherent jurisdiction of the courts. That is the only way and is time-consuming, costly and not widely used in such circumstances.

Safeguarding adults review teams should also include a social worker with substantial experience of safeguarding work. We really want an experienced social worker, with the support of the local police when there is not a sufficiently senior social worker, to be able to access the person in their own home. Unless we achieve that, we are not going to protect these vulnerable people, who will not report the abuse for all sorts of reasons—it may be a family history of abuse; it may be revenge on a parent for what they did in the past; it may be all sorts of reasons. If people cannot get into their home, we are not going to deal with this problem.

I know that there is a huge reluctance to demand access—we had the same story with children many years ago—but we have to have it; we have to get access in these circumstances, with the support of the judiciary. I beg to move.

[Lord Rix (CB)]

My Lords, I lend my support to Amendment 77, tabled by my noble friend Lady Greengross. I would also like to express astonishment that we seem to have reached the target for tonight before the dinner hour.

My interest, of course, is with people with a learning disability and what is increasingly referred to as mate crime. This is where someone has befriended a person with a learning disability and is exploiting or abusing them in some way. In some cases this person may be living with them and, for example, concerns may have been raised by neighbours that the person may be being abused. Currently, the local authority would be unable to speak to the adult with a learning disability to establish if they are all right as the other person, the third party, always answers the door and will not let them in. This power would change that. I understand that the power on the statute book in Scotland is being used sparingly, and I believe that it is used appropriately.

I now turn to Amendments 79A and 81A, which are tabled in my name, on strengthening the safeguarding clause. Currently only financial abuse is defined in the Bill. However, there are of course many other types of abuse, such as physical, psychological and sexual abuse, as well as neglect. The amendment seeks to rebalance the definition. I understand that there has to be a definition of financial abuse in the Bill as there is not a legal definition elsewhere. However, limiting the definition to financial abuse, suggests that there are no other forms of abuse or that professionals and agencies should focus on financial abuse alone.

Although I do not doubt that people with a learning disability suffer financial abuse, other forms of abuse are far more common. Indeed, statistics on the number of safeguarding referrals detailed in the Abuse of Vulnerable Adults in England report for 2012-13 show that physical abuse and neglect were the most common. We would not wish inadvertently to elevate financial abuse above and beyond other forms of abuse. Of course, I understand that there is a reluctance to list types of abuse in case the list appears to be exhaustive and never-ending. The amendment adds the option to specify other forms as detailed in guidance, which I hope will allay such fears.

Amendment 81A, the second amendment tabled in my name, places a duty on safeguarding adults boards to send a copy of their annual report to the Secretary of State. These reports are important in that they detail the findings from safeguarding adult reviews that have been carried out. In addition, a welcome government amendment has added that these reports must now show the actions that boards have taken to implement the findings.

At the moment Schedule 2 says that a copy of the annual report must be sent to the CEO and leader of the local authority, the local policing body, the local Healthwatch and the chair of the health and well-being board. It is important that lessons are learnt nationally and sending these annual reports to the Secretary of State will allow us to understand the national picture and issue guidance as appropriate. People with a learning disability are some of the most vulnerable people in our country and not to monitor and respond to abuse at a national level is quite unacceptable.

[Baroness Meacher]

My Lords, I support Amendments 77, 80 and 82, to which I have added my name. I will also comment on Amendment 79.

I strongly support the need for adult safeguarding access orders and applaud the noble Baroness, Lady Greengross, for tabling the relevant amendments. As we discussed last week, as local authority resources shrink further—the Minister referred to a 5% reduction so far—the reality is that care will be left more and more in the hands of relatives, many of whom may themselves be elderly and frail; or indeed they may be younger, with childcare responsibilities and have great difficulty in providing support in all directions. Inevitably, many family carers will find it extremely hard to cope, and there will undoubtedly be situations when elderly or disabled people are neglected or in some way abused. I fear that the only way in which family carers will get the help they need will be if adult safeguarding access orders are available, so that following an alert the local authority can become involved, assess the situation and, where appropriate, prioritise further support.

As public services shrink, the neglect of elderly and disabled people—even gross negligence in some cases—will become a growing problem that could very easily become a national scandal. Having said all that, I part company with my noble friend Lady Greengross when it comes to Amendment 79. We have the criminal law. It may not cover absolutely everything but I would not want to see any increase in the likelihood that an overburdened family carer could face criminal charges if they reach the point where they cannot continue to care appropriately for a relative. For me, the purpose of adult safeguarding access orders is to ensure that problems are identified—they certainly need to be—and support is made available in order to enable a carer to cope in the style they would wish to provide.

[Baroness Hollins]

My Lords, I support the amendment in the name of my noble friend Lady Greengross on the duty to report adults at risk, which replicates a duty within the Welsh Bill. I spoke to a similar amendment in Committee.

Providers, together with other partners, will often be best placed to identify abuse and neglect, and it makes sense for them to report to the local authority. At Winterbourne View there were 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E but agencies did not take any action. They believed it was someone else’s duty to report and take action. Putting this duty in the Bill would emphasise its importance and would be a vital step in ensuring that the local authority is notified so that it can then take the appropriate action. Leaving this to guidance and local protocols is not a satisfactory solution.

I also support my noble friend Lord Rix’s Amendments 79A and 81A on safeguarding. My noble friend has highlighted how abuse comes in many different forms. The breakdown of the nature of referrals is set out clearly in the Abuse of Vulnerable Adults in England 2012-13 report. The most common was physical abuse at 38,500. There were 24,500 referrals for financial abuse, the third highest. It seems an eminently sensible amendment to add some balance to this clause.

My noble friend’s amendment on safeguarding adults boards sending copies of their annual report to the Secretary of State also seems eminently sensible. Looking at safeguarding annual reports across the country would allow the Secretary of State to see the national picture as well as to monitor what works and what does not. Guidance can be issued where worrying trends are observed and good practice shared. This is about leadership at a national and strategic level, which could help to tackle the abuse and neglect of the most vulnerable members of our society. I do not think it is about extra bureaucracy.

[Lord Warner]

My Lords, I rise briefly to support Amendment 77 and to ask the noble Earl whether his department has actually looked at the legislation that protects children to see whether this is in line with that legislation.

My child protection legislation knowledge and expertise are a bit rusty but the basic rule of child protection is that you see the child in their home environment. That is rule number one. If you look at many of the cases that have hit the headlines after going wrong, it is due to a failure to secure entry early on in the proceedings to see the child in their home environment. The noble Baroness, Lady Greengross, has highlighted a very important issue. I am still struggling to understand why the Scots and the Welsh think it is important to retain this kind of approach but we in England do not. There does not seem to be a consistency of purpose across the borders.

Lastly, with regard to neglect, if you look at the data on child protection, I think the fastest growing area in which courts are authorising care orders and approving care proceedings for children is neglect. We should not shy away from the fact that when times are hard this may be a growth area. I am very pleased that the noble Baroness, Lady Greengross, has included abuse and neglect in her amendment.

[Baroness Barker (LD)]

My Lords, I support the noble Baroness, Lady Greengross, particularly on Amendment 77 about powers of access and entry. She and I were both there at the birth of Action on Elder Abuse, which grew for a reason: people had identified and begun to codify the many different forms of elder abuse.

I absolutely sympathise with what the noble Lord, Lord Rix, is trying to do. Indeed, I had the same thought myself but I will defend the Bill by saying that other forms of abuse—physical, sexual, whatever—are set out in different pieces of legislation. What this Bill does is define financial abuse for the first time. That is really important because we know that very many older people are financially abused by relatives and until now the financial services industry has been pretty hopeless about dealing with it. That is why that is there.

A power of access is important precisely for the reasons identified by the noble Lord, Lord Warner. What we are talking about here is the right of a social worker with a police escort, having got permission via a legal document, to go into somebody’s house, where there is a suspicion that criminal activity may be taking place. That is the magnitude of what we are talking about.

19:30

That leads to my second point, which is that it is right for us to anticipate that, just as in Scotland where these powers have been put into law, they will be used very sparingly. There will not be many cases. However, these types of cases are awful, with people suffering truly horrendous abuse. Therefore, it is important that we act.

In the lead-up to this debate, at an earlier stage of the Bill, noble Lords argued against the proposals of the noble Baroness, Lady Greengross, for two reasons. One was that we have legislation already in place that is sufficient, and that it is simply a matter of practitioners not knowing about it. That is not a defence of existing legislation. If it is ineffective and does not work, it should be redrawn and redefined.

The Minister said—I think in Committee—that the police know what they are supposed to do. They may well do, but members of the general public do not know what to do if they suspect that an older person is being abused. They probably do know what to do if they think that a child is being abused, but not if an older person is being abused. Therefore, that would be another benefit of having clear law on statute.

In Committee, the noble Lord, Lord Patel of Bradford, said that people from mental health organisations were very much against the proposal to grant powers of entry because they believed that it would weaken the necessary trust between mental health service users and the staff with whom they work. We discussed this when community treatment orders were coming into being under the Mental Health Act. I understand those fears, but with older people we are talking about something different; we are talking about a third party, usually a relative or close friend, deliberately keeping other people out of somebody’s home in order to go on perpetrating abuse. That is a completely different situation from a mental health professional dealing with a client. Therefore, I support the amendments.

I say to the noble Baroness, Lady Meacher, who opposes Amendment 79, that the first time anybody talked to me about elder abuse—I was sitting in a hall with a bunch of colleagues—they impressed on us above all that there is carers’ stress and there is elder abuse, and that they are two completely different things. We are not talking about penalising carers who are stressed; we are talking about taking proper action against people who are perpetrating criminal abuse on vulnerable people. That is a wholly different thing. That is why the noble Baroness, Lady Greengross, is right.

[Baroness Wheeler]

My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.

The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.

We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.

The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.

Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?

As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?

I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.

The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.

We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.

The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.

Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?

[Earl Howe]

My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.

The mental health charity Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.

Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,

“will not result in the person being at greater risk of abuse or neglect”.

I have to ask how a court could ever reliably make such a judgment in these circumstances.

The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.

19:45

I understand the concerns behind Amendment 78, tabled by the noble Baroness, Lady Greengross. It is, of course, imperative that anyone, but particularly local authorities and their relevant partners such as those in the NHS, who suspects someone is at risk of abuse or neglect knows what action to take. Our best chance of ensuring that relevant partners take action when they suspect abuse or neglect has occurred will be through the adult safeguarding boards which comprise the local authority and relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in Schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect.

Existing regulations and guidance are clear that partners and staff are required to report abuse and we will be issuing new guidance on safeguarding under the powers in the Care Bill. Professional codes of practice, regulators’ requirements and employers’ policies should provide clarity in this respect. Furthermore, the changes we propose to its registration requirements would make it easier for the CQC to take action against registered providers in cases of abuse.

A fundamental truth at the heart of all this is that no amount of legislation will prevent abuse of adults vulnerable to abuse. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals.

On Amendment 79, I agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. However, civil law already provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought by this amendment. Further specific offences exist under health and safety legislation which would enable employees in care establishments and agencies to be prosecuted for failing to take reasonable care over the health and safety of others, while CQC registration requirements would enable providers of regulated activities to be prosecuted for neglect or acts of omission which cause harm or place service users at risk of harm. Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult, or is authorised to act for the adult under the provisions of the Mental Capacity Act. A specific offence is justified here because of the evidence that such people are highly vulnerable to abuse or neglect.

I turn to Amendment 79A, tabled by the noble Lord, Lord Rix, which seeks to make a statutory definition of “abuse”. Our decision not to do this reflects a desire not to restrict the scope of local authorities’ inquiry duty. It seems to us inevitable that creating any list of types of abuse risks excluding something which a local authority or its partners may wish to inquire into. I think that is a real danger. We have made an exception regarding financial abuse to be absolutely clear on our intention for financial abuse to be included within the scope of the duty when it may not necessarily be considered as falling within the natural meaning of “abuse”. It is worth reminding ourselves that the Joint Committee which carried out pre-legislative scrutiny on the draft Bill agreed that “abuse” is an ordinary English word, capable of being understood without being defined.

Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff—

[Lord Rix]

I fully understand the argument that the Government do not want a great list of what constitutes abuse. However, the Minister said earlier that it would be possible to give local authorities a batting order, as it were, of what is in legislation. I realise that abuse is covered in legislation, but would it be possible at least to make sure that local authorities do not suddenly think that only financial abuse is to be considered when they look at this Bill? That is all I am asking for.

[Earl Howe]

I will gladly look into that point. I am sure that it is possible to do that but, as the noble Baroness, Lady Barker, said, many provisions on the statute book are designed to protect individuals from abuse in one form or another and make criminal offences of those actions. Nothing has changed as regards those criminal provisions. If they need to be underlined, however, and if there is scope for misunderstanding what the Government are doing here, then I take the noble Lord’s point, and will gladly reflect and come back to him on that.

Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff in boards and reviews. In Schedule 2 we make it clear that chairs and members of boards must have the “required skills and experience”. It would be impracticable to put into primary legislation every possible type of expertise and professional knowledge that might be needed. We must allow boards the flexibility to appoint members as they see fit. We will, however, ensure that the importance of social work is recognised in guidance, which will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.

Government Amendment 81 responds to an amendment tabled in Committee by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. On reflection, I see merit in placing a duty on safeguarding adults boards to publish an annual report. This amendment will increase the transparency and accountability of boards.

Finally, Amendment 81A, tabled by the noble Lord, Lord Rix, requires that safeguarding adults boards provide their annual reports to the Secretary of State. With a duty on boards to publish their annual report, we can be assured that they will be publicly available. We would expect the local Healthwatch and health and well-being boards to monitor the safeguarding adults board’s progress and report to the Secretary of State if there are particular matters of concern. To require the board formally to submit a report to the Secretary of State would, if nothing else, undermine the primacy of local accountability, which is at the heart of our approach to safeguarding. I hope that, on reflection, the noble Lord will agree with me.

I hope that I have convinced your Lordships that we have done all that we properly can to provide the right legislative framework for safeguarding and, in consequence, that noble Lords will feel able not to move their amendments.

[Baroness Greengross]

My Lords, I have to say that I am extremely disappointed that the noble Earl cannot in some way meet the requirements that I put forward in my amendments. Unfortunately, the number of older people who suffer abuse is growing all the time. The sort of personal plans for care that we now want to introduce for everyone just make such abuse a greater risk than it was before. We know that an awful lot of older people are shoved in a room, the door is closed, they get their meal and no one does anything else. Over a long period, those people’s conditions can get worse and worse. When and if they are eventually discovered, it is too late to do anything to help them.

The sort of care that we want to provide for people might be damaged by a refusal to look at this issue in greater detail. I am really disappointed. I understand the noble Earl’s views but disagree with them. I thank all noble Lords who supported what I have said and I assure my noble friend Lady Meacher that I was not intending to persecute carers. My intention related to people who, I am afraid, inflict real harm and hurt on some of the most vulnerable people in our society. I have worked on this issue for years; that is why we set up Action on Elder Abuse, the only specialist agency to look at this. Its view is strong and has not changed. We must have some sort of protection for these very vulnerable people. I hope that one day we can get this matter looked at again and I hope that the Minister will consider it in the future. In the mean time, I withdraw my amendment.

[Earl Howe]

Before the noble Baroness makes a final decision, I hope that I have been clear that I have reflected on her amendment. I cannot give her false hope that I will reflect further between now and Third Reading; so if she wishes to test the opinion of the House, she should do so now.

[Baroness Greengross]

I am hesitating only because of time and I know that a lot of people have gone home. I thank the noble Earl for his advice and, on that basis, I seek to test the opinion of the House.

19:55

Division 2

Ayes: 72

---

Labour: 48
Crossbench: 17
Liberal Democrat: 3
Independent: 1
Plaid Cymru: 1

Noes: 143

---

Conservative: 98
Liberal Democrat: 40
Ulster Unionist Party: 1
Crossbench: 1
Independent: 1

20:06

Amendments 78 and 79 not moved.

Clause 42: Enquiry by local authority

Amendment 79A not moved.

Schedule 2: Safeguarding Adults Boards

Amendment 80 not moved.

Amendment 81

Moved by

[Earl Howe]

81: Schedule 2, page 105, line 34, at end insert—
“( ) what it has done during that year to implement the findings of reviews arranged by it under that section, and( ) where it decides during that year not to implement a finding of a review arranged by it under that section, the reasons for its decision.”

Amendment 81 agreed.

Amendment 81A not moved.

Clause 44: Safeguarding adults reviews

Amendment 82 not moved.

Consideration on Report adjourned.

European Union (Approvals) Bill [HL]

Monday 14th October 2013 Lords Chamber

Committee and Report

20:08

Clauses 1 and 2 agreed.

Bill reported without amendment.

House resumed.

Report received.

House adjourned at 8.10 pm.