Grand Committee
Children and Families Bill
(11 years ago)
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The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, welcome to the 11th day of Committee on the Children and Families Bill. The noble Baroness, Lady Northover, wishes to say a word.
Baroness Northover (LD)
My Lords, with the Chairman’s leave, I would like to remind everyone taking part in Committee proceedings today and on Wednesday that these are our last two days in Committee. The usual channels and all those involved are committed to that objective. To that end, we have agreed to sit to target this evening and on Wednesday, if necessary sitting later than our usual rising time by half an hour or so. Today’s target is to complete Amendment 266AZZZA.
Baroness Hughes of Stretford (Lab)
Could I just clarify that? I think what has been agreed by the usual channels is that we will sit until 8 pm—that is, an extra half an hour, not thereabouts and not to target.
Baroness Northover
I hear what the noble Baroness says and I am sure that the usual channels will also have heard what she says. I will send an e-mail and clarify if need be.
Clause 76: Repeal of local authority’s duty to assess sufficiency of childcare provision
Baroness Tyler of Enfield (LD)
My Lords, I rise to propose that Clause 76 should not stand part of the Bill. I have considerable concerns about the clause as it stands and wish to probe the Government’s thinking. In technical terms, Clause 76 removes Section 11 of the Childcare Act 2006, which places a statutory duty on local authorities in England to assess the sufficiency of childcare. Section 11 supports the Section 6 Childcare Act duty on local authorities to provide sufficient childcare for working parents as far as is reasonably practical.
I am aware that the Government’s view of this is that the childcare sufficiency assessment is simply a bureaucratic burden which can be removed with no drawbacks and, indeed, that this would allow local authorities to spend more time on securing sufficient childcare provision. I do not think it is that straightforward. The assessment was not introduced simply as a bureaucratic process designed to divert time and resources; it had a clear purpose. In practice, Section 11 sufficiency assessments are the mechanism through which local authorities meet, and are held accountable for, the Section 6 sufficiency duty. My key concern is that repealing Section 11 and the associated regulations without an effective replacement will effectively revoke the Childcare Act sufficiency duty altogether in many areas.
Would not a better solution to concerns about excessive prescription in the Section 11 regulations be to maintain the Section 11 duty itself but to simplify or revise the regulations? Evidence suggests that statutory guidance is not likely to be an effective alternative to a duty in primary legislation if it leads to a duty having a lower financial priority or not happening at all. On top of this, the Government have reduced statutory guidance on the sufficiency duty from 70 pages to a single page—you could say that is going from the sublime to the ridiculous—which removes important guidance on what is meant by sufficient childcare. There are concerns that this will lead to lower-quality assessments.
We all know that there are substantial gaps in access to high-quality affordable childcare. For example, just one-fifth of local authorities believe that there is sufficient childcare in their area for the under-twos. In particular, there is a chronic shortage of high-quality places in disadvantaged areas, for parents working atypical hours, often on low incomes, and for children with additional needs. We all know how this undermines what I think we all want to do in terms of promoting social mobility and reducing education inequalities. Therefore, it remains my contention that an effective Childcare Act sufficiency duty remains an important tool in social policy. Of course, I accept that some assessments do not assess sufficiency robustly or reliably, not least because every local authority ends up having to reinvent the wheel. Tellingly, the consultation on removing the Section 11 duty did not show support for removing Section 11 itself as distinct from the outdated regulations. This is where the nub of the problem, and my concerns, lie. Crucially, in their responses, 60 local authorities explicitly requested more detailed guidance on sufficiency assessments than the Government had provided. Surely some publication of good-practice guidance to support local authorities in developing their assessments and their action plans would be helpful.
If this clause remains in the Bill, local authorities will be obliged to provide only an annual report on levels of local childcare to elected members. I am not convinced that this more light-touch approach will provide the same level of incentive for local authority investment in ongoing support, and indeed challenge, from early-years teams, which currently work to ensure that childcare provision is not only sufficient but of high quality. I think we all consider that to be very important, and it is also vital to meeting the needs of young children with special educational needs and disabilities.
In March 2013 the National Children’s Bureau—of which I am president and therefore declare an interest—surveyed local authorities’ early-years teams and parents to gauge views on the removal of the duty to carry out childcare sufficiency assessments. Only 20% of respondents were confident that their local authority would be able to secure sufficient childcare if the local authority duty to carry out the sufficiency assessment were removed. Given such low levels of confidence, on what does the Minister base her confidence that removing the duty to assess sufficiency is the right way forward?
In conclusion, looking at the big picture, local authorities in England receive £3 billion to £4 billion of early-years funding annually. Public investment on this scale should be matched by a legislative framework to guide effective investment and ensure accountability. Like other noble Lords present, I was actively involved in the Care Bill currently before Parliament. The Care Bill was introduced with a new sufficiency duty for adult social care, modelled on the Childcare Act, including a duty in primary legislation to understand the supply and demand of services. It is difficult—even a little odd—to explain the removal the same duty in early-years provision at exactly the same time. I beg to move.
Baroness Hughes of Stretford
My Lords, on behalf of my noble friend Lady Jones and myself I oppose the proposition that Clause 76 should stand part of the Bill. I will also speak to Amendment 240S in our names, which is an amendment to government Amendment 240R.
As the noble Baroness, Lady Tyler, said, Clause 76 would repeal the duty of local authorities, under Section 11 of the Childcare Act, to undertake and publish regular assessments of the sufficiency of childcare in their area. In so doing—I entirely agree with the noble Baroness —it would effectively neutralise the general duty, under Section 6, to ensure sufficient childcare for working parents.
The Government carried out a very inadequate consultation on this proposal, and produced findings which can be described, at best, as one-sided. Contrary to the Government’s claim, the consultation did not show support for removing the Section 11 duty, but rather for the need for revised guidance and a real effort by the Government to help all local authorities implement that duty as well as the best authorities are already doing. I agree that some action is necessary: where practice is variable; where there are shortages of childcare, as in many areas; and in relation to specific needs, for example parents who work unsocial hours or have disabled children,
This nurturing of the role of local authorities in driving up supply and continuous improvement in childcare is important. While some local authorities are doing it very well, they use different definitions and different methodologies, and many have poor action plans. As the noble Baroness said, this could and should be addressed, not by repealing the duty to assess sufficiency, but by providing guidance, developing a consistent measure of childcare demand, and a framework model for the action plans that need to come through—something the five-year review of the Childcare Act in 2009 showed was necessary. The Government may say they have revised the guidance, but they have not changed it in a way that addresses any of those issues. They have reduced 70 pages of guidance—and there is an argument that that is far too long, and practice shows it is the case—to less than two pages of sketchy, top-level, vague requirements, sending a clear message to local authorities that this duty does not matter to the Government any more.
I think it is worth reminding ourselves of why the Childcare Act 2006 substantially strengthened the duties of local authorities to ensure sufficiency of childcare: first, to stimulate the local market to increase the supply of good-quality childcare; secondly, to enable working parents and those aspiring to work to access childcare; and, thirdly, through that to support economic growth in those areas—something that is very much to the fore now. Indeed, there is a very strong business case for seeing childcare not only as important for child development and parental choice but as an increasingly essential part of the infrastructure to support people getting into work, which was never more important than now, when many families are suffering the brunt of the recession.
The Family and Childcare Trust has undertaken detailed analysis of local authority performance under the sufficiency duty. It shows that some have done well, suggesting that the problem is not fundamentally one of legislation but of good practice and the level of capability of individual authorities. Repealing that duty under Clause 76 will drive a coach and horses through the sufficiency duty itself, as the position in Scotland has demonstrated. There, there is no duty—just statutory guidance, similar to what the Government now propose for England. A third of Scottish authorities do not collect adequate data, and Scotland has only half the proportion of private and voluntary providers because local authorities do not do the work to stimulate the market and promote new childcare providers in the way that the best English local authorities have done. A much better alternative would be to replace the three-year assessment with an annual assessment, to simplify the guidance and to include frameworks for consistent supply and demand measures, to require local authorities to produce an action plan and to monitor local authority performance against those plans.
Finally on Clause 76, perhaps the Minister will explain why the Government are effectively neutralising the sufficiency duty in childcare while at the same time bringing in a new sufficiency duty in the Care Bill in respect of local authorities’ duties to ensure that there is sufficient adult care in their area. That seems a contradiction; I wonder why it exists.
Government Amendment 240R is extremely important in its potential ramifications. It introduces, at a very late stage in the passage of the Bill, significant changes to the way local authorities have to secure publicly funded, free early-years provision for three and four year-olds, and potentially has serious implications for the quality of the provision purchased, especially for the most disadvantaged children, including those two year-olds who now qualify. The Government consulted on these proposals, and the overwhelming view of local authorities was that they would have a negative impact on childcare. The proposed regulations will mean that a local authority can no longer apply its own quality assessment when deciding which providers it will commission the free places from. Local authorities will instead have to accept the most recent Ofsted judgment. Furthermore, the local authority will no longer be able to attach any conditions about quality or anything else to any provider that is rated good or outstanding.
On the face of it, I understand that in the interests of reducing duplication, requiring the local authority to accept the Ofsted judgment and not to do its own makes some sense, but I have some very specific concerns. First, the latest Ofsted inspection may be very out of date. It can be up to four years old. There may have been significant changes of leadership which have affected what is happening in a particular nursery. In short, the latest Ofsted judgment may not be a reliable indicator of current quality. If it was given a rating of good or outstanding, even four years ago, the local authority will not be able to look at the quality of that provider.
Baroness Perry of Southwark (Con)
Perhaps I may respond to the noble Baroness, Lady Hughes. Ofsted’s category of “needing improvement” does not close a nursery down; other children will continue to be there. Also, if a parent has strong reasons for choosing a local nursery, where perhaps children of friends and neighbours are already attending, a parent should not be banned from making that choice, despite knowing what the Ofsted judgment is. As the noble Baroness rightly said, that judgment could be out of date and the improvement could have happened in the mean time. It would be wrong to condemn a child to being unable to go to the nursery of parental choice just because three or so years ago Ofsted declared that it needed improvement. It is more important that parents have a choice, knowing what they are choosing. The Ofsted report is there for everyone to see and make inquiries about, and there may be powerful reasons for a parent to want a child to go to that nursery. As I say, other children are still going there, it is not being closed down and it is not being put into special measures.
Baroness Walmsley (LD)
My Lords, I, too, have considerable concerns about Clause 76, and my noble friend Lady Tyler explained our concerns very well. I do not deny that there are problems with the Section 11 duty, and many local authorities want the Government to do something about it. In fact, the reports have become a bit of a monster and some local authorities do not regard them as terribly useful. However, to repeal the whole duty is taking a sledgehammer to crack a nut. My noble friend has suggested a sensible alternative and I support her view.
I, too, look forward to hearing what the Minister has to say. If the Government were to change their mind about this, and simply change the guidance, I agree with the noble Baroness, Lady Hughes, that it would make a lot of sense to have some kind of standard template so that different local authorities could be compared with each other. Both policymakers and those who disseminate best practice would find it very useful to be able to compare apples with apples and not apples with pears. I also look forward to hearing what the Minister has to say about the word “normally” in relation to inadequate nurseries. That, too, gives me some concern.
Baroness Howarth of Breckland (CB)
My Lords, although I had not intended to speak on this section, I would like to raise one particular concern. Before I do that, I will add my concerns to those of the noble Baronesses raising the issue of repeal under Clause 76. Earlier, before we began the Committee, the noble Lord, Lord McColl, talked to me about whether a particular group of children should be given priority and whether we could find a way of doing that. I said that, if you try that, you will find that almost every group of children that local authorities currently deal with are a priority, because those are the only groups that they deal with at the moment. It is very difficult for local authorities at the moment to move into preventive work or into other areas.
If we have one piece of legislation for adults, which has the duty, and another piece of legislation for children, which does not have it, my great concern is that children will slip down the priority list in this particular area. I am not saying that they will not be protected—that will be followed up—but proper assessment for under-five provision will slip down the priority level. It has to, because that is the only way that local authorities can manage their finances and priority ratings. I hope that the Minister and the Government will look again at this repeal. I think that the way forward is to look at the regulation and the framework and to get that into an accurate package, which would take us forward.
The other area that concerns me—this is a probing question—is those children who have additional needs and who need to be placed in under-five daycare so that their parents can work or develop skills. I am thinking in particular of children with, say, autism or similar developmental issues and am really trying to probe how this fits with the government amendment. At the moment, a local authority may provide funding for a place, but if the parent wishes to make additional payments for an extra quality of service, the local authority will not pay because that would be a mixture of private and statutory funding—even if the organisation providing that service is a voluntary, not-for-profit organisation.
I take some responsibility because I suspect that, in the past, I was one of the people who pressed for the principle of not mixing private and statutory funding, but I do not think I ever saw it coming to a position where, as a parent, you could not give added quality to children in need. The difficulty has arisen because some parents have objected to having to pay—one organisation I know in particular may have to close its doors because it cannot manage the quality of care that they need to provide for these difficult children. This is really a probing question: are the Government prepared to look at mixing or is it an absolutely sacred principle that private and public funding should not be put together? I also support the other the noble Baronesses who put the other arguments so clearly.
Baroness Northover
My Lords, this is an important debate about the role of English local authorities in securing early-years provision free of charge for young children and about sufficient childcare. In responding, I will also speak to government Amendment 240R.
The Government are as determined as other noble Lords that parents should have a wide choice of early education and childcare places, and that places are of the highest quality possible. Clause 76 will remove the requirement on local authorities to assess the sufficiency of childcare provision every three years. We recognise the concerns raised by my noble friend Lady Tyler and the noble Baroness, Lady Hughes, and I hope that I can provide some reassurance.
There are two duties on local authorities relating to the sufficiency of childcare: the duty to secure sufficient childcare under Section 6 of the Childcare Act 2006; and the duty to make an assessment of sufficiency of childcare every three years under Section 11 of the same Act, which is what we have just been addressing. The first of these duties is paramount. The duty of the local authority to secure sufficiency of childcare remains in place; it is the other element that we are talking about here. We are clear that local authorities should take steps to ensure that parents can access the childcare they need.
To satisfy themselves that there is sufficient childcare in their area—my noble friend Lady Tyler is right—local authorities do indeed need to collect information on the availability of, and demand for, childcare. Our statutory guidance makes it clear that local authorities should report to elected members annually on the steps they are taking to address any gaps in childcare provision. The annual report should also be made available to parents, allowing them to hold local authorities to account for ensuring that there is high-quality, affordable childcare in their area. The noble Baroness, Lady Hughes, mentioned a simpler annual report. We are more in agreement here than perhaps it may have appeared from our initial discussions. There will need to be an assessment because those kinds of data are required, and there will need to be an annual report.
The decision to repeal the sufficiency assessment—that three-yearly, very lengthy document—was taken after public consultation. The majority of respondents supported the repeal and the proposals that local authorities should prepare and publish an annual report on the sufficiency of childcare. The noble Baroness, Lady Hughes, referred to that consultation and suggested that perhaps we did not ask whether the duty should be repealed. Perhaps I misunderstood her—it looks as if I did not—but the department did indeed ask this. The question was: “Do you support the repeal of Section 11 and the revocation of the supporting regulations?”. That was directly asked of people, and 62% supported it; only 10% said they did not.
The consultation took place between November 2010 and February 2012, and the Government published their response in May 2011; it is available on the Department for Education website. The feeling came through that what was needed was to ensure that there were sufficient places and that too much focus was perhaps going on this rather lengthy document, produced every three years, which required a lot of effort to put together and was not easy for parents to access, and so on.
No doubt in the first place the provision was made for the best possible reasons and I fully understand why it should be there, but the purpose is to try to secure sufficient childcare and to have a mechanism of putting pressure on local authorities to ensure that that happens. That is why the department is in favour of moving to an annual assessment and giving that annual report to the councillors who are accountable. I hope that noble Lords will be reassured.
The Countess of Mar (CB)
Perhaps I might ask the noble Baroness to check the dates she gave us for the consultation. It sounds as though the Government’s response came a year before the consultation was complete, if I heard her right.
Baroness Northover
The noble Countess is right. As I read that out, I was thinking, “My goodness, that is a long consultation—a very, very thorough consultation”. No doubt I may find that it was not quite like that and, if so, I will inform the noble Countess in a moment. I hope that the substance of what I am saying provides some reassurance.
Baroness Howarth of Breckland
It may be my lack of understanding, but I think that the concern is not that the assessment is being changed from the lengthy three-year bureaucratic document, with which I am familiar, but that the statutory responsibility has been changed to regulation. Is that correct?
Baroness Northover
Perhaps I may answer the noble Countess, Lady Mar. The consultation went from November 2010 to February 2011—which, I agree, is a much more normal length of time for a consultation.
Baroness Northover
I am very flattered. I will come back to the noble Countess in a moment very precisely on her point, because obviously it is very important.
Baroness Hughes of Stretford
Perhaps the noble Baroness will give way on a point of detail about the consultation. I understood that the Government did not test views on repealing the Section 11 duty. I understand that there were two questions: first, whether to move to an annual sufficiency assessment and, secondly, whether to remove the current Section 11 duty and the associated regulations altogether in one question. An analysis of the qualitative responses that people made showed that many people were very concerned about the current regulations, but they did not express a view about Section 11 as a duty in itself; they were more concerned about the onerous regulations.
Baroness Northover
I hear what the noble Baroness says. I have seen some of the responses and she rightly puts her finger on the concern about the document that was produced. Perhaps at the very least we can agree that the three-year assessment that was put in place—no doubt for extremely sound reasons—was not doing what was intended. What we seek to do here is to make sure that we have something that delivers what is required, which is the pressure on local authorities to make sure that they know what the provision is and that it is sufficient. Therefore, moving from three years to an annual assessment is important, as the noble Baroness agrees. We need something which is not so lengthy and dense that by the time it is produced three years later, many of those children will already be in school. The assessment needs to be a little more up to date than once every three years.
Baroness Hughes of Stretford
I am grateful to the Minister for her clarification. I think there is agreement on that particular proposal. Perhaps she could address the point that the noble Baroness, Lady Tyler, I and others made: namely, why do the Government want to repeal the Section 11 duty, which we think would send a very negative message to local authorities, rather than simply amend the regulations in the way in which she is describing?
Baroness Northover
I am happy to go through some other comments, which may help address those matters. If I do not adequately address them, I will be very happy to write a letter on all the points.
I have now got my papers in the right order. My noble friend Lady Tyler asked about good practice. The department would be happy to publicise any examples of good practice and local authority annual reports. Through the Children’s Partnership, the department runs a foundation years website which provides a range of guidance and good practice material to support early-years professionals. I also point out to my noble friend Lady Walmsley that the department collects and publishes a suite of data on local authority performance in the early years benchmarking tool. So information is held centrally as well, which helps inform both the Government and local authorities. Local authorities will still need to assess local sufficiency, and these proposals will make it less bureaucratic to do so. I hope that noble Lords will be willing to withdraw their opposition and will be reassured that local authorities will still need to assess the sufficiency of childcare provision and to account for it to elected members.
Government Amendment 240R allows new regulations to be made that affect the way local authorities meet their duty to secure early-years provision for young children. The amendment will allow the Government to impose a requirement on local authorities to meet this duty by funding early-years provision at any provider that meets the quality standards set out in regulations.
The department previously set out an expectation that local authorities should undertake their own assessment of a provider’s quality before funding it to deliver places. It seems to us that it does not make sense for the Government to require local authorities to make quality judgments about providers when Ofsted is undertaking a similar role. The noble Baroness, Lady Hughes, acknowledged that we have duplication here, but she was concerned that Ofsted’s assessments might take a while to take place, would therefore be out of date, and so on. Where local authorities have got concerns about a decline in quality since an inspection, they can make representations to Ofsted, which may inspect earlier than scheduled. Given that Ofsted is in place, however, it seems to us that the duplication did not make sense.
The intention is that in future, where a provider has received a “good” or “outstanding” inspection judgment from Ofsted, it should automatically receive funding from the local authority if a parent wants to send their child there. Currently, local authorities can also require providers to meet a variety of additional local conditions in order to receive funding. Some providers report that local authority improvement recommendations have conflicted with the views of Ofsted and that inconsistent requirements have presented challenges for providers operating in more than one area and looking to expand. This clause also allows regulations to be made that limit the nature of the conditions that can be imposed whenever a local authority funds an early-education place.
The noble Baroness, Lady Howarth, asked about top-up fees for children with SEN. As she pointed out, local authorities have a statutory duty to secure early education free of charge for young children, but she raised an important point. I will write to her on whether fees could be mixed in the way she talked about.
We intend to make regulations that ensure that local authorities will be able to place conditions on providers to ensure that they meet their responsibilities to meet the needs of disabled children, or children with SEN, to keep children safe and use government funding properly. Under the regulations, local authorities will also be able to set conditions that ensure funded places are completely free, so that no parent is denied access to their child’s funded place by having to pay a fee, and places will be delivered flexibly to meet parents’ needs. Of course, the noble Baroness will have noted that they have a particular responsibility to look after children with special needs. One would hope that the provision made would be appropriate and that the parents would not need to be topping up with extra fees. Nevertheless, I will write to the noble Baroness on that.
Local authorities will continue to have an important role to play in helping providers improve the quality of their provision. They will still be able to place conditions on providers judged less than “good”, requiring them to take the necessary steps to address issues raised by Ofsted at inspection. I hope that aspect will also reassure noble Lords.
Taken together, these changes will create a level playing field for all providers across the country. Nationally consistent criteria will make it easier for good providers to expand outside their local authority area and for new providers to enter the market. In particular, it will enable more childminders to deliver places, giving parents greater choice over their childcare options so that they can do what is best for their family. I urge noble Lords to support the government amendment.
I turn to Amendment 240S in the name of the noble Baroness, Lady Hughes. We absolutely share her aim that we should fund early-education places at the highest-quality providers—there is no doubt about that. The research evidence is clear that high-quality provision has the biggest impact on children’s development. Therefore, we are working very hard to drive up the quality of provision, following on from what the noble Baroness did in her role. She will also be aware of the challenges that government encounters in trying to do that, but we are taking that forward very vigorously. We are reforming the regulatory regime, including planning more rigorous and frequent inspections and a greater role for Her Majesty’s inspectors in quality-assuring those inspections.
To improve the skills and knowledge of those caring for and educating young children, we are introducing early-years teachers at graduate level and early-years educators at A-level standard. However, we do not think that enshrining in the Bill a quality threshold for funded places is the best way to achieve this. Placing a quality threshold in primary legislation would reduce the Government’s flexibility to raise the quality bar as the quality of available provision improves. It would also prevent the Government from easily adjusting the standard to reflect changes to the inspection framework; for example, if Ofsted decided to no longer have an inspection category labelled “good”. That kind of judgment is not usually put in primary legislation, as noble Lords will be aware.
I may not have addressed all the issues. I will just see if there are any other things I need to pick up. In answer to the question asked by the noble Baroness, Lady Hughes, about keeping the regulations, the Government’s view is that the statutory guidance is a more proportionate way of supporting local authorities in their sufficiency duty than the regulations, which could be bureaucratic. The guidance is in force and is available on the department’s website. I am happy to write to noble Lords to provide greater detail on that.
The noble Baroness, Lady Hughes, and my noble friend Lady Walmsley asked about funding inadequate providers. Local authorities retain the discretion in extraordinary circumstances to fund inadequate providers. For example, this would allow an authority to fund a provider judged inadequate because of a technicality, such as out-of-date policies that will be speedily rectified. Our guidance is clear, however, that authorities should withdraw funding from inadequate providers as soon as is reasonably practical if they fail for reasons of greater substance than the kind of instance to which I have just referred. I hope that that reassures the noble Baronesses.
I hope that noble Lords will be happy to support the government amendment in this group and will not press their own amendments, and will agree that this clause should stand part of the Bill.
Baroness Tyler of Enfield
My Lords, I am very grateful to my noble friend the Minister for her very helpful responses and the very constructive tone in which she gave them. I am also very grateful to other noble Lords who participated in this debate.
I think that there is a large measure of agreement on this issue. We all agree that no one wants unnecessary bureaucratic burdens on local authorities. We all agree that the Section 6 duty to secure the provision is of paramount importance. I think we can all see that having a report once a year rather than every three years is helpful. No one wants lengthy reports. Some of us have seen reports almost like telephone directories that do not seem to help very much. Those are the things on which we are all agreed.
Baroness Northover
“Discharge of authority’s duty to secure free early years provision
(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in England in relation to childcare) is amended as follows.
(2) After section 7 (duty to secure early years provision free of charge in accordance with regulations) insert—
“7A Discharge of duty under section 7
(1) Regulations may require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—
(a) the early years provider is willing to provide it, and(b) the early years provider is also willing to accept—(i) any terms as to the payments which would be made to him or her in respect of the provision, and(ii) any requirements which would be imposed in respect of it.(2) Arrangements made by an authority to satisfy any requirement imposed under subsection (1) may be made with an early years provider or with an early years childminder agency or any other person who is able to arrange for an early years provider to provide early years provision.
(3) The regulations may provide that such a requirement—
(a) applies only if the early years provider is of a prescribed description;(b) applies only if the early years provision provided by the early years provider is of a prescribed description;(c) does not apply in prescribed circumstances.(4) The regulations may provide that arrangements made by an authority for the purpose of complying with such a requirement must include provision allowing the local authority to terminate the arrangements in prescribed circumstances.
(5) In this section—
“early years childminder agency” and “early years provider” have the same meanings as in Part 3;
“parent” has the same meaning as in section 2.”
(3) After section 9 (arrangements between local authority and childcare providers) insert—
“9A Arrangements made by local authorities for the purposes of section 7
Regulations may provide that arrangements made by an English local authority for the purpose of discharging its duty under section 7—(a) may impose requirements on the person with whom the arrangements are made only if the requirements are of a prescribed description;(b) may not impose requirements of a prescribed description on the person with whom the arrangements are made.””
Baroness Northover
“Young carers
(1) In Part 3 of the Children Act 1989, after section 17 insert—
“17ZA Young carers’ needs assessments: England
(1) A local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are, if—
(a) it appears to the authority that the young carer may have needs for support, or(b) the authority receive a request from the young carer or a parent of the young carer to assess the young carer’s needs for support.(2) An assessment under subsection (1) is referred to in this Part as a “young carer’s needs assessment”.
(3) In this Part “young carer” means a person under 18 who provides or intends to provide care for another person (but this is qualified by section 17ZB(3)).
(4) Subsection (1) does not apply in relation to a young carer if the local authority have previously carried out a care-related assessment of the young carer in relation to the same person cared for.
(5) But subsection (1) does apply (and so a young carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the young carer or the person cared for have changed since the last care-related assessment.
(6) “Care-related assessment” means—
(a) a young carer’s needs assessment;(b) an assessment under any of the following—(i) section 1 of the Carers (Recognition and Services) Act 1995;(ii) section 1 of the Carers and Disabled Children Act 2000;(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.(7) A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.
(8) A local authority, in carrying out a young carer’s needs assessment, must have regard to—
(a) the extent to which the young carer is participating in or wishes to participate in education, training or recreation, and(b) the extent to which the young carer works or wishes to work.(9) A local authority, in carrying out a young carer’s needs assessment, must involve—
(a) the young carer,(b) the young carer’s parents, and(c) any person whom the young carer or a parent of the young carer requests the authority to involve.(10) A local authority that have carried out a young carer’s needs assessment must give a written record of the assessment to—
(a) the young carer,(b) the young carer’s parents, and(c) any person to whom the young carer or a parent of the young carer requests the authority to give a copy.(11) Where the person cared for is under 18, the written record must state whether the local authority consider him or her to be a child in need.
(12) A local authority in England must take reasonable steps to identify the extent to which there are young carers within their area who have needs for support.
17ZB Young carers’ needs assessments: supplementary
(1) This section applies for the purposes of section 17ZA.
(2) “Parent”, in relation to a young carer, includes—
(a) a parent of the young carer who does not have parental responsibility for the young carer, and(b) a person who is not a parent of the young carer but who has parental responsibility for the young carer.(3) A person is not a young carer if the person provides or intends to provide care—
(a) under or by virtue of a contract, or(b) as voluntary work.(4) But in a case where the local authority consider that the relationship between the person cared for and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (3) is therefore to be ignored in that case).
(5) The references in section 17ZA and this section to providing care include a reference to providing practical or emotional support.
(6) Where a local authority—
(a) are required to carry out a young carer’s needs assessment, and(b) are required or have decided to carry out some other assessment of the young carer or of the person cared for;the local authority may, subject to subsection (7), combine the assessments.(7) A young carer’s needs assessment may be combined with an assessment of the person cared for only if the young carer and the person cared for agree.
(8) The Secretary of State may by regulations make further provision about carrying out a young carer’s needs assessment; the regulations may, in particular—
(a) specify matters to which a local authority is to have regard in carrying out a young carer’s needs assessment;(b) specify matters which a local authority is to determine in carrying out a young carer’s needs assessment;(c) make provision about the manner in which a young carer’s needs assessment is to be carried out;(d) make provision about the form a young carer’s needs assessment is to take.(9) The Secretary of State may by regulations amend the list in section 17ZA(6)(b) so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.17ZC Consideration of young carers’ needs assessments
A local authority that carry out a young carer’s needs assessment must consider the assessment and decide—(a) whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;(b) if so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and(c) if they could be so satisfied, whether or not to provide any such services in relation to the young carer.”(2) In section 104 of the Children Act 1989 (regulations and orders)—
(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) before “(3B)” insert “(3AA),”, and(b) after subsection (3A) insert— “(3AA) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9).””
Baroness Hughes of Stretford
I would be grateful if the Minister could clarify the scope and impact of Amendments 241B, in particular, and 273A. This is a genuine question. I have read the note the Minister put out saying that the amendments provide clarification. I am talking about the right amendments, am I not? I beg your pardon; I misheard.
Baroness Northover
“Duty to support pupils with medical conditions
(1) The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions.
(2) In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.
(3) The duty in subsection (1) does not apply in relation to a pupil who is a young child for the purposes of Part 3 of the Childcare Act 2006 (regulation of provision of childcare in England).
(4) This section applies to the following schools in England—
(a) a maintained school;(b) an Academy school;(c) an alternative provision Academy;(d) a pupil referral unit.(5) In this section—
“the appropriate authority for a school” means—
(a) in the case of a maintained school, the governing body,(b) in the case of an Academy, the proprietor, and (c) in the case of a pupil referral unit, the managing committee;“maintained school” means—
(a) a community, foundation or voluntary school, within the meaning of the School Standards and Framework Act 1998, or(b) a community or foundation special school, within the meaning of that Act.(6) The Education Act 1996 and this section are to be read as if this section were included in that Act.”
Baroness Northover
“Local authority functions relating to children etc: intervention
(1) Section 497A of the Education Act 1996 (which confers power on the Secretary of State to secure the proper performance of local authority education functions, and is applied to social services functions relating to children by section 50 of the Children Act 2004 and to functions relating to childcare by section 15 of the Childcare Act 2006) is amended in accordance with subsection (2).
(2) After subsection (4A) insert—
“(4AA) So far as is appropriate in consequence of a direction given under subsection (4A), a reference (however expressed) in an enactment, instrument or other document to a local authority is to be read as a reference to the person by whom the function is exercisable.
(4AB) Subsection (4AC) applies if a direction given under subsection (4A) expires or is revoked without being replaced.
(4AC) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the local authority to which the direction was given.”
(3) In section 15 of the Local Government Act 1999 (Secretary of State’s power to secure compliance with requirements of Part 1 of that Act) after subsection (6) insert—
“(6A) So far as is appropriate in consequence of a direction given under subsection (6)(a), a reference (however expressed) in an enactment, instrument or other document to a best value authority is to be read as a reference to the person by whom the function is exercisable.
(6B) Subsection (6C) applies if a direction given under subsection (6)(a) expires or is revoked without being replaced.
(6C) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the best value authority to which the direction was given.””
Baroness Northover
I think that this is the amendment the noble Baroness was thinking about. I shall speak also to Amendment 273A, which is a technical amendment to bring the substantive amendment into force two months after Royal Assent. These amendments clarify the law in relation to the Secretary of State’s power to intervene in failing local authorities under the 1996 Education Act and the Children Act 2004.
In most cases, as noble Lords will know, government intervention in local authorities rests on the use of non-statutory improvement notices or, less often, on statutory directions to ensure that locally led improvement is effective. There are currently five local authorities in England under statutory direction, and 20 subject to improvement notices. The Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that put at risk the welfare of vulnerable children over an extended period.
Parliament agreed that those powers were necessary when it passed important provisions in the Education Act 1996 and the Children Act 2004. That legislation allows the Secretary of State to direct that where a local authority fails to perform its children’s services functions to an adequate standard or at all, those functions can be exercised directly by the Secretary of State or by a third-party nominee. For these powers to be exercised effectively, it is essential that the Secretary of State or the third-party nominee can fulfil all the functions required to keep vulnerable children safe and intervene to improve their life chances.
However, although this legislation is in place and its intention is clear, it leaves room for potential legal argument over how the courts would view a direction under subsection (4A). This is because, in introducing the provisions in the 1996 Act and the 2004 Act, Parliament did not clarify in legislation all the powers that are consequential upon those provisions. It is not clear beyond doubt, for instance, whether the family court would feel able to recognise a third-party nominee as if it were a local authority in care or adoption proceedings. There might also be some doubt as to whether the chief inspector had the powers necessary to inspect and report on a nominee’s performance of the local authority’s functions.
We propose, therefore, to clarify the relevant legislation to put these questions beyond doubt. This is important to enable the Secretary of State to intervene not just where the most serious social care failures occur but in the interests of certainty for children who may be taken into care or placed for adoption. In order that these powers can be exercised effectively, the new clause makes it clear that where functions are being exercised directly by the Secretary of State himself or by a third -party nominee, the Secretary of State or his or her nominee would, for example, be able to apply for or be named in care orders under Section 31 of the Children Act 1989; exercise the functions set out in Section 92(2) of the Adoption and Children Act 2002; and exercise certain other court-related functions in the same way that the local authority can. This is clearly the intention and purpose behind the provisions in the Education Act 1996 and the Children Act 2004, but in such an important area that is critical to the safety of children it is essential that there is no room for uncertainty. This new clause therefore clarifies existing powers. It does not seek to expand them.
The amendment also makes it clear that, following a direction that local authority functions be exercised by the Secretary of State or a third-party nominee, other relevant references in legislation to a “local authority” should be read as references also to the Secretary of State or a nominee. For example, in relation to the chief inspector’s inspection functions and powers, such as under Sections 136 to 141 of the Education and Inspections Act 2006, the amendment will ensure that the performance of these functions by the Secretary of State or his nominee should also be subject and open to inspection in the same way as when those functions are performed by a local authority. We do not want to leave any uncertainty over Ofsted’s power to inspect children’s services in whatever form they might be delivered. I beg to move.
Baroness Hughes of Stretford
Will the Minister clarify a couple of points about the potential scope and impact of the amendment? I can readily understand what she is saying about the need for any third-party nominee that the Secretary of State appoints to take over the administration of children’s services to be recognised by the courts in any orders for which it needs to apply to protect the safety of particular children. Because these powers have been around for some time and have been exercised in relation to a number of local authorities by this and previous Governments, can the Minister provide an example of any problem that has led to the amendment being necessary?
Secondly and more fundamentally, and because in the reference back to parent legislation it is hard to discern scope and impact, will she clarify what proposed new subsections (6A), (6B) and (6C), mean in practice? I am not clear about why the reference here is to “a best value authority” and whether that means that the powers in the amendment under which the Secretary of State can intervene in a local authority go far beyond applying to a local authority that is failing in the performance of its duty. May it, in fact, be some reference to a local authority that is not achieving best value, according to someone’s criteria?
I know I am not explaining that terribly clearly myself, but it seems that the wording here potentially widens the scope of these powers beyond their use in relation to what the Minister described at the outset as authorities that have failed and have persistently failed. This seems to be a much more generalised category of authority. I wonder whether she could put on record the department’s understanding of this issue in relation to proposed new subsections (6A), (6B) and (6C).
Baroness Northover
As the noble Baroness noted, these powers have been there but have not been used. I want to be extremely clear that this amendment speaks only to the very few cases where the capacity of local authorities to improve the quality of their children’s services is so seriously in doubt as to require them to be delivered by the Secretary of State or a third-party nominee. As she notes, we have never had to use this power.
Some examples may help to clarify the point. In the Isle of Wight, we asked Hampshire County Council to take over the delivery of services. In Doncaster, where there were huge problems, we considered using the power, but the council is now working with us to establish a trust that is clearly separate from the local authority. Therefore, the Secretary of State has decided not to remove the council’s statutory children’s services functions, and that will remain the position as long as good and constructive progress continues to be made. In both those cases, the decision was made that it was not necessary to use the powers that we are clarifying here. Nevertheless, given that those powers are there, and that it was envisaged in the 1996 and 2004 Acts that there could be instances where they needed to be used, we feel that there needs to be absolute legal clarity about the full range of powers that Parliament intended.
I re-emphasise that the powers we are talking about here in relation to children’s services would be used only in cases of extreme failure. As I say, not even in the two cases that I have cited, where things were extremely problematic, as the noble Baroness will know, were the powers used.
Baroness Hughes of Stretford
Can the Minister possibly write to me about this? I am particularly interested in proposed new subsections (6A), (6B) and (6C). She said that the powers would be used only in cases of extreme failure. Is that extreme failure in the delivery of services or is it failure, on somebody’s definition, to achieve “best value”? In other words, it is not clear whether the reference here to the Local Government Act 1999 and the references to “best value” authorities go beyond failure in service delivery and performance and could actually be a wider and more general definition of a local authority failing to deliver best value.
Baroness Northover
Perhaps the best thing would be for me to reiterate that the Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that puts at risk the welfare of vulnerable children over an extended period. I hope that that reassures her.
“Disqualification from carrying on, or being employed in, a children’s home
(1) Section 65 of the Children Act 1989 (person disqualified from fostering a child privately to be disqualified from carrying on etc children’s home) is amended as follows.
(2) Before subsection (1) insert—
“(A1) A person (“P”) who is disqualified (under section 68) from fostering a child privately must not carry on, or be otherwise concerned in the management of, or have any financial interest in, a children’s home in England unless—
(a) P has, within the period of 28 days beginning with the day on which P became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) P has obtained the appropriate authority’s written consent.(A2) A person (“E”) must not employ a person (“P”) who is so disqualified in a children’s home in England unless—
(a) E has, within the period of 28 days beginning with the day on which E became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) E has obtained the appropriate authority’s written consent.”(3) In subsection (1), after “children’s home” insert “in Wales”.
(4) In subsection (2), after “children’s home” insert “in Wales”.
(5) In subsection (4), after “subsection” insert “(A1), (A2),”.
(6) In subsection (5) after “subsection” insert “(A2) or”.”
Lord Nash (Con)
My Lords, I will speak to all the amendments in this group: Amendments 241BA, 241C, 241D, 273B and 273C.
Four of these amendments will make small changes to the Care Standards Act 2000. My intention in proposing the amendments is to pave the way for the introduction of a reformed framework for regulating and inspecting children’s homes. Amendment 241BA amends Section 65 of the Children Act 1989, which concerns the disqualification of persons from carrying on working, or being employed in, a children’s home.
In March 2013 there were 4,930 children living in children’s homes, representing just over 7% of all looked-after children. The majority of children living in homes will have been placed there by local authorities because they cannot be cared for in a family setting. They will usually be older; children in homes have an average age of over 14. A recent research study found that 62% of children in children’s homes had clinically significant mental health difficulties, and 74% were reported to have been violent or aggressive in the preceding six months. Few children stay in one children’s home for more than a year; 30% live outside the local authority responsible for their care, often at some considerable distance.
Given these children’s vulnerability, it is particularly worrying that there are significant concerns about the quality of care in some homes. While by 31 March 2013 the majority of homes were judged by Ofsted to be good or outstanding, a significant minority, 28%, were judged only adequate or poor against current minimum standards.
My department has been pushing forward for some time with a programme for reforming the pattern of care in children’s homes. We have recently consulted on some immediate changes to regulations designed to more effectively safeguard children living in children’s homes, especially those in distant, or out-of-authority, places. We have also published a comprehensive data pack, with details of children’s homes’ locations, quality and costs, and of the needs of the children in their care. We are considering ways to enhance the training and skills of the children’s homes workforce, and how to support improved commissioning of homes by local authorities.
As my department worked with Ofsted and others on plans for improving care in children’s homes, we reached a view that the current regulatory framework, established by the Care Standards Act 2000, is having a limiting effect on our ambitions to drive improvements in the quality of care provided by homes. In our view, it should only be acceptable for any children’s home to offer care that is “good”, with all homes having a clear remit to strive for excellence in respect of the children they care for. These amendments put beyond doubt the fact that the Secretary of State can make regulations that are able to define high standards for all children’s homes. Every home must have the capacity to enable all the children it cares for to achieve their full potential. These amendments pave the way for my right honourable friend the Secretary of State for Education to develop new, more stretching, quality objectives and standards for children’s homes.
We intend to support innovation by creating regulations which specify high objectives and standards. Homes should be free to decide how they achieve these standards. We intend to set high standards for homes in a number of areas, such as requirements for effective leadership and management; for the provision of excellent education; and for access to healthcare that meets recognised clinical standards. We will, of course, have to be confident that homes respond effectively to the risks and vulnerabilities faced by the children they care for. We have worked very closely with Ofsted to develop the proposal that I am outlining. As the inspectorate for children’s homes, Ofsted welcomes our aim of taking a decisive step away from a regulatory system based on minimum standards.
Our work with Ofsted also identified a small but potentially significant problem with the process involved when Ofsted has reason to consider whether a person should be disqualified from carrying on working, or being employed, in a children’s home. This power is set out in Section 65 of the Children Act 1989. I am tabling a small amendment to this section to improve the practical workability of this process. The amendment introduces a time limit of 28 days for a person to inform Ofsted that he or she has become disqualified, perhaps as a result of a past offence, in order to seek Ofsted’s consent to be involved in a children’s home. Without this explicit waiver from Ofsted, the person would be committing an offence.
Officials from my department have had the opportunity to share our thinking on all these amendments with representatives of local authorities, of children’s homes providers and of the voluntary sector campaigning for children. These services are united in their broad support for the direction of travel I am signalling today, which marks a decisive step in driving forward our ambitions for reforming the children’s homes sector. We are determined to improve the quality of all children’s homes, so that the only acceptable standard for children’s homes is good care, with all homes having a clear remit to strive for excellence. I hope I have explained the important objectives that these amendments will enable us to achieve, and that noble Lords will support them.
The Earl of Listowel (CB)
Perhaps the best way I can thank the Minister is by speaking as briefly as possible. Having worked in residential settings with young people and spent a week in a children’s home, and having been deeply concerned about the quality of the experience for children in children’s homes since I first entered this House, my perception is that the Government have taken a very careful and thoughtful approach to meeting the needs of these very needy young people—albeit that they are few in number. In the past two years or so we have realised that a number of young girls have been sexually exploited, often in children’s homes.
The Government have responded admirably to this challenge. Tim Loughton MP, the former Children’s Minister, has children’s homes in his Hove constituency, so he is aware of the problem. He addressed it carefully by setting up three working groups to look at the issue, which resulted in regulations being laid. The current Children’s Minister, Edward Timpson MP, has pursued that direction of travel with the attention to detail that is familiar to those who have worked with him. I am deeply grateful for that. The Minister is absolutely correct to emphasise the importance of staff training. It is extremely encouraging that the Government are taking this issue so seriously.
“Objectives and standards for establishments and agencies in England
(1) In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (1), for the words from “may in particular” to the end substitute “—
(a) regulations made by the Secretary of State may in particular make any provision such as is mentioned in subsection (1A), (2), (7) or (8), and(b) regulations made by the Welsh Ministers may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”(2) In that section, after subsection (1) insert—
“(1A) Regulations made by the Secretary of State may prescribe objectives and standards which must be met in relation to an establishment or agency for which the CIECSS is the registration authority.””
“National minimum standards for establishments and agencies in England
In section 23 of the Care Standards Act 2000 (national minimum standards), after subsection (1) insert—
“(1A) The standards applicable to an establishment or agency for which the CIECSS is the registration authority may, in particular, explain or supplement requirements imposed in relation to that establishment or agency by regulations under section 22.””
The Earl of Listowel
“Part 4AChildren’s centresBirth registration pilot scheme
Local authorities must establish a pilot scheme to trial the registration of births within children’s centres, and evaluate the effectiveness of the scheme to—
(a) identify and contact new families; and(b) enable children’s centres to reach more families, in particular those with children under the age of two, or who the local authority consider—(i) hard to reach, or(ii) vulnerable.”
The Earl of Listowel
My Lords, in moving Amendment 242, I wish to speak also to my Amendment 244.
Amendment 242 would enable the introduction of a pilot scheme,
“to trial the registration of births within children’s centres”.
Currently, only a small number of centres offer birth registration—the practice is not widespread. Figures from the 4Children charity’s children’s centre census of 2013 suggest that only 6% of centres currently provide birth registration. Looking ahead to the next 12 months, only 13% of respondents to the census said that they expected to be offering birth registration in a year’s time.
A report from the All-Party Parliamentary Group on Sure Start Children’s Centres was published in July, entitled Best Practice for a Sure Start, which highlighted the positive impact that the provision of birth registration can have for centres. The report included evidence submitted by the Department for Education, which stated:
“The opportunity to register births in children’s centres is potentially a very effective means of alerting parents to the support services available and the benefits of accessing these services through children’s centres”.
The department also highlighted the experience of three local authorities which currently offer birth registration services: Manchester, Bury and York. Based on these case studies, the department identified a number of benefits of implementing birth registration in centres. First, the benefit of improved reach; there has been a concern that in the past, children’s centres were not reaching the hardest to reach, particularly young teenage mothers. It is considered that this will improve the ability to get at those hard to reach groups. Secondly, parents seem to be more likely to come back again. Once they have visited to do the birth registration, practitioners find that they come back to the service. The Benchill centre in Manchester had a re-engagement rate of 87.5% in 2012-13; which means that 87.5% of those who came for the registration must have come back again for further services.
Thirdly, there is a danger of stigma in visiting a children’s centre; people may feel that they can go only if there is something wrong with them. This, however, is a universal service. Everyone would go there to register their child, so there would be no stigma attached to it. Fourthly, practitioners talk about this as an important step forward in terms of involving fathers. Fathers will go along when the child is going to have the birth registered. I am not quite sure of the technical details as to why it is so important for fathers to be involved in the registration process—perhaps one of your Lordships can tell me in a minute—but there is a strong feeling that more fathers will be involved early in their child’s life this way. Finally, it is an opportunity to showcase to parents the wonderful services that are available to them at the children’s centres.
There is a strong case for increasing provision of birth registration services in children’s centres. This would be a very good means of doing so. It is not onerous for local authorities to deliver this. It is not costly to do. The risk is that with local authorities currently carrying such burdens, this is one trick that they might miss. This would mean families and children missing out on the benefits of it. I hope that the Minister can give a sympathetic response.
I will move on to Amendment 244, which is to do with information and data sharing. It will require NHS trusts to share data on live births with local authorities in order to facilitate greater engagement with parents through children’s centres and other outreach services. This amendment would support children’s centres’ ability to engage with new parents. Sharing the live-birth data would make a significant contribution to enabling centres to identify within their reach area the new parents with whom they have not yet been in contact; allowing them to target those parents they may have missed and reach out to them accordingly.
Your Lordships may feel that this second amendment is a little bit deficient in that it is not ambitious enough, because there are other areas that children’s centres could be advised about better—for instance, the troubled families agenda. Centres do not necessarily know about who Louise Casey is dealing with through the troubled families agenda. Also, there are things called multi-agency risk assessment conference boards, dealing with domestic violence. Again, children’s centres could benefit by being given information about what those boards know about so that they can reach out to families where there is domestic violence. So your Lordships may feel that something further should be added to this amendment and more information should be shared with children’s centres. I hope that the Minister will be sympathetic to this second amendment, too. I beg to move.
Baroness Jones of Whitchurch (Lab)
My Lords, I will speak to Amendments 247 to 249 in our names. In doing so, I would like to support the amendments of the noble Earl, Lord Listowel, which are very much on a similar theme.
Our first amendment, Amendment 247, seeks to improve the information available on children’s centres and to hold the Government to account for their failure to deliver a vibrant network of children’s centres since coming into office. It requires the information to be published separately and regularly so that the trends can be clearly observed. The information that is collated on children’s centres is buried and inaccessible. It is tempting to say that this is deliberate since the Government do not want to admit that the Prime Minister has broken the commitment he gave before the election to protect the Sure Start network.
Thankfully, as a result of the work of 4Children and its 2013 children centre census, we now know that 566 fewer children’s centres are serving our communities, and that many of those that still exist are having to cut their hours or charge for services. This is a very long way from the concept of universal early-years provision, which was so welcomed when it was introduced by the previous Government. We would like to see the data set out in a structured and accessible form.
Amendment 248 on the issue of birth registration is similar to that raised by the noble Earl, Lord Listowel. Like him, we believe that there are very real advantages in births being registered at children’s centres. It would encourage a wider group of parents to visit the centres and become aware of the services on offer. It would also enable the staff to have a point of contact to reach out to isolated or dysfunctional families and offer them help.
We have often rehearsed the arguments in favour of early intervention to improve children’s life chances. The reports of Graham Allen and Frank Field both demonstrated that money spent on early years is cost effective in the longer term and helps children meet their full potential. The National Children’s Bureau’s literacy initiative is an excellent example of early intervention that can grow out of children’s centres, combining home visits with increased parental involvement in other well-being events and a dramatic improvement in child literacy. That is just one example.
Unfortunately, while it is possible to use children’s centres for birth registration if the local authority agrees, as the noble Earl, Lord Listowel, pointed out, so far only 6% of centres do that. I hope that the Minister will feel able to support our amendment, given that her own department gave evidence to the Sure Start report highlighting the advantages of birth registration at children’s centres. Our amendment requires the Secretary of State to commission an independent study into the impact on the welfare of children of requiring births to be registered in this way, supported by the option of pilot schemes to inform the study.
Finally, Amendment 249 is also similar to that of the noble Earl, Lord Listowel. It requires NHS trusts to share details of live births with local authorities so that children’s centres and other early-years providers could follow up with appropriate outreach services. Again, there is good practice in some places where data are already shared. Other trusts feel that they are unable or unwilling to share and are concerned about confidentiality issues. This is where the Government could help by being much clearer about the advantages of sharing and the terms on which it should be done. How can local authorities be expected to carry out their safeguarding and child welfare responsibilities or plan adequately for local services if they are not made aware of the total picture of births in their area?
I hope the Minister will support our amendments. When this matter was discussed in the Commons, Jo Swinson reported that a short-life task and finish group had been set up to consider these issues and that it had subsequently made recommendations to the Minister. I hope the noble Baroness, Lady Northover, is now in a position to share those recommendations with us, and to tell us what action will be taken to follow it up. I look forward to hearing from her.
Baroness Massey of Darwen (Lab)
My Lords, I support Amendments 242 and 244 in the name of the noble Earl, Lord Listowel, but ask the Committee’s permission to sit down while I speak. I also support my noble friend Lady Hughes in her forceful speech about early intervention.
During our consideration of the Bill, many concerns have been raised about services working together for the benefit of children. Indeed, an earlier amendment—we discussed it some days ago, or possibly some weeks ago—was specifically about promoting integration, with lead professionals taking a role in ensuring that integration happens. I remember—again, it was some time ago—the noble Baroness, Lady Howarth, in one of her many excellent and wise contributions, saying that without data, strategy is not possible; the noble Baroness, Lady Hughes, also hinted at that. I agree with that and I think that the amendment could support the development of a strategy for children and families at a local level.
The amendments tabled by the noble Earl, Lord Listowel, are an extension of that concept of integration and improving data sharing in children’s centres. The noble Earl has described the need for NHS trusts to share with authorities records of live births to parents resident in their area in order to facilitate the identification of and contact with new families through children’s centres and other early outreach services. To this end, as he said, this should include the format of arrangements, the safeguarding of information, the regularity of data transfer, timescales and safeguards against inappropriate sharing.
All this reminds me of a report that some noble Lords may remember, Every Child Matters, which came out in about 2004—I can see lots of nods. This was a consultation on what matters for children, followed by a government document, in the wake of the horrendous death of Victoria Climbié and the report by the noble Lord, Lord Laming, which concluded that the poor co-ordination of services, including health, police, education and social services, had contributed to that child and other children falling through the net. It was a seminal document. It had influence in involving children and young people in setting priorities and in getting services for children to work together, to look at their functions in working together and to talk to one another. This group of amendments shows that we need to look at all that again; we need to look at the integration of services.
As others have said, poor data sharing can prevent organisations, including children’s centres, from helping vulnerable children and their families. If they had birth data, they could address the needs of such families early. I remember one children’s centre that I visited in the north of England having courses for young mothers. These courses became a group support initiative to talk about breastfeeding, about bringing up babies and toddlers and about which services people could access—for example, classes on a variety of issues. Crèches had been set up at the centre. Sometimes the centre was able to offer intensive support for parents who had difficulties with finances, for example.
The organisation Action for Children has set out reasons for effective data-sharing systems and has listed some difficulties, which I hope the Minister will be able to address. Those difficulties include the fact that children’s centres may be split across district and health services; there may be no data-sharing protocols; and there may be a feeling that such systems are too resource-intensive. However, there are serious impacts in not sharing data. The noble Earl has listed some such impacts of delaying the identification of vulnerable children and their families and delaying help for such families.
When data sharing is effective—according to Action for Children, it is effective in 32% of children’s centres—local arrangements have been set up between health and the local authority. There have been meetings and good relationships between, for example, health visitors and midwives, and there has been early identification of vulnerable families and of children who are likely to have difficulties, such as those with disabilities. As others have said, this help should be offered early in order to be most effective.
One of the key issues is that data sharing forms a basis for people from various disciplines who support families to meet and to talk about the concerns, not just swap bits of paper. It has always seemed to me that people talking about issues to one another, either formally or informally, is a very good way of ensuring integrated support for families. I look forward to hearing the Minister’s reply.
Baroness Tyler of Enfield
My Lords, I support Amendment 242, to which my name is attached. The noble Earl, Lord Listowel, has already set out very clearly the arguments in favour of piloting the registration of births at children’s centres, but I will just confirm my personal support for this amendment.
Children’s centres do many good things, but one of their absolutely core values lies in their ability to reach out to some of the most vulnerable and disadvantaged groups: people who, for all sorts of reasons, are unlikely to enter into sustained contact with public services without help in doing so, but who are also the most likely to benefit from them. We have already heard the statistics from the recent children’s centre census from 4Children. That is encouraging in showing us that the widening reach is really happening and that more children’s centres are being successful in reaching out to some of the most disadvantaged. The location of birth registration services within children’s centres will really help with early intervention in the lives of disadvantaged children.
I am sure that all noble Lords in this Committee are well aware of the evidence of the huge importance of early intervention and how incredibly important what happens in the first three years of a child’s life is. Indeed, as I know from my work on the All-Party Group on Social Mobility, in some ways those first three years can almost determine life chances for a lifetime. They are absolutely critical. That is why I think that getting parents through the doors of children’s centres, ideally within six weeks of their child’s birth, and exposing them to the range of services, help and support available is critical. It is also vital to help nurture those early relationships between parents and professionals, which, again, can make such a difference. That is why I am absolutely delighted that encouraging parents to register children’s births at a local children and family centre is now part of Liberal Democrat party policy.
My final point is that the proposed birth registration pilot scheme should be seen as part of a wider strategy to provide more integrated and cohesive public services. Children’s centres not only provide childcare, as we talked about earlier, but a range of valuable help, including parenting sessions, health and well-being advice, information on jobs and employability, et cetera. For example, things such as co-locating health visitors within children’s centres enable parents to have the opportunity to speak to a health visitor about any concerns they may have, for example in relation to their child’s sleeping patterns, breastfeeding and their own health and well-being. Co-locating important services in this one-stop-shop way has a whole range of very powerful benefits. It should increase take-up and should also be value for money. It makes terribly good sense and is a real win-win. Can we try it out rather than just talk about it?
Baroness Massey of Darwen
I apologise for addressing my noble friend Lady Jones as my noble friend Lady Hughes throughout my speech. They are not the same person.
Baroness Northover
My Lords, we all merge into one after a while. I start by emphasising to noble Lords that the Government believe that children’s centres provide a very important service and have a vital role to play in supporting outcomes for children and families.
I turn, first, to the issue of data sharing. We agree on the importance of information sharing. Clearly, professionals should work together to identify families who are in need of support and offer them that support. Indeed, the Department for Education’s statutory guidance for children’s centres is clear that health services and local authorities should share information, such as live birth data, with children’s centres on a regular basis where doing so enables professionals to work better with one another to provide services for families. Moreover, current legislation makes it clear that information can already be shared where there are local agreements and processes in place that meet the legal requirements about confidentiality, consent and security of information. Naturally, we wish to support information sharing between professionals. In order to encourage this, my colleagues at the Department of Health have undertaken to liaise with NHS England and other partners to promote the sharing of live birth data and to explore the practical issues.
Baroness Jones of Whitchurch
Will the Minister say a little more about the Jo Swinson task-and-finish group? I understand that culture and professional practice were barriers to data sharing, but did any positive recommendations come out of that group that the Government are intending to take forward, or just a list of barriers that make these things more difficult?
Baroness Northover
I think it would be best if I wrote to the noble Baroness with further details and copied the letter to other noble Lords, who will clearly be very interested in what the group reported.
The Earl of Listowel
My Lords, I thank all noble Lords who took part in this debate. I particularly thank the Minister for her careful, sympathetic and encouraging response. It is good to hear that Councillor Simmonds has been meeting her department with regard to this matter and about the work that has been undertaken through 4Children to circulate information about this. I know that the Children’s Minister occasionally writes to local authorities on important matters. Perhaps this could be kept in mind, especially if we do not make the progress that we hope we will make in this area.
I omitted to pay tribute to Andrea Leadsom MP in my opening remarks. She is chair of the All-Party Group for Sure Start Children’s Centres which produced this report, and she tabled an amendment very similar, perhaps identical, to this in the other place, so she started the ball rolling on this.
The noble Baroness, Lady Massey, talked about information sharing. I remember working in a play scheme five or six years ago. I worked with a boy who was just about to be adopted. We did not know he was going to be adopted. He behaved appallingly, and it would have been so easy for us to come down hard on him because we did not know that he had just come out of care and was moving into an adoptive family. It is so important that people on the front line know what is going on with a family or with a child. How can they react sensibly otherwise?
I take what the noble Baroness says about the culture, the people and things like what is being done for social work. One hopes that the appointment of the Chief Social Worker will give front-line professionals the confidence to share information. Occasionally there are inhibitions about sharing information for legal reasons, and that may apply to some of this information; I am not too sure. I will look into that, and if it is an issue, I will come back to the Minister. I am grateful to the Minister for what she said. I will take it away and think about it. I beg leave to withdraw the amendment.
Baroness Walmsley
“Part 4AProtection of childrenActions due to a belief of possession by spirits
(1) Section 1 of the Children and Young Persons Act 1993 (cruelty to persons under sixteen) is amended as follows.
(2) In subsection (1) omit the words “and has responsibility for any child or young person under that age,” and for the word “him” substitute “any child or young person under that age”.
(3) In subsection (2), after paragraph (b) insert—
“(c) in subsection (1) the meaning of “ill-treats” includes the communication by word or by action a belief that the child is possessed by evil spirits or has supernatural harmful powers—(i) to the child concerned, or(ii) to anyone connected to that child.””
Baroness Walmsley
My Lords, I shall speak also to Amendment 246, which I have agreed should be grouped with Amendment 243, although the two matters are somewhat different, in the interest of trying to save a bit of time. I am afraid that, because both require considerable explanation, I shall have to move from my usual policy of making very short speeches, so I hope that the Committee will bear with me. As the Committee knows, the noble Lord, Lord Laming, reported on the sad death of Victoria Climbié, but he cannot be here this afternoon. He has kindly allowed me to say that he supports this amendment.
Amendment 243 amends Section 1 of the Children and Young Persons Act 1933—“Cruelty to persons under sixteen”—to clarify that to communicate to a child, or anyone connected to the child, that the child is possessed by evil spirits or is a witch amounts to cruelty and therefore contravenes the Act. The Act sets out several specific offences, although it does not mention the word “cruelty” in the text. For example, it says that if anyone who has responsibility for a child,
“wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes … any mental derangement … that person shall be guilty of a misdemeanour”.
So far, so good, you might think, but there is a group of children who have been treated most cruelly, even killed, as a result of people telling them and others that they are possessed by evil spirits or have supernatural harmful powers. Currently, it appears that the law does not accept that to cause a child such terrible mental trauma is cruel and against the 1933 Act. It also appears that it is not accepted that telling other people that the child is possessed is against the law, even though doing so often causes superstitious third parties to ill treat and even kill the child.
This amendment is very carefully worded. It does not make it an offence to believe that the child is possessed. It does not make it an offence to go away privately and pray or try to exorcise the spirit that you believe is present in the child. It just makes it an offence to traumatise the child by telling him or to pass on your belief to other people in the knowledge that it might cause them to harm the child.
The first part of the amendment would delete the words,
“has responsibility for a child or young person”.
It is not clear why this limitation was ever in there because cruelty to children does not change its nature depending on whether you have responsibility for them or not. Why should a neighbour or a lodger escape prosecution when a babysitter does not? In relation to witch branding, we must remove these words because they would allow a pastor or the sexual partner of a relative to escape, too, even though such people do perpetrate abuse, as was the case in the murders of Kristy Bamu and Victoria Climbié.
The second part of the amendment clarifies the meaning of “ill-treats” in order specifically to include the communication by word or action of a belief that the child is possessed by evils spirits or malign powers, either to the child or someone connected to him. Please note that, although these children are often referred to as witches, the word “witch” does not appear in the amendment in order not to catch the benign type of witch, commonly known as white witches, or the fantasy that is often played out at Halloween. The intention of the amendment is to outlaw not harmless practices but a proven and serious form of child abuse.
Branding a child as a witch is an incitement to hatred and an attack on the integrity of the child. Once a child is called “a witch” or “possessed”, he or she is stripped of his or her innocence and considered as a perpetrator of evil acts, instilling fear and providing a moral ground for others to ill treat the child. Those who believe in the exorcist rite of “beating the devil out of the child” are then given leeway to do so. While parents and guardians can either be prosecuted for harming a child or appropriate social work interventions can be made under civil law, a faith leader, neighbour or member of the family’s friends and community who triggered the process of abuse by accusing or “validating” the accusation against a child cannot be brought to account under child cruelty offences.
I have been encouraged to lay this amendment by the charity AFRUCA, which was established in the wake of the Victoria Climbié tragedy. Victoria’s killers justified their abuse by their belief that she was a witch. Since then, the work of AFRUCA has shown the need for clarification of the law. For more than 11 years they have made efforts to raise awareness in the community and among the public about the plight of these children, but all that work was not enough to prevent the terrible death of Kristy Bamu in December 2010 and other abuses linked to witchcraft accusations. Kristy died with 135 injuries inflicted on his body.
Various consultations carried out in the community by AFRUCA showed that the overwhelming majority of those who took part believe that a law would go a long way to stop the harmful behaviour of rogue faith leaders. The branding of children as witches is not a long-standing cultural tradition either in the UK or overseas. It is a relatively recent phenomenon, in part arising from a deliberate exploitation of families for monetary gain or heightened social status by unscrupulous individuals calling themselves faith leaders.
Baroness Brinton (LD)
My Lords, with the permission of the Grand Committee, I will speak sitting down. I declare an interest as a trustee of UNICEF. My name is on Amendment 243 and I support all that my noble friend Lady Walmsley has said. I wish to add the following. Given that the last detailed research on this topic was carried out more than seven years ago, I believe that it is important for the Government to commission a study to estimate the number of cases of possession or witchcraft among children. Following the dreadful Victoria Climbié case and one or two other well publicised cases, these cases are clearly still arising. The Metropolitan Police have reported more than 81 cases over the past 10 years. I suspect that the position is worsening rather than improving.
The impact of being called a witch or of possessing evil spirits is traumatic. AFRUCA—Africans Unite Against Child Abuse—told the story of Amelia, the mother of young Luke, who has a mild form of epilepsy. She said that,
“when Luke was about three and a half, he had an epileptic episode at a church service.
The pastor noticed and immediately turned to the congregation and said, ‘Here is a manifestation of the devil. This boy is possessed by evil spirits.’
The consequences were immediate and very upsetting. I saw the older children shunned Luke and when he approached friends who were his own age and too little to understand what was happening I saw their parents calling them to come away from Luke. We protected him from knowing what was happening, of course, but I was angry and my husband was even angrier.
We tackled the pastor, and when he realised Luke had been experiencing an epileptic seizure he was initially a little argumentative, saying epilepsy could be a sign of possession, but we told him he needed to study his bible better. In the end he was ashamed and preached a sermon about the difference between epilepsy and witches. Our friends understood what he was talking about, but he didn’t actually retract the allegation”.
AFRUCA says:
“Accusing a child of being having harmful supernatural powers is dehumanising, leading to a process of moral exclusion as the child is henceforth viewed as less than human, evil, a criminal not deserving moral consideration. It opens floodgates to all forms of other abuses including infanticide. The child is, of course, likely to share these beliefs, a horrific experience”.
In 2010, UNICEF carried out a study: Children Accused of Witchcraft, by Aleksandra Cimpric. On pages 48 and 49, two of the key recommendations are:
“Promote legal reform to decriminalize witchcraft, allow for the prosecution of persons harming children and provide special protection to children in contact with the law”,
and:
“Raise awareness and educate legal professionals”.
What has been encouraging is that, as the noble Baroness, Lady Walmsley, reported, a number of African countries have taken the UNICEF report and have made legal provision to protect children. We have not yet done so in this country.
This does not just affect churches, mosques or communities from Africa. Over the past 18 months, I and other noble Lords have heard from members of the Exclusive Brethren, a sect that split from the Plymouth Brethren in the mid-19th century. I have met children and young people who were told that they were evil and tainted and who were shut away from their community until they had “learnt to think right”. One former member told me that anyone who disagrees with the elders is pronounced evil and possessed of the devil. They handle exorcism by dismissing, shunning and excommunicating the child or young person in a practice known as “shutting up”. This group believes that children get evil spirits through contact with the outside world.
I met one young man who had been abused by an adult within his community. He reported the abuse and was then distressed and shocked when he was told immediately to get on his knees and pray for repentance and for the expulsion of the evil spirits. He subsequently left the Exclusive Brethren, but he said that it took him some years to recover from feeling ashamed and responsible for the abuse and to understand that he was not possessed by evil spirits. There is, therefore, a wider application than that commended by AFRUCA.
I reiterate the points made by my noble friend Lady Walmsley. This is not an attempt to curtail beliefs. This is solely about the protection of children, their families and those with whom they come into contact. It is time that the UK caught up with the many African countries that are way ahead of us in legislation.
Baroness Howarth of Breckland
My Lords, I am going to find myself in the difficult position of disagreeing absolutely with the two noble Baronesses. I am surprised that they have not had the context, because much of what I hear sounds like the work that we did two years ago, when I chaired the Trust for London committee that looked at child safety issues in relation to witchcraft and children accused of being possessed by evil spirits. I spent two years working with AFRUCA, the Somali community, the Victoria Climbié Foundation and others looking at the issue. During that time, we managed to disentangle what was at first thought to be an issue of belief but what, as became clear and as the two noble Baronesses made quite clear, was not about belief but about child protection.
In all the examples I have ever heard, if proper attention had been given to present child protection legal enactments, all those children should have been properly protected by the existing legislation. I agree with the noble Baronesses that if that is not so, we will need something additional—but, as has been said, all the organisations that took part in the round table, except for AFRUCA, did not see the need for a change in legislation. What they saw a need for was the education of social workers who simply do not understand the issue, and for more work to be done with these communities.
Baroness Howe of Idlicote (CB)
My Lords, I support Amendment 243 because it throws into the ring just how absurd this situation is.
Alas, we all know that this sort of action and reaction exists in this country. Female genital mutilation is exactly the same thing; it is happening, it has been happening. We turn a blind eye. We do not want to offend certain organisations and people. We are all against it, of course. The very first Minister I heard who actually understood what was going on completely denounced it, but even that led to no action being taken—you see what we are facing.
What we have heard today should make us stand up and decide in favour of some real action. The amendment has put us on the spot: we should have done so. It certainly should put the Government on the spot, if I may say so, because it is now time for some much more positive action in this respect—and I hope that they will rise to the challenge.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak very briefly in support of Amendment 246.
I cannot see any justification for excluding part-time educational institutions. Corporal punishment is corporal punishment; the impact on the child is the same, whether it takes place in a full-time or a part-time educational institution. Therefore, I hope the Minister will support the amendment—or, if not, will explain why.
Lord Storey (LD)
I will speak to Amendment 246, which I have also put my name to, and I thank my noble friend Baroness Walmsley for the detailed way in which she spoke to the amendment.
We were probably all watching Children in Need on Saturday. We saw young children in all sorts of situations. The idea that you respond to children who misbehave with corporal punishment beggars belief. I was teaching— in 1987, I think it was—when corporal punishment in schools was abolished. There were all sorts of dire warnings about what would happen. In fact, nothing happened. It made schools focus on proper child behaviour approaches.
I did not know, at that time, that the 1987 legislation did not include part-time institutions. I think that beggars belief. Any hitting of children, any corporal punishment, is child abuse. There is no other way to describe it. Like the noble Baroness, I would be interested to know, when the Minister replies, why we cannot take that next step, to make sure that corporal punishment is banned, outlawed, not allowed, in any establishment, whether part-time or otherwise.
Baroness Benjamin (LD)
My Lords, I, too, strongly support the amendments of my noble friend Lady Walmsley.
I will speak first to Amendment 243. For many years I was a school governor. One of my roles was that of child protection officer, for which I had to undergo training provided by the local council. These training sessions were attended by people across the borough, with responsibilities not just in schools but in community centres, Saturday schools and churches. At one such session I realised the worrying extent of superstition in these latter environments, involving children who, it was believed, were possessed by evil spirits.
The protection officers who also attended the training asked for better policies and advice to be put in place in establishments other than schools. They highlighted the need for training to protect children from what they believed was serious physical and mental abuse, driven by traditional superstition and sometimes religious beliefs. This abuse punished children who showed strong will or who misbehaved, perhaps because of learning difficulties, or because of conditions such as autism or dyslexia, or undiagnosed conditions which parents and families might not have been aware of or familiar with.
I also support Amendment 246. It has been brought to my attention, for some years now and from people across the country, that many children have had to endure corporal punishment and beatings in part-time educational institutions if they do not remember or learn work set for them, or achieve what is expected of them. This cruelty has to stop. We must not ignore any plea to safeguard all children, no matter where they are, what communities they live in, or where they come from. I therefore wholeheartedly support these amendments and hope that the Minister will put in place measures to protect these unfortunate children who have had to endure such awful and highly illegal abuse and cruelty.
Baroness Northover
My Lords, these amendments both relate to safeguarding specific groups of children. I will turn first to Amendment 243. While of course we believe that people should be free to express their views, I assure my noble friend Lady Walmsley and others that what is absolutely not acceptable is where expression of belief is intended to or causes harm to a child. My noble friends have made very powerful cases. Sometimes children are harmed by their parents or others. As a society we must be satisfied that we have the criminal offences to prosecute those who commit such behaviour. The Government have a key role to play, as do voluntary and other organisations working in the sector. We commend them for their work in shining a spotlight on this problem.
It is essential to raise awareness among the relevant communities and faith groups, and also among social workers and other practitioners—as the noble Baroness, Lady Howarth, said—who may come into contact with families where such accusations have been made. It is only through awareness of the potential threat posed to a child’s well-being by such accusations that families, communities and practitioners can be empowered to prevent harm from taking place and, failing that, to act with confidence in reporting concerns to the relevant authorities.
At this point I would like to look at the criminal law. My noble friend made a powerful case that she thought that these kinds of witchcraft cases were excluded. The noble Baroness, Lady Howarth, said the opposite. We have considered the amendment carefully and we do not believe that it is necessary. We agree with the noble Baroness, Lady Howarth, in this regard. This is quite simply about child protection and human rights. If we cannot include these kinds of cases, what does our child protection mean? Although existing legislation does not specifically mention communication of a belief that a child is possessed by spirits, the current offence of child neglect already includes conduct likely to cause a child unnecessary suffering or injury to health. In addition, conduct not caught by the Section 1 offence could be caught by other offences, depending on the circumstances of the case.
For example, any person, not just a child’s parents or carers, who caused physical or psychiatric harm to a child—which I think is what my noble friends Lady Walmsley and Lady Brinton are talking about—could be prosecuted for the offence of assault. Similarly, any person whose words or behaviour cause serious alarm or distress to a child, or made the child fear that violence could be used against them, could be prosecuted under Sections 4 or 4A of the Public Order Act 1986 —or, if the behaviour formed part of a course of conduct, it could constitute an offence under the Protection from Harassment Act 1997.
In addition, any person who encourages or assists such conduct could be prosecuted as a secondary participant, or on the basis of an offence under Part 2 of the Serious Crime Act 2007. For example, a religious leader who encourages or assists parents or others to abuse or neglect a child, in the belief that the child is possessed by evil spirits, could be guilty of an offence. We must ensure that our child protection policy is overarching, and includes cases such as these and all other manifestations of child abuse.
Lord Storey
I understand the point my noble friend makes about the reluctance of parents to report abuses. Does that not indicate that the law needs to be changed so that corporal punishment is not allowed in any setting? What will happen if certain settings refuse to sign the code of conduct? What sanctions have we got?
Baroness Northover
As I mentioned, this is a voluntary code. We are developing it and taking it forward. I am well aware that my noble friends may feel that that may not immediately go as far as they might wish, but I hope that they will welcome a move in the right direction. Let us see how we can take this forward. We need to make sure that a number of these organisations begin to sign up to this, because that is what will make a difference as they change the way they do things in relation to children in their care. We need to move things forward in a number of different ways. We will keep this under review and see how it is working. No doubt noble Lords will wish to probe to see how it is working out.
Baroness Walmsley
I thank the Minister for her comprehensive reply to all noble Lords who have spoken in the debate. I think we have succeeded in highlighting the issue. On Amendment 243, I particularly thank the noble Baroness, Lady Howarth, and pay tribute to all her work on this subject.
It is quite clear that within the communities that are affected by witch branding, there are differences of opinion about what would and would not be helpful. None of us is saying that working with the communities and making them aware that this is child abuse is a bad thing. Of course it is a good thing. I just do not think it is quite enough for some people.
The noble Baroness, Lady Howarth, talked about the existing law, as did the Minister. She said it is quite enough to catch people who abuse children in this way. What I am talking about is early intervention, if you like. Although once a child is physically abused, all kinds of laws have been broken and people can be charged on that basis, what I would like to get absolutely clear from the Minister is an acceptance that telling a child that they are possessed by evil spirits is child abuse. It causes the child enormous mental trauma, and you just do not know how that will affect them over many years. The Minister said a great deal about that amendment, so I will go away and read Hansard very carefully to try to find out whether there was an acceptance that simply telling a child before you lay a hand on them that they are possessed is child abuse.
The Minister mentioned a number of laws under which somebody might be charged with child abuse for doing that sort of thing, but I wonder how many cases there have been. How many people have actually been charged and imprisoned for that? Do communities and parents really understand that simply telling a child that is enough to qualify as child abuse, and that it should be reported and the child should be given special protection? Will my noble friend write and tell me what sort of guidance there is for social workers on this particular issue?
I thank the noble Baroness, Lady Lister, and my noble friend Lord Storey and others who supported Amendment 246. My difficulty with what the Minister said is that you can charge and imprison somebody only when the case is reported. One of the major problems is the reluctance of parents to come forward and tell the authorities that the child is being abused, perhaps particularly if the abuse is happening in a place of faith instruction. The Under-Secretary of State for Children and Families, Edward Timpson, has been very open to discussions with me, as the Minister said. I am quite sure that he, like me, would like to iron out this sort of practice once and for all.
However, a voluntary code of conduct just will not do. Would a code of conduct do in the comprehensive school down the road? Would it do in the primary school round the corner? No, it would not. Parliament said a long time ago that a code of conduct for teachers was not good enough in those settings. I am afraid that it is not good enough in a place of part-time education, either. I shall undoubtedly keep on badgering Ministers about this until the law is implemented. A piece of legislation was passed, but it is no use if it is not implemented. It needs implementing in order to stop this. It is not going to be a magic bullet—I know that. Neither of my amendments would be a magic bullet, but they would contribute towards moving us to a completely different situation.
I will go back to Amendment 243. The noble Baroness, Lady Howarth, talked about Africa. I am not suggesting that, just because a number of African countries have changed the law, things are all wonderful. They absolutely are not; they are horrendous. The fact is that it is very early days in those countries for the laws that have been put in place. When you have a situation where these beliefs and activities are as entrenched as they are in some of these countries—much worse than they are here—it will take years for the change in the law to have any effect. I do not accept that point.
Baroness Howarth of Breckland
That is absolutely right, but it is not the law that will change what is happening; it is having a good childcare structure with basic legislation that protects children, and having people who understand that. That is why I think the law is not particularly helpful in Nigeria; it has been passed because it suits the Government’s purposes—perhaps I can say that here—but it will not protect children. We have a much better framework of protection here. If we have lists of children from different groups, and there are other groups we could name who need specific protection, it will take attention away from the others. We have to train people to look at all these very difficult areas—FGM is there, but it is a different issue and work is being done by the Trust for London on that—and understand the detail and how we train people across the board on these issues. I felt that I should say that I understand the African situation very well indeed.
Baroness Walmsley
I thank the noble Baroness for her additional comments. I am not saying that training is not a good thing; of course it is, but we need something additional. African countries that have changed the law need a much better child protection system—closer to what we have here—but we have a pretty good child protection system and we still have not succeeded in protecting these children. We need to make it absolutely clear that this is child abuse, that it comes under the law and that it will not be tolerated. I thank noble Lords for the passionate debate that we have had and beg leave to withdraw my amendment.
Baroness Massey of Darwen
“Independence of the Children’s Commissioner
In Schedule 1 to the Children Act 2004 (Children’s Commissioner), in paragraph 1 (status) after sub-paragraph (2) insert—“(3) The Secretary of State shall not undermine the Children’s Commissioner’s independence and shall ensure that the Children’s Commissioner is under as few constraints as reasonably possible in determining—
(a) the Commissioner’s activities,(b) the Commissioner’s timetables, and(c) the Commissioner’s priorities.””
Baroness Massey of Darwen
My Lords, in moving Amendment 245, I will speak to Amendments 257 and 260 in this group and kick off what I think will be a useful discussion on the new arrangements for the Children’s Commissioner for England. I am sure that the amendments in the names of my noble friends Lady Hughes and Lady Jones and of other noble Lords will give rise to a pithy debate on this important issue.
The reforms to the role of the Children’s Commissioner for England have been welcomed by the Alliance for Reform of the Children’s Commissioner, which includes a number of significant children’s organisations. I am grateful to the department for the helpful note that we received on the Children’s Commissioner last week. I am not sure that it resolves all the issues, but hopefully we will have a useful discussion that will enable us to think through more of those issues.
As many noble Lords know, it was something of a struggle to get the then Government to agree to England having a Children’s Commissioner. Some people in this Room were instrumental in lobbying for the appointment and then contributed to the review of the Office of the Children’s Commissioner carried out by John Dunford in 2010. The review culminated in his report and recommendations, published in November of that year. One key recommendation—perhaps the key recommendation—was that there should be a focus on children’s rights in the work of the Children’s Commissioner. As a result, the new commissioner will take over the joint responsibilities of the Children’s Rights Director and the Children’s Commissioner.
The Bill can strengthen children’s rights generally. We have had, and will have in the future, debates on children’s rights in a variety of contexts. The Bill should reflect the Written Ministerial Statement of 6 December 2010, which made the commitment that the Government would give “due consideration” to the Convention on the Rights of the Child when proposing new law and policy. We still have a way to go with that. Many of John Dunford’s recommendations cannot be implemented without looking beyond the role, function and powers of the Children’s Commissioner and placing duties on public authorities and on Ministers. We will discuss that in later amendments.
The Children’s Commissioner will be a key force in safeguarding the rights and welfare of children and it is important that we get it right. There are three main issues: the appointment of the commissioner; the independence of the commissioner; and the promotion of children’s rights. The appointment of the Children’s Commissioner must be open, transparent and non-political in order for the commissioner to be sufficiently independent to champion children’s rights and to have credibility. The Children’s Commissioner is appointed by the Secretary of State but, as I understand it, is listed in the code of practice of the Commissioner for Public Appointments, so Parliament is involved in a pre-hearing process. However, the UN accreditation committee recommends that the involvement of Parliaments is provided for on the face of legislation rather than just being a political commitment. In Scotland and the Republic of Ireland, it is the national Parliament that appoints the commissioner. The degree of independence is critical in determining the success of this role. The new commissioner must be under as few constraints as possible in determining his or her activities, timetables and priorities. My amendments would see a clear legislative statement on such independence, which would bind future Governments.
In another place, MPs considered an amendment to require the Secretary of State not to interfere with the work of the Children’s Commissioner. The Government responded that the legislation already repeals provisions that currently allow the Secretary of State to direct the commissioner’s work, but that does not go as far as an explicit prohibition on interference. The Minister in another place cited the Equality and Human Rights Commission as an example of a body that is able to act independently. The legislation that set up the EHRC has similar provisions to those in my amendment. I welcome assurances that the Government will not interfere with decisions on priorities for the work of the commissioner, but such an assurance does not bind future Governments as a clear legislative statement would. The UN Committee on the Rights of the Child has made it clear that national human rights institutions for children should meet these standards.
The Minister may respond that the commissioner will have full membership of the European Network of Ombudspeople for Children. This is welcome, but it is not enough. The Children’s Commissioner should satisfy the Paris principles to the standard that the Children’s Commissioner should have the status of a national human rights institution.
Amendment 257 sets out criteria for the appointment of the Children’s Commissioner for England, stating that he or she must have adequate knowledge and experience in all matters regarding children, must involve children in decision-making and must be able to act independently of government. I am aware that this issue was discussed in another place and that the Minister stated that it would be desirable to draft the person specification at the time of appointment. That is fine so far as it goes, but setting out in legislation some objective minimum standards would be preferable to ensure that the person has the right skills and experience.
In another place, an amendment required the Secretary of State to have regard to the views of Parliament and others in appointing the Children’s Commissioner. The Minister circulated a note to the Public Bill Committee that set out how the appointment process would work. The Government indicated that it would not be convention to set out in legislation that Parliament should consider a particular matter. Amendment 260 would place a duty on the Secretary of State to have due regard to the views of any parliamentary committee that has published a view on a proposed appointment or removal from office of a Children’s Commissioner.
All these amendments would support the important principle that the Children’s Commissioner must be independent of government and must be well experienced in matters regarding the rights of the child. Who will be on the panel that interviews candidates and what are likely to be the selection criteria? I am not looking for an answer now, but I am interested. We in this House and children’s organisations will be watching the process with interest and concern. I beg to move.
Baroness Lister of Burtersett
My Lords, I rise to speak to Amendment 262, which has my name on it. I am speaking on behalf of the noble Lord, Lord Lester of Herne Hill, who is very sorry that he is unable to be here.
I want to make a point about independence in support, in particular, of my noble friend’s Amendment 245. At Second Reading, many noble Lords raised concerns about the Office of the Children’s Commissioner for England receiving sufficient funding from government to carry out its functions effectively. The Minister subsequently wrote to noble Lords acknowledging the need for sufficient resources to give effect to the reformed office’s work. He went on to say that decisions involving funding will always need to be taken in the context of the prevailing economic circumstances and competing priorities for public funding. That is understood but, whatever the economic circumstances, such decisions must not compromise the independence of the commissioner that my noble friend talked about or his ability effectively to carry out his work.
Legislation should therefore set out appropriate safeguards, such as those contained in Amendment 262. There is a danger that, unless properly resourced, the changes proposed in the draft legislation will raise expectations about the commissioner’s potential impact that the office simply cannot meet. The adequacy of the budget will determine whether the commissioner is able effectively to promote and protect children’s rights. According to the UN Committee on the Rights of the Child, it is the duty of states to make reasonable financial provision for the operation of national human rights institutions in the light of Article 4 of the convention. The mandating powers of national institutions may be meaningless or the exercise of their powers limited if the national institution does not have the means to operate effectively to discharge its powers. The Paris principles, mentioned by my noble friend, also underline the importance of ensuring that national human rights institutions have access to adequate resources. They state:
“The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding … in order to be independent of the Government and not be subject to financial control which might affect its independence”.
The Dunford review drew attention to the fact that the Children’s Commissioner had a low budget compared to children’s national human rights institutions in other jurisdictions. At the time of the review, this country was spending 24p per child on the Children’s Commissioner compared to, for example, £1.89 in Ireland —hardly a richer country than this one—£1.27 in New Zealand and £3.74 in Northern Ireland. UNICEF undertook a global study of independent human rights institutions for children. It underlined that independence is the defining feature of such institutions and that sufficient and sustained financial resources are key to that independence.
On the issue of independence, I wish to raise another matter, which has been of concern to the Joint Committee on Human Rights, of which I am a member. In its report on the draft clauses preceding the Bill, the JCHR accepted the need for financial control of and public accountability for the public money spent by the Children’s Commissioner but was concerned about whether the degree of financial control exerted by the Government through the standard NDPB framework agreement was compatible with the requirement in the Paris principles that national human rights institutions should not be subject to financial control that might affect their independence. It therefore called, in December 2012, for the proposed new framework agreement between the OCC and DfE to be made available in draft as soon as possible so that it could be scrutinised for compatibility with the Paris principles requirement of effective independence from executive control.
The Government in their response promised to review the framework agreement in light of the committee’s comments and to make a copy of the revised document available for scrutiny. No new framework agreement had been published by the time the Bill was introduced, however. In the JCHR’s report on the Bill in June this year, it recommended that all the changes that had been made to the framework agreement between the Equality and Human Rights Commission and DCMS in order to safeguard the EHRC’s accreditation as an “A” status national human rights institution should also be made to the Children’s Commissioner’s framework agreement and it again asked for the revised framework agreement to be made available for scrutiny before the Bill reached Committee in the Lords.
With Committee stage fast approaching, but still no revised framework agreement published, the JCHR wrote again to the Minister on 30 October, asking the Government to make every effort to arrive at a revised agreement with the Children’s Commissioner and to make it available to Parliament before today’s debate on the proposed amendments to the Bill concerning the commissioner’s independence. Notwithstanding that request—or requests, in the plural—the Government have still not published a revised agreement. Towards the end of last week, they published and circulated a note summarising the main changes that will need to be made to the framework agreement when the Bill comes into force. These include a number of exemptions from efficiency controls that have been made in the EHRC’s revised framework agreement, which the Government say that they will “seek to replicate” in the Children’s Commissioner’s framework agreement.
The Government’s stated willingness to replicate the changes made to the EHRC’s framework agreement is welcome, but it is most regrettable that the revised agreement itself is still not available. As so often, the devil is in the detail. It will not be possible for Parliament to be sure that the framework agreement is compatible with the Paris principles until it has seen the text. It is not clear, for example, how the requirement of government approval of the commissioner’s marketing and advertising plan is compatible with independence when, as I understand it, efficiency controls, which must be satisfied for the plan to be approved, require such expenditure to be essential for the Government’s objectives, not the commissioner’s.
The same issue was resolved with the EHRC. I hope that it can be so with the Office of the Children’s Commissioner. Will the Minister give noble Lords his reassurance that he will discuss the detail of the framework agreement with the Office of the Children’s Commissioner as soon as possible and make a draft of the revised agreement available before Report, so that noble Lords can be satisfied on this crucial question of independence from inappropriate executive control?
Lord Ramsbotham (CB)
My Lords, I support Amendment 245 in particular. In doing so, I hope that the Committee will allow me to reflect on the comparisons between the commissioner and my own former position as Her Majesty’s Chief Inspector of Prisons.
Unlike the other inspectors of public sector organisations, the Chief Inspector of Prisons deliberately does not come from that service, in order to ensure complete objectivity and independence. The Chief Inspector of Constabulary is a policeman; the Chief Inspector of Probation has been a probation person, and so on. What was also interesting was that I was a Crown servant, not a civil servant, which gave me another degree of independence. I would like to see the Children’s Commissioner given exactly the same status in order to emphasise that point. It does not in any way lessen your responsibilities and it certainly does not lessen your access.
It is also important to realise that, again in parallel with the Chief Inspector of Prisons, you are the quality assurer. You are there to assure the quality of the delivery of children’s rights in this particular case. Quality assurance carries with it a certain amount of responsibility but it also carries a requirement to have sufficient resources to be able to do that. I have to say that, after talking to the Children’s Commissioner and looking at her responsibilities, I do not think that she is adequately resourced to be able to carry out effectively the role of quality assurer of children’s rights.
I have just come from taking part in the Anti-Social Behaviour, Crime and Policing Bill, where we are talking about injunctions for children aged 10 and upwards, in addition to the anti-social behaviour orders for children aged 10 and upwards, and the importance of ensuring that there is no postcode lottery in that and that they are overseen fairly and consistently by local government around the country. Who is going to do that? It seems to me that the one person who is, and will have the responsibility to do so, is the Children’s Commissioner. I do not see why it could not be added to his or her responsibilities. Having seen some of the excellent reports that have come out recently from the Office of the Children’s Commissioner—in particular the one about the effects of acquired brain injury and neurodevelopment, which I think is a model; not to mention the very effective report on the work of mother and baby units in women’s prisons—I think it is very important that someone should look in greater detail than I think the Dunford report did at some of the peripherals that come with the responsibility for quality assurance.
I welcome the other amendments in this group, which seek to do that, but I am just a little nervous about the Children’s Commissioner having to report to too many separate committees in the other place. Yes, of course, human rights are involved but in dealing with children we are dealing not just with education but with health, justice and the Department for Work and Pensions because of various payments; we are also dealing with the Department for Communities and Local Government. It worries me that we should be specifying two particular committees out of many. I do not think we want to complicate the chain of reporting for the quality assurer on children’s rights. We ought to tease this out in this Committee, and possibly make recommendations about the clear chain that we see through to the Minister, to whom the commissioner will be reporting.
I am slightly concerned about the suggestion that the reporting annually to Parliament should not go through a Minister. The reason for that is that when the prisons inspectorate was set up there was a requirement for the Home Secretary to publish a reply to every list of recommendations made by the chief inspector. For the Children’s Commissioner to be properly effective, the Minister must reply so that one can see what is going to be done to maintain the momentum of improvements and observations that the commissioner makes.
The Countess of Mar
I support the noble Lord, Lord Ramsbotham, in his contention. We have a Minister for Children, and the Children’s Commissioner should report to that Minister.
Baroness Walmsley
My Lords, I will not speak in detail about the amendments but I should like to express my general support for anything that strengthens the independence of the Children’s Commissioner. The commissioner is not completely independent. He or she will have their powers very much diluted, which would be a pity because the Bill considerably improves the powers and duties of the commissioner. I very much welcome that.
Of course, it is also important that the commissioner has appropriate resources with which to carry out those improved powers and duties. The noble Baroness, Lady Lister, has clearly shown the link between independence and money. If the Government are controlling exactly how the commissioner spends his or her money, where is the independence? Her amendment should therefore be carefully considered.
Baroness Howe of Idlicote
My Lords, I will be reasonably brief on the three amendments to which I have added my name, although all the amendments in the group are admirable. I also very much thank the Minister for his helpful letter and proposed amendment. There has been little time to take it in and I look forward even more to what he will say at the end of the debate.
As my noble friend Lady Massey said—and the noble Baroness, Lady Lister, expanded forcefully on—the UN Committee on the Rights of the Child has made it clear that national human rights institutions for children, including children’s commissioners, should be established in compliance with the Paris principles, which were adopted more than 20 years ago by the UN General Assembly. These minimum standards provide guidance for the establishment, competence, responsibilities and composition—including pluralism, independence, methods of operation and quasi-judicial activities—of such national bodies. These recommendations underpin the amendments that I am supporting. The Committee on the Rights of the Child has said:
“It is essential that institutions remain entirely free to set their own agenda and determine their own activities”.
It has also stated:
“The appointment process for ombudspersons for children should be open, transparent and appropriate”.
With regards to the commissioner’s funding, the Bill currently affords the Secretary of State absolute discretion in deciding the amount, timing and conditions. Currently, too, this has the potential significantly to undermine the commissioner’s independence. The Committee on the Rights of the Child is clear:
“In order to ensure their independence and effective functioning, NHRIs must have adequate infrastructure, funding … staff, premises, and freedom from forms of financial control that might affect their independence”.
Also, as Amendment 257 states, the appointment of a commissioner has to be seriously considered from all sorts of perspectives. I have met the commissioner whom we appointed and, if I may say so, it is an extremely good appointment.
However, what is said in Amendment 257 is equally important:
“The Secretary of State shall appoint an individual only if the Secretary of State reasonably considers the individual”—
and this is the bit that I want to stress—
“has adequate experience and knowledge relating to children’s rights, including the involvement of children in decision-making; and … is able and willing to act independently of Government”.
The active involvement of children in decision-making is the area that I want to stress, because that is essential in today’s world and I hope that the Minister will be able to reassure me on that point, quite apart from any others.
Baroness Butler-Sloss (CB)
My Lords, I have also put my name to three amendments and support the others in this group. It is absolutely crucial that the appointment of the Children’s Commissioner is taken very seriously, particularly that it should be somebody who can be genuinely independent of Government. May I suggest—perhaps unpopularly to any Government —that it requires someone who is prepared to be a thorn in the flesh. We do not want anyone who would be a yes-man or a yes-woman. Splendidly, the present Children’s Commissioner is certainly not that. I know her well and I have huge respect for her, but she does not have enough funding to do what she has to do and she certainly cannot do anything else.
If I may relay a short anecdote: the noble Lord, Lord McColl of Dulwich, and I managed to be persuaded by the Government not to pursue an amendment in an earlier Bill on getting a children’s legal advocate for trafficked children, on the basis that the Children’s Commissioner would investigate what happened to a child who was identified as trafficked from the moment of identification to the point at which the child would be able to be settled, one way or another. That promise was made outside the Chamber. The Children’s Commissioner then said, “I cannot do this job. I do not have the money”. The noble Lord, Lord McColl, and I went to see her and discussed it with her. There was, with the Children’s Society and the Refugee Council, a shortened, abbreviated and, despite all their efforts, inadequate investigation, because it did not do what the Children’s Commissioner would have done, which was to take it from day one of identification through to the moment when the child would be settled. They did their best with very limited funding.
This was absolutely the sort of thing that should have been done by the Children’s Commissioner and the Children’s Commissioner would like to have done it, but the resources were not there. This is just one example. I know we lack money and that this is difficult, but children matter—they absolutely matter—and the Children’s Commissioner matters. He or she must be independent and properly appointed as somebody who really knows what he or she is doing. As the noble Baroness, Lady Howe, has just said, the Children’s Commissioner must be able to consult the children and bring their voice into decision-making—as this commissioner has done in an excellent way. For those reasons, I strongly support these amendments.
Baroness Hughes of Stretford
My Lords, we have heard some very powerful arguments in favour of strengthening the process of appointment and the independence of the commissioner. I am not going to rehearse all the arguments that have been put very ably by my noble friend Lady Massey and everybody in the Committee. Now that we are several years on and there has been a review of the role of the Children’s Commissioner, it is right that we take this opportunity to see how that role can be strengthened. It is the right time to do this based on our experience and the outcomes of that review. I support the amendments in this group in general and will speak to Amendments 255A, 258, 259 and 261 in my name and that of my noble friend Lady Jones.
Amendments 258, 259 and 261 reflect other amendments in this group, by stipulating the involvement of various parliamentarians and requiring the Secretary of State to consider their views on the process and the detail of appointments, or to have their consent to appoint. All those issues reflect the concern of the committee to make sure that there is a wide involvement of different groups, so that we get it right.
Viscount Eccles (Con)
My Lords, I will be leading on another group of amendments and will try not to duplicate anything, but it is very urgent that the Government clarify what they believe the position of the Children’s Commissioner to have been and what they believe it is going to be. In principle, nothing is changed by the Bill in front of us—there is an extension of words but nothing is changed. The Children’s Commissioner is a corporation sole, which is quite a strange type of institution and not necessarily much beloved by the Treasury, but there you are, that is what the Children’s Commissioner is. The Children’s Commissioner has, I think, 27 staff and a budget of just over £2 million, or under £2.5 million. The office is one-tenth the size of the Equality and Human Rights Commission, which has just been reduced in size by quite a large amount but remains 10 times the size of the Office of the Children’s Commissioner. That is a nationally accredited human rights institution. There is a question as to whether we want two, which I will raise in more detail in the next group of amendments.
The fact of the matter is that the Children’s Commissioner has been really rather successful. It is a thorn in the flesh, to quote the noble and learned Baroness, Lady Butler-Sloss. It has freewheeled pretty well on a very small platform and produced some very interesting work. It can produce only recommendations: it has no power to make anybody do anything except write back to it under the 2004 Act to tell it, “Thank you for telling us what you told us and this is what we are going to do about it”. It has no executive authority at all. Do the Government intend that it should have any executive authority? I cannot see any in the Bill. It seems to me that some of the comment on what might or might not happen has got rather ahead of the Government’s game, and we are looking for clarity from the Government as to what they intend and what they expect.
The noble Baroness, Lady Lister, raised a very interesting point about raising expectations and then disappointing them. That is one of the reasons why the electorate are being turned off election after election: the Westminster system has a brilliant way of raising expectations and then disappointing them. I hope that this will not be another example, because it is not a good idea that it should be. There are some very serious questions here about resources, about what the role is and about what the Government expect of the Children’s Commissioner. I do not think that we have had answers as yet to those questions. I hope to hear them from my noble friend on the Front Bench.
Lord Nash
My Lords, Amendments 245, 255A and 257 through to 262 deal with issues related to the Children’s Commissioner’s independence. The independence of the commissioner is an important point of principle—and it is helpful to have this discussion, so that I may provide noble Lords with some assurances. I am grateful to all noble Lords involved in raising these issues, especially the noble Baroness, Lady Massey, my noble friend Lord Lester and the noble Baroness, Lady Lister, for speaking on his behalf—all of whom I know have long been passionate champions in relation to children’s rights.
John Dunford identified that a “perceived” lack of independence from government had affected the Children’s Commissioner’s credibility and, following his review, he made various recommendations to counter those perceptions. The Government have acted on his recommendations in full. We have removed the provisions that allowed the Secretary of State to direct the commissioner and the requirement for the commissioner to consult the Secretary of State. We are changing the terms of appointment to a single, six-year term, to remove the potential for political influence through the reappointment process. We have also made provision for direct contact between the commissioner and Parliament, including the laying of the annual report directly before Parliament and the ability of the commissioner to raise matters directly with Parliament.
I thank noble Lords who have spoken to Amendment 245 and give assurances that the Bill already provides that the commissioner has complete freedom in deciding his or her activities, timetables and priorities; under the primary function, it is made explicit that the commissioner has a free hand to investigate any matter relating to the rights or interests of children. Having carried out an investigation, the commissioner is free to make any recommendation that he or she deems appropriate.
It is true that as a non-departmental public body, the OCC is subject to some controls in relation to its spending. These controls apply to all NDPBs and are designed to ensure value for money for the taxpayer and to avoid unnecessary public spending at a time when the Government are seeking to reduce the budget deficit. Extremely important though the role of Children’s Commissioner is, I do not think that she should be completely exempt from these controls. However, where the commissioner has sought an exemption or relaxation from these arrangements and has demonstrated that they could compromise his or her independence, those requests have been granted. This arrangement seems to be working well and we see no need to change it.
The Government agree that the Children’s Commissioner should be accountable to Parliament through his or her annual report and are therefore grateful that the Joint Committee on Human Rights has made a commitment to hold an annual evidence session to scrutinise the commissioner’s work. I share the noble Lord’s concerns about overburdening the commissioner with reports to parliamentary committees but it is important for his or her independence that the commissioner is not accountable to the Secretary of State or another Minister. That is why we have welcomed the offer from the JCHR to hold an annual debate. This will be an opportunity for Parliament to ask questions and raise issues with the commissioner and, in turn, the committee will be able to raise matters with all the relevant Secretaries of State.
Amendments 257, 258, 259, 260 and 261 in this group concern the appointment of the commissioner, any dismissal of the commissioner and the involvement of Parliament in these processes. The role of the Children’s Commissioner is an important one and I fully accept that the appointment and dismissal procedures need to be fair and transparent. However, I do not think that it is necessary or appropriate to define the conditions for either process further than is already done in the legislation.
We have provided a note in the other place on how the appointment process is expected to work. That note explains that the appointment of the commissioner would be in accordance with the Office of the Commissioner for Public Appointments’ code of practice. This ensures that candidates are appointed on merit, following a fair and open recruitment process.
The note also clarifies that children will be involved in the recruitment process and that we would expect Parliament, through one of its committees, to have a role in agreeing the job description and carrying out a pre-appointment hearing. However, the OCPA code of practice is clear that the parliamentary committee undertaking the pre-appointment hearing should not have a right of veto on the appointment. To pick up the point made by the noble Baroness, Lady Jones, about the Secretary of State explaining publicly if he disagrees with the Select Committee, I do not think it appropriate for such a public debate to take place about the suitability of candidates.
In addition, I do not consider that legislation is the right place to set out the personal qualities needed for the role. These will be determined by the panel that is established to lead the appointment process, which is chaired by an independent assessor appointed by OCPA, and subject to quality assurance by Parliament. I hope that this provides the necessary assurances.
On dismissal, the existing provisions represent a high threshold. A dismissal could potentially be subject to judicial review and overturned if it was found to have been made inappropriately. The courts provide ample protection against the commissioner being dismissed on arbitrary grounds. I would expect the Secretary of State to want to consult the chair of a relevant parliamentary committee before taking such a drastic action. However, there may well be reasons why such matters would need to be treated in confidence. I hope that noble Lords are reassured that both the appointments and dismissal processes currently in place are fair and transparent without the need for further prescription in legislation.
Baroness Lister of Burtersett
I am sorry to interrupt but perhaps the Minister can say what he considers to be the appropriate time. I suggest that it is before Report.
Baroness Lister of Burtersett
I am sorry but the point is that the devil is in the detail, as I said, and Report, or possibly Third Reading, would be the last opportunity for parliamentarians to comment in a way that might affect the outcome. After Royal Assent seems rather late.
Lord Nash
We will take this away and consider it further. As regards the point made by the noble Baroness, Lady Hughes, on accountability and to whom it should be, our view is that the commissioner should be wholly independent as regards his or her views and priorities from both government and Parliament. However, I accept that Parliament should be able to scrutinise what the commissioner does and have an opportunity to debate issues that he has raised.
I hope that my responses on these important points provide assurances to noble Lords and I urge the noble Baroness to withdraw her amendment.
Baroness Massey of Darwen
My Lords, I thank the Minister for that response. This has been an incredibly perceptive debate and noble Lords have provided a lot of expertise. My noble friend Lady Hughes said at the beginning of her speech that it is the right time to review the role of the Office of the Children’s Commissioner. I agree with that. We have experience of two commissioners, both of whom have put the voice of the child at the centre of activity and have done significant work with vulnerable children. The Minister listed some things that the Children’s Commissioner could do. However, as many noble Lords have pointed out, funding is an issue, and we need to look at that again.
Others have mentioned the scope of the commissioner’s remit, accountability, quality assurance and the JCHR. For me two key issues have come out of our discussions today to which I certainly want answers before Report. One is that we absolutely need the framework agreement before we get to Report. In fact, we need it some time in advance of getting to Report; otherwise, how can we debate this seriously? How can we put down sensible amendments if we do not have the detail of that framework agreement? Stemming from that, I need to think about—as I am sure others do—what should go in this legislation; obviously not in too much detail but issues have come up today that certainly need more consideration when we think about what goes in the legislation.
I hope that the issue of the framework agreement will be resolved long before Report. That will influence what we think should go in the legislation. In the mean time, I beg leave to withdraw the amendment.
Viscount Eccles
Viscount Eccles
My Lords, I would like to continue to probe the question: what is the Government’s true opinion of the Children’s Commissioner as a corporation sole? I hope that my Government are not exclusively depending on John Dunford. His report was published three years ago. That is a third of the life of the Office of the Children’s Commissioner so I suppose that something must have happened over the past three years; I do not think that things will be exactly the same and I would like to know how they have developed.
On another occasion, maybe on Report, I will want to have a longer discussion about independence. I will confine myself to saying that arm’s-length relationships between public bodies and the Government are twisted arm’s-length relationships, and if you are funded by public money there is no such thing as independence in the true meaning of the word. If you consider the American War of Independence, which resulted in the United States of America, you can completely forget that as a meaning of the word when it is applied to a public body.
Three years on, I will just make the comment that John Dunford did his report on his own, in five months; he is a very able man. He did not have any peer group review; I think it was mentioned earlier that sometimes it is a good thing to have some peer group review. I hope that the Government are not just taking cover behind John Dunford because by now they should have an opinion of their own.
I have two background thoughts when I raise these issues. One is the size of the superstructure that we have built in recent years on top of what is, to me, the front line, which has been very frequently mentioned during our debates. This is a very big superstructure, starting with the United Nations—190 signatories, not including the United States of America; some 70 of them have a national human rights institution. The expert committee in Geneva gets a report every five years. We last sent ours in 2008. The next one is going in 2014, which seems to be six years, not five, and there may be some message in that. That draft report is 200 pages long. It is sponsored by the department present here today, which has to get evidence from the whole of the rest of government, as the noble Lord, Lord Ramsbotham, mentioned.
My second amendment is also a probing amendment. I just wanted to remind myself that everybody is concerned with the human rights of children. There is no exception—apart from, perhaps, one or two people living on a beach in western Scotland who have completely dropped out into a hut. However, I do not think that there is anybody who is not concerned. There are parents and there are teachers; many people have two roles.
If one third of children under 18 are not represented by an adult, by whom are they going to be represented? We have to remember the huge scope of the subject we are discussing, and sometimes a degree of unreality comes into it. For example, the Explanatory Notes say that this Bill is “strengthening” the Children’s Commissioner. In what way is it strengthening the Children’s Commissioner? It does not appear from my noble friend’s answer to the previous debate that the commissioner is going to get any more money. They are given more duties; they are even given a direction by Parliament to look into advocacy, while the rest of the Explanatory Notes say that we are not going to tell them what to do, we are going to leave them entirely free to decide what to do for themselves—but apparently not in the matter of advocacy.
The Children’s Commissioner also has a duty in the Bill to,
“consider the potential effect on the rights of children of government policy proposals and government proposals for legislation”.
You could employ 27 people on doing only that and they would have plenty to do. The Government need to be much clearer with us on what they mean by strengthening. If you add to the duties of an organisation but do not add to its resources, you could argue that you weaken it.
Where has the Children’s Commissioner stood in relation to the size of the task? I think that the commissioners have done rather well. They have done research, co-operated with a lot of other bodies, produced interesting reports, been a thorn in the flesh and rather successful lobbyists. Whom have they lobbied? They have lobbied the Government in general. You can argue about whether you want a lobbyist 100% funded by public money, or whether you would rather it was Amnesty International or some other rather looser and less controlled body that you want to do your lobbying, but it seems to have worked rather well.
The question I end with is: what is going to change? How is this Bill going to change the capability of the Children’s Commissioner? Or is it going to continue with business as usual? I really would like an answer to that question. I beg to move.
Baroness Walmsley
My Lords, I have some amendments in this group, but before I speak to them, I will say a word about the amendment of the noble Viscount, Lord Eccles. I do not support it because it would take out what is the most significant improvement in the powers and duties of the Children’s Commissioner: namely, the duty to promote and protect the rights of children in England. This is making our commissioner a rights-based commissioner for the first time and I very much welcome that. I hope that the Bill makes a difference and that the Government are not, in the words of the noble Viscount, Lord Eccles, “playing a game”.
I will speak to Amendments 250, 254, 255 and 256 in this group. Before I do, I will mention my support for Amendment 252 on the UN Convention on the Rights of the Child, tabled by the noble Baroness, Lady Lister, and Amendment 266A about a duty on public bodies to respect children’s rights and give proper regard to their views, in the name of the noble Baroness, Lady Massey. However, in order to save the Committee’s time, I will leave both noble Baronesses to speak for me on those amendments.
Before I go into the detail of my amendments, I will pay tribute to the coalition Government and the current Ministers, and particularly to the former Children’s Minister, my colleague Sarah Teather MP, for bringing the Children’s Commissioner for England much closer to the Paris principles and making the office a much better national human rights institution, as it should have been from the start.
Baroness Lister of Burtersett
My Lords, I will speak to Amendment 252 in a group of amendments that are largely designed to strengthen the role of the Office of the Children’s Commissioner for England. Like the noble Baroness, Lady Walmsley, whom I thank for her support on this amendment, my starting point is to applaud the ways in which the Bill already strengthens the role of the Children’s Commissioner, in particular through the incorporation of an explicit children’s rights-based remit. I therefore have to part company with the noble Viscount, Lord Eccles, on that—although I very much agree with him on his point about resources.
Viscount Eccles
Nothing in the 2004 Act would prevent the commissioner saying anything that she wants to say, or investigating anything that she wants to investigate, in the area of rights. My point about it being stated in the Bill is that it is a move towards creating another national human rights institution. The question to the Government is: is that what they are going to do? If they are not, there is nothing wrong with the 2004 Act.
Baroness Lister of Burtersett
But because it was not an explicitly children’s rights-based institution, it did not have the status internationally that other children’s commissioners have. So this is a step forward and I am glad to be able to support the Government. In fact, I was one of those who criticised my own Government for failing to write in an explicit children’s rights-based remit.
The Joint Committee on Human Rights, of which I am a member, welcomed the reforms as,
“constituting a significant human rights enhancing measure”.
However, we believe that the reforms do not go quite far enough and therefore proposed this amendment. The intention is that the Bill should expressly define the rights of children in England to include the rights in the UN Convention on the Rights of the Child for the purposes of defining the commissioner’s primary function. At present, the Bill simply requires the commissioner to “have regard” to these rights. I am sure noble Lords will agree that that is a much weaker formulation.
The recommendation that the commissioner’s primary purpose should be defined explicitly with reference to the UN convention should not be construed as just the icing on the cake, for it is about the ingredients of the cake itself. This was recognised in the Dunford report commissioned by the incoming coalition Government. It recommended that the new role of the Children’s Commissioner should include,
“promoting and protecting the rights of children under the UNCRC”,
so I am afraid that the Minister was not totally accurate when he said that the Government had taken on board all the recommendations of the Dunford report.
The UNICEF global study of independent human rights institutions for children underlined that:
“There is one non-negotiable attribute of all independent human rights institutions for children: a mandate rooted in the Convention on the Rights of the Child”.
However, the JCHR’s “negotiations” or dialogue with the Government on just such a mandate came to naught and the Bill retains this weak requirement simply to have regard to the convention. The Government’s original objection that the UNCRC has not been directly incorporated into UK law was met by our carefully worded amendment, which does not imply incorporation, as the Government now acknowledge. They then fell back on two arguments. The first was that,
“the UNCRC contains a broad mix of rights and aspirations, rather than a more classic formulation of rights such as those in the ECHR”.
Secondly, they argued that some UNCRC articles are broader than children’s rights as such and include, for example, parents’ rights or the state’s responsibility to create an environment in which children’s rights can be realised.
The committee was not persuaded by those arguments and responded:
“It is a matter of common consensus that the UNCRC contains some very important children’s rights. The fact that some of its provisions are couched in aspirational terms, or impose responsibilities and obligations on the State, does not detract from this fact”.
Indeed, these aspects of the convention are surely true of human rights treaties generally and have not deterred other states from incorporating the full convention into domestic law. In any event, the amendment is carefully worded with this possible objection in mind: it defines the rights of children to include, not the UNCRC itself, but “the rights in” the UNCRC.
As Carolyne Willow, a long-standing children’s rights expert, has argued, the suggestion that the reference to parents,
“somehow diminishes children’s rights, is muddled. Article 18(2) of the treaty sets out the basis for states supporting parents—in order to guarantee and promote the rights of children. This is no different from recognising and assisting carers in order to uphold the rights of disabled people, or guaranteeing support to adoptive parents as a means of securing the child’s right to a family life”.
The JCHR believes that the Children’s Commissioner,
“should be entrusted to interpret the UNCRC and to take a sensible and properly advised approach about the children’s rights that it protects”.
The Government’s refusal to accept our recommendation suggests that they do not trust the commissioner to do so. The arguments put up by the Government are weak and leave me puzzled as to why they are so resistant to embedding the commissioner’s welcome children’s rights-based remit in what the Alliance for Reform of the Children’s Commissioner describes as, “the authoritative international legal statute for children’s human rights”. I hope that the Minister will take this away and think again.
Baroness Massey of Darwen
My Lords, in this varied and lengthy group, I want to focus on Amendment 266A, although I support others to which my name is attached. The amendment states:
“Any person whose functions are of a public nature must in the exercise of his or her functions … respect, protect and fulfil children’s rights; and … seek … the views of children in matters affecting them”.
Here, it harks back to the Children’s Commissioner not having sole responsibility for children’s rights. Others have expressed powerful convictions that all children have rights, even though the rights of vulnerable children—for example, asylum seekers, trafficked children or those in custody—are sometimes neglected. What really concerns me here is that we seem to fail to grasp the issue of listening to children and seeking their contribution to improving systems which should work for them. I cannot understand why. Involving children in these matters which affect them has at least two functions: it not only helps children feel engaged and more likely to respond positively but helps make systems and structures better. It makes for better decisions about children. As I have said before, we have become better at listening to children and young people, but it is inconsistent. The noble Lord, Lord Ramsbotham, will know the answer to this much better than I do, but I wonder how much young people in custody are consulted. From all I hear, not very much.
Concern for child rights and consultation with children work in practice. I mentioned earlier the Every Child Matters report. Schools were at the centre of that and I want to give an example of how schools can improve school life and achievement by listening to, respecting and valuing the contribution of children. UNICEF’s Rights Respecting Schools programme is a resounding success according to an independent evaluation. It encourages child-driven polices on behaviour and school activities. At its heart are school councils and classroom discussions on rights and responsibilities.
It seems to me that any organisational system functions better if those within the system are consulted and involved. Children are totally capable of having a view about what is best for them, and many organisations—not only schools but children’s services, health services and youth clubs—do consult children and are the better for it. The state has an opportunity to task other bodies with the job of promoting and protecting children’s rights. A duty on public authorities to give due regard to children’s rights in their decision-making would ensure that all areas of government are aware of their obligations towards children.
Baroness Jones of Whitchurch
My Lords, I shall speak to Amendment 251. It would allow the Children’s Commissioner to conduct an investigation into the case of an individual child in specific circumstances which enable the commissioner to fulfil his or her primary purpose, which is defined as his or her strategic role. This principle, which underpins the existence of the Office of the Children’s Commissioner, is accepted by everyone. This amendment seeks not to undermine it, but to aid the Children’s Commissioner in its pursuit.
We believe that the current proposed wording serves to undermine the ability of the commissioner to work strategically. Five years ago, Meltem Avcil, a 14 year-old girl, slashed her wrists when her bail application was turned down when she was detained at Yarl’s Wood detention centre. After self-harming, the child was handcuffed to a hospital bed. The then Children’s Commissioner for England, Al Aynsley-Green, investigated her case of self-harm. His report concluded that detaining the child for 80 days had amounted to inhuman treatment and recommended public policy changes to avoid such events occurring in the future. This is just one example of where the ability to investigate an individual case has advanced the strategic work of the Children’s Commissioner.
Another example is from Wales, where an investigation into specific cases of school exclusion led to the discovery that children were routinely informally excluded for prolonged periods in a manner that was against their interests. When this was debated in the Commons, the Minister, Edward Timpson, responded that the injunction on such investigations was to prevent the commissioner,
“becoming bogged down in individual casework at the expense of the OCC’s strategic role”.
That is an unsatisfactory response; it is clear that specific investigations can serve to aid a strategic approach.
Our amendment does not allow the commissioner carte blanche to engage in investigations or, indeed, make the commissioner feel under an obligation to investigate all individual cases which he or she receives. Instead, it is highly limiting and restricts investigations to when it is judged that they can genuinely advance the commissioner’s strategic role. Furthermore, the wording of our amendment also serves as a rebuttal to the suggestion that it would create a presumption that casework was part of the commissioner’s role and that it offered an alternate point of appeal to existing channels.
There also appears to be an element of confusion among Ministers. Mr Timpson said that it is “simply not possible” for the commissioner to investigate individual cases,
“without the commissioner’s strategic role being compromised”.
Nevertheless, in further discussion, he proceeded to point to other provisions in the Bill which allow the commissioner to,
“initiate a formal inquiry into the case of an individual child where he or she considers that it raises issues of public policy that are relevant to the other children under the separate inquiry function”.—[Official Report, Commons, Children and Families Bill Committee, 23/4/13; cols. 681-82.]
That is an apparent tacit admission that it is possible for the commissioner to investigate individual cases without compromising his strategic role. Unfortunately, the Bill makes it clear that that simply will not be possible in future. All of us accept the fundamental importance of the strategic role of the Office of the Children’s Commissioner yet it also seems obvious that this can be properly pursued only if the commissioner has the freedom fully to investigate individual cases in very specific instances. Our amendment seeks to find the appropriate wording to ensure that this can occur. I hope that the Minister will feel able to support our proposal, if not the exact wording of our amendment.
Viscount Eccles
My Lords, I have a third amendment in this group, to Schedule 6 and on a very different subject. It is proposed that the Children’s Rights Director, who is part of Ofsted, is to be transferred to the Office of the Children’s Commissioner, taking the duties and powers of the office with him. Is that already happening? If it is, will the resources that are transferred balance with the duties and the costs of carrying out those duties in such a way as to make no material difference to the Office of the Children’s Commissioner in respect of resources?
Lord Nash
My Lords, I shall speak to Amendments 249A to 256, 266A and 266AZZA.
Amendment 249A was tabled by my noble friend Lord Eccles, who asked how we are strengthening the commissioner’s function. We believe that amending the commissioner’s primary function to one of promoting and protecting children’s rights is, as my noble friend Lady Walmsley and the noble Baroness, Lady Lister, said, an important step forward in establishing the OCC as a credible organisation that meets the key requirements expected of human rights institutions. There is much support for our proposals. For example, in its report following pre-legislative scrutiny, the Joint Committee on Human Rights described the proposed new remit of the commissioner as,
“a significant strengthening of the Commissioner’s mandate, and is an important step in the transformation of the office into a fully fledged human rights institution for children”.
The way in which the primary function is described matters. The lack of a statutory rights-based remit is the main reason why the Children’s Commissioner has, to date, only been accepted as an associate, rather than full, member of the European Network of Commissioners.
I turn now to Amendment 250, which was tabled by my noble friend Lady Walmsley, to whom I pay tribute for her effective and long-standing work on children’s rights. I agree with her that part of the commissioner’s role should be to raise awareness of children’s rights. However, in determining what activities to set out in the Bill, our approach has been to avoid including activities that are already implicit within the commissioner’s primary function, and we believe that raising public awareness of children’s rights is an inherent part of the commissioner’s new primary function of promoting and protecting children’s rights.
The commissioner can intervene in legal cases where he or she has a sufficient interest in the matter before the courts. Indeed, the commissioner has used her current powers to intervene in a number of legal cases in the past. However, the effect of the proposed amendment could be to create an expectation that the commissioner would respond to every request to intervene in legal matters that he or she receives. I do not believe that this would be helpful. In his review, John Dunford gave an example of another commissioner who had instigated legal proceedings to take a particular children’s rights issue to the courts which were unsuccessful and costly. This is not something we would want to encourage.
Turning to Amendment 251, I assure noble Lords that there is nothing in the Bill that prevents the commissioner talking to individual children or using evidence drawn from the cases of individual children to inform the primary function. In fact, it is hard to imagine that the commissioner could investigate a matter strategically without using evidence from individual cases to support his or her findings.
As noble Lords will be aware, where the commissioner makes recommendations under the primary function, he or she can require a written response setting out how those recommendations will be addressed. Amendment 253, tabled by the noble Lord, Lord Touhig, seeks to make similar provision in respect of the separate advice and assistance function. This role is currently provided by the Children’s Rights Director to the children within his remit and is intended to be an informal, light-touch service. It may involve as little as a telephone call to the DCS in a local authority, and the amendment therefore runs the risk of overformalising what is working well as an informal process.
I fully recognise that other groups of children are vulnerable and in need of extra support, including those mentioned in Amendment 256. However, I do not believe that this means that we should include them in the definition set out in Clause 86—the purpose of which is to provide a definition of the children who currently fall within the Children’s Rights Director’s remit—so that other provisions in the Bill can be applied specifically to that group of children. Clause 86 is not an attempt to define vulnerable children for the purposes of the commissioner’s primary function and there is therefore no reason to include other groups of vulnerable children within it, as the Bill makes clear through the provision in Clause 79. When determining how best to discharge the primary function, the commissioner must have particular regard to,
“other groups of children who the Commissioner considers to be at particular risk of having their rights infringed”.
I am grateful to the noble Baroness, Lady Lister, for highlighting in Amendment 252 the importance of the UNCRC to the commissioner’s primary function. Our view is that, in exercising his or her primary function, the commissioner would be expected to take account of all children’s rights that are relevant. This would include the UNCRC and its optional protocols that the UK has ratified, rights set out in other international treaties and rights within domestic law. However, we also recognise that the UNCRC is central to the children’s rights arena and so make an explicit reference to the UNCRC in the Bill. We believe that this represents the best formulation.
Turning to Amendment 252A, it is our clear intention that the commissioner’s work should be informed by the views and interests of children. As well as the overarching requirement to involve children as set out in new Section 2B(1) of the Children Act, the Bill includes requirements on the commissioner to: make children aware of his or her role and how they can contact him or her; consult children on the commissioner’s forward plans, before finalising his or her business plan for the year ahead; and to report on the action he or she has taken to involve children in his or her annual report.
In meeting all these requirements, the commissioner will be required to take particular steps to involve children whom he or she considers have fewer opportunities to make their views known. I am sure that noble Lords will therefore agree that the Bill includes ample provision for children to be involved in the commissioner’s activities and to influence his or her agenda. We agree that this should include a wide range of children’s views but we do not think it is feasible to include a requirement to involve all children, which Amendment 252A seeks to do.
With respect to reporting on the extent to which children enjoy the rights set out in the UNCRC, I note that in response to a recommendation by the Joint Committee on Human Rights, we have made it clear that monitoring implementation of the UNCRC is within the scope of the commissioner’s remit. Amendment 254 goes further than this, however, and creates an expectation that the commissioner would conduct an annual review of UNCRC implementation. This would be a significant undertaking and place a burden on the commissioner’s office that would inevitably divert resources away from other priorities. We have no objection to the commissioner carrying out an annual review but do not think that he or she should be required to do so.
I agree it is important that the Children’s Commissioner should not just consult children but take their views into consideration, but I am not persuaded that Amendment 255 is necessary. The commissioner’s primary function includes promoting awareness of the views and interests of children, and it is difficult to imagine how a commissioner could carry out that function without taking account of those views. Reporting on how he or she has done so is a matter of good practice and therefore it is expected that this would happen without having the requirement to that effect in the Bill.
Amendment 266AZZZA relates to provision in the Bill that enables the Secretary of State to make a staff transfer scheme. This will allow staff working for the Office of the Children’s Rights Director, currently located in Ofsted, to transfer to the Office of the Children’s Commissioner and will ensure that those staff are protected in terms of, for example, their continuity of employment and pension entitlements.
I would like to assure my noble friend Lord Eccles that these arrangements are already well in hand and that Roger Morgan, the current Children’s Rights Director, has been closely involved in the design and development of these provisions and continues to be part of the working group which is overseeing the transition to the new arrangements.
Lord Mawson (CB)
My Lords, I have not been able to sit through the passage of this Bill, so I am not in a position to comment on it. However, over the past few months I have been sitting on the draft deregulation Bill which is concerned to reduce red tape and bureaucracy. I have come to the conclusion that the Government have a serious intent to get a grip on red tape and bureaucracy.
Can the Minister help me understand where this Bill and this discussion sit within this wider agenda? Will this Bill increase red tape and bureaucracy? What are its unintended consequences and where does it sit in the one-in-and-two-out agenda? It would be helpful to understand the scale of the red tape that will be generated by this Bill and this discussion. I would find it helpful to have the Minister respond to this further point briefly, if that is possible.
Viscount Eccles
My Lords, I am grateful to all those who took part and to the Minister for his reply. At the risk of repeating myself, you can strengthen a mandate, but that is not the same as strengthening the organisation which has to carry the mandate out. If I remember rightly, John Dunford joined in the disappointment with the way that the Children’s Commissioner operated until 2010. I think that disappointment, if it is shared, will continue because the Government’s answers are that business will continue as usual. I make no negative or positive comment on that. I just wish I knew whether that was the correct interpretation in the view of the Government. In particular, the relationship of the Children’s Commissioner with the Equality and Human Rights Commission is very important. If they are going to co-operate, work together and do things jointly, there is a strong case for leaving the Children’s Commissioner pretty open, pretty freewheeling and able to look at whatever the commissioner thinks should be looked at and to make recommendations as a result of that work, which is what has been happening and, in my view, has happened rather successfully. I do not want to stand in criticism; I just wish I knew what the Government really expect so that we could understand what they expect and out there the public could understand what they could really expect. I beg leave to withdraw the amendment.
Baroness Northover
My Lords, we have been given permission to go on until 8 pm, as I announced at the beginning of this Sitting, because we are running behind in the consideration of this Bill. I am acutely aware that the staff of Hansard need to work beyond their normal hours to do that. Therefore, we will need to finish at 8 pm. I realise that a number of noble Lords are here specifically for the next two groups and that they have helpfully combined them so that the subject matter can be addressed. My initial feeling was that if everybody was very brief, we might be able to get through. My sense now is that we may have to break in the middle of the debate. We will see how we get on.
Amendment 263
“Offence of failing to prevent smoking in a private vehicle when children are present
(1) The Health Act 2006 is amended as follows.
(2) After section 8 insert—
“8A Offence of failing to prevent smoking in a private vehicle when children are present
(1) It is the duty of any person who drives a private vehicle to ensure that that vehicle is smoke-free whenever a child or children under the age of 18 are in such vehicle or part of such vehicle.
(2) A person who fails to comply with the duty in subsection (1) commits an offence.
(3) A person convicted of an offence under this section who has not previously been convicted of such an offence shall have the option of attending a smoke-free driving awareness course in place of paying a fine under subsection (4).
(4) A person who does not wish to attend an awareness course or who has previously been convicted of an offence under this section is liable on summary conviction to a fine of £60.
(5) The Secretary of State may introduce regulations to alter the level of penalty payable under subsection (4).
(6) The Secretary of State shall update all relevant regulations regarding the offence created under subsection (2) within six months of this section coming into force.
(7) The Secretary of State shall introduce regulations within six months of this section coming into force to prescribe the format of the awareness course in subsection (3).”
(3) In section 79(4)(a), for “or 8(7)” substitute “, 8(7), or 8A(5)”.”
Baroness Finlay of Llandaff (CB)
My Lords, I will be as brief as I can, and my noble friend—as I must say for the purposes of these amendments—Lord Faulkner of Worcester will speak to Amendments 264, 265 and 266, which are now in this group.
The amendment I have tabled builds on the work of the noble Lord, Lord Ribeiro, who took a Private Member’s Bill through the Lords last summer, and that built on the work of Alex Cunningham MP in 2001, who introduced a 10-minute rule Bill.
This topic of children in cars where people are smoking has been around for some time. The amendment puts the onus of responsibility on the person in charge—that is, the driver of the vehicle. Children who are strapped into a car—as they have to be by law, for their protection—have little or no control over the smoking behaviour of adults in their presence. The British Lung Foundation did a survey of 1,000 children aged eight to 15: 51% had been exposed to cigarette smoke in the car. Of those who had been exposed, 31% reported having asked the people smoking to stop, but 34% were too frightened or embarrassed to ask even though they wanted the person not to smoke.
Smoking in a car is a particular concern because it is a confined space. We all know the hazards of passive smoking. Indeed, we have legislated against it. What we are now doing, however, is leaving children at higher risk than adults were exposed to before. Research has shown that a single cigarette smoked in a moving car with a window half open exposes a child in the centre of the back seat to around two-thirds as much second-hand smoke as in an average smoke-filled pub, in the bad old days when people smoked in pubs. Importantly, however, if someone is smoking in a stationary car with the windows closed, the level increases to 11 times that of a smoky pub.
There is clear evidence that cigarette smoke damages children’s lungs. They have smaller, more fragile lungs; they breathe more quickly and their immune system is less developed. It has been estimated that there are more than 165 new episodes of diseases of all types in children caused by passive smoking, which they are exposed to in such high concentrations primarily in cars, although they may also be exposed at home. This has been estimated to culminate, tragically, in about 40 sudden infant deaths a year, quite apart from about 300,000 primary care consultations and almost 10,000 hospital admissions. It costs us £23 million a year in primary care visits and hospital treatment, particularly asthma treatment. There is a catalogue of case reports about children who have had such severe asthma that they have suffered respiratory arrest. When the parent has stopped smoking in the car—the environment in which the child was exposed—their asthma has improved enough to be controlled. The Department of Health ran a two-month marketing campaign to try to raise awareness but I suggest that the next step has to be legislation.
Children are a protected party in law. Seatbelt-wearing rates increased in the UK from 25% to 91% after legislation was introduced alongside awareness campaigns. Children want this legislation: in the British Lung Foundation survey in 2011, 86% of children aged eight to 15 said they wanted the Government to introduce a law to protect them from cigarette smoke in a car. That is almost nine in 10 children. In another survey, done on Mumsnet, 86% of respondents supported a ban, including 83% of those who were themselves smokers. An ASH-YouGov survey of public opinion showed 78% out of more than 10,000 respondents saying they would support a ban in cars carrying children under 18, even though over 60% of those respondents were themselves smokers.
We are exposing children now to a very high risk of smoke through passive smoking. It is time to address that. I beg to move.
Lord Faulkner of Worcester (Lab)
My Lords, it will not escape the Committee’s notice that Amendments 263 and 264 are cross-party and Cross-Bench amendments and follow the precedent set by the introduction of smoke-free legislation in 2006, which your Lordships will remember was passed overwhelmingly on a free vote in both Houses of Parliament. Tobacco control should not be a party-political matter but the common concern of everyone who cares about the health and well-being of the public. To prove that point, the House of Commons held an excellent Back-Bench debate on the very issue of standard packaging the week before last, initiated by the Conservative MP for Harrow East, Bob Blackman. The Hansard report is well worth reading, not least because the case for standard packaging was widely supported by speakers in all parties.
The Committee will be aware that earlier this year it appeared that the Government would themselves legislate for standard packaging, as both the then Secretary of State for Health and the Minister for Public Health were convinced of its value as a means of discouraging children and young people from taking up this lethal habit. For reasons which I still do not fully understand, no government Bill has been forthcoming. However, fortunately, with the help of the Public Bill Office—to which I am most grateful—it proved possible to propose a new clause for the Bill on the basis that this is a measure that will improve the health of children and families.
Let us briefly consider the facts about youngsters smoking. First, most smokers start when they are teenagers. Two-thirds of existing smokers report that they started before their 18th birthday, and about two in five before they were 16. That is despite the fact that the direct sale of cigarettes to minors is now unlawful. Using official data, Cancer Research UK statisticians have calculated that, in 2011, more than 200,000 young people under the age of 16 started to smoke. Secondly, the younger the age at which smokers start, the greater the harm is likely to be, because early uptake of the habit is associated with subsequent heavier smoking, higher levels of dependency, a lower chance of quitting and a higher chance of death from smoking-related diseases. Thirdly, smoking rates are higher among poor communities and vulnerable groups.
Critically for this Bill, among the most vulnerable groups are children in care. For example, a 2002 study for the Office for National Statistics of 1,000 looked-after children showed that almost one-third were current smokers. This rose to more than two-thirds for those in residential care, reflecting the greater proportion of older children in these placements. I know that the Minister will agree with me that these figures are shockingly high and that it should be a high priority for the Department of Health to try to reduce them drastically. It is our view and the view, I think, of most experts in the field, all the charities, the BMA and other medical bodies that the introduction of standard packaging for tobacco products will make a real difference and will address the issue of young people smoking.
I could say a great deal more about the behaviour of the tobacco industry and its appalling attempts to frustrate this legislation but I shall reserve that for Report, when I promise the Committee that the issue will be put before the House, which will be given an opportunity to come to a definite decision. I hope very much that it will have the support of all parties in the same way that I will remember it did tonight.
Baroness Hughes of Stretford
My Lords, I know that other noble Lords want to speak, but perhaps because my noble friend and I have amendments in this group it might help if I speak to them first and we can get everything on the table.
I shall speak to Amendments 265 and 266, which would make a small but significant amendment to Amendment 264, which was spoken to by my noble friend Lord Faulkner. I also have a great deal of sympathy with Amendment 263. The arguments in favour of standardised packaging for tobacco are now self-evident and hardly need to be rehearsed. Similarly, there are no credible arguments against implementing standard packages for cigarettes that are not just plain but which, as we have seen in some of the briefings, are such that they may deter take-up of smoking and convey in stark terms the dangers of doing so.
The effects of smoking are well known. It is the largest preventable cause of cancer, causes 100,000 deaths a year and is a big factor in heart disease, cardiovascular illnesses, strokes and so on. Despite progress in reducing smoking, one in five adults still smokes. My noble friend Lord Faulkner has just reminded us of the fact that it is often in childhood and teenage years that people take up smoking; a significant number of youngsters aged between 11 and 15—an estimated 200,000, as he said—take up smoking. It is therefore a significant issue, and the more young people we can deter from taking up smoking in the first place and becoming lifelong addicts the better. We have to take seriously anything that makes smoking less attractive.
Especially since the advertising ban, cigarette packaging is the most important opportunity for tobacco companies to do exactly the opposite: namely, promote smoking as a cool, attractive and grown-up thing to do. That is why they spend millions on developing their packaging by testing its attractiveness to potential new customers and adding novel or gimmicky features that will attract interest. It is patently obvious that the companies believe that packaging is crucial to promoting their products and giving themselves a market edge. Indeed, research among young people by Cancer Research UK and other charities confirms the positive impressions conveyed by packaging in the minds of young people. One view was, for example, “It looks too colourful to be harmful”. We therefore have to use any means possible to protect young people from tobacco and deter them from taking up smoking. That is of course why the industry is resisting standardised packaging.
Like my noble friend, I could say more but I will not do so. This is essentially an issue of child protection. The public support standardised packaging. Children and young people find standardised packaging less attractive, more of a deterrent and more effective in conveying health warnings. Health professionals across the disciplines support standardised packaging. Other Administrations in the UK, and other countries abroad, are moving in this direction. I very much support Amendment 264, which sets out very well the detail that regulations on standard packaging should include, and I congratulate my noble friend and other noble Lords on bringing forward the amendment. However, our Amendments 265 and 266 would strengthen it by requiring the Secretary of State to make regulations rather than simply allowing them to decide whether to do so.
Baroness Tyler of Enfield
My Lords, my name is attached to Amendments 263 and 264. I want briefly to say why I feel so strongly that they are extremely important.
Like other noble Lords, I see smoking in cars primarily as a child protection issue. As we have heard, children’s lungs are smaller and they have faster breathing rates. That makes them particularly vulnerable to second-hand smoke, especially within the confines of a car. As we have heard, very often children are not able to stop adults smoking in their presence. Adult members of the public are protected by smoke-free legislation on public transport and in the workplace, but large numbers of children remain exposed to high concentrations of second-hand smoke when confined in family cars. I just do not think that is right.
My second point is that we simply cannot afford to wait any longer. We know that roughly one in five children reports being regularly exposed to second-hand smoke in cars. It has catastrophic health consequences. Finally, we know that there is very strong public support for this. In a recent survey, 80% of the public and 86% of children supported a ban, as do many health organisations.
Turning very briefly to standardised packaging, there is a very clear reason why people in the tobacco industry are always so opposed to amendments such as this. It is very straightforward. They know that the designer cigarette packet is a very effective advertising tool. Most worryingly, it is particularly effective on young people. I had many examples I was going to give; I shall reserve them for Report.
The other argument I would like to address is the one about the nanny state poking its nose into the lives of individuals. We are told that people know the risk and make an informed choice regarding whether or not to smoke. Of course, the problem is that the choices made by young people are not always informed. I am sure that we know from our personal experience how impressionable young people can be. I certainly do.
I remember going into a sweet shop aged about 14 or 15. There was a pack of cigarettes there. I will not give the name because I do not want to advertise it. I thought it was terribly elegant and glamorous and that if I bought that pack—which I did—I would be very elegant and glamorous. I do not think either of those held up, but really strong messages are coming across in that packaging. I have looked at the most up-to-date evidence. It is absolutely clear that standardised packs are less attractive to young people and improve the effectiveness of health warnings.
We have a duty to the children of this country to move on this issue once and for all. The time for talking is over and the time for action has arrived.
Baroness Massey of Darwen
My Lords, my name is on Amendment 263 and I shall be very brief indeed. We have just been discussing the Office of the Children’s Commissioner. We have just been talking about child protection. This also is a case of children’s rights. Children have the right to not be sitting in a smoke-filled car.
I was part of a debate on the Private Member’s Bill of the distinguished former surgeon, the noble Lord, Lord Ribeiro, who is here and will speak later on. He made a significant point. He said that awareness and behaviour change need to be coupled with legislation, and that smoking law at the moment does not cover cars.
The noble Lord, Lord Crisp, said that there are four questions to be asked. Is it dangerous? Yes. Are the dangers material and significant? Yes. Is it something that that affects other people? Yes. What are the downsides? They are modest. They are about having the freedom to smoke in a car when your children are present. It should not be allowed.
Lord Ribeiro (Con)
My Lords, I hear my name mentioned and I think I ought to say something very briefly. Your Lordships are influenced only by evidence. The evidence following the legislation in 2006 in Scotland and 2007 in England has already shown measurable effects in improving healthcare, particularly among non-smoking bar workers, in whom one study found an 89% reduction in cotinine concentration, which is a specific marker for tobacco smoke exposure.
That benefit should not be restricted to bar workers but should be the right of children who find themselves confined in cars where adults are smoking. I support this amendment very strongly. I hope that my noble friend the Minister will be minded to consider it. I realise that the Government have a programme for behavioural change and education and may wish to pursue that. The research, however, points to the fact that there is an improvement if we reduce second-hand smoke.
Baroness Northover
My words in front of me say that this may be a convenient moment for the Committee to adjourn. I know it is not. I am very grateful to noble Lords for abbreviating what they had to say. I am extremely grateful to our Hansard colleagues for staying on beyond their allotted time. I am sure that we will come back to this on Wednesday, but I am afraid that I will have to adjourn the Committee.
House of Lords
Armed Forces: Territorial Army
(11 years ago)
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Lord Trefgarne
To ask Her Majesty’s Government how many personnel have left the Territorial Army in the last 12 months; and how many recruits have been enlisted over the same period.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, first, I am sure the whole House will wish to join me in offering sincere condolences to the family and friends of Warrant Officer Class 2 Ian Fisher of 3rd Battalion The Mercian Regiment, who was killed on operations in Afghanistan recently. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.
Independent figures published last week show that 4,880 personnel left and 3,250 joined the Army Reserves in the 12 months to 30 September. These pre-date the recruitment campaign that started in September to grow the Army Reserve from a trained strength of 19,000 to 30,000 by 2018, with improved training and equipment. There are IT teething problems, which we are addressing as well as undertaking aggressive action continuously to improve the recruiting process.
Lord Trefgarne (Con)
My Lords, I endorse the opening words of my noble friend and add my support to them. With regard to the Question, given the future importance of Reserve Forces in the British line of battle, will he ensure that all vigour is applied to the recruiting campaign and that, in particular, the new terms of service for Reserve Forces are not so onerous as to put people off?
Lord Astor of Hever
My Lords, I am very grateful to my noble friend for his support. We are making the offer more attractive to both reservists and employers and encouraging ex-regular personnel to join. This is supported by significant additional investment—£1.8 billion over 10 years across training, equipment, paid leave, pensions, and welfare and occupational health support. The Army has already run one Army Reserve recruiting campaign, which resulted in a great many expressions of interest, and is currently running another with up to 900 soldiers conducting outreach activity at local and regional level.
Lord Tunnicliffe (Lab)
My Lords, I rise first to associate these Benches with the condolences expressed by the Minister and, particularly, to share his thoughts about the wounded. The Minister has refused on three successive occasions over the past few months to give an undertaking that the decline in the size of the Regular Army will not proceed until the increase in the trained Army Reserve is secured. Now we have figures—incomplete figures—about how this is going, but it does not seem to be going well. The data should be available and open. This should not be a clandestine experiment. Will the Minister commit to publishing all the figures? Does he share my concern that the Government are not meeting their targets and that the untrained strength of the reserves has gone down year on year? This does not bode well for his 2018 target or the future of the British Army.
Lord Astor of Hever
My Lords, I do not share the views of the noble Lord. The recruit partnering programme is not failing. We are getting the most capability for the taxpayer from the resources available. At the same time as growing and transforming the reserves, we are changing the way that we recruit for both regulars and reserves, along with our commercial partner Capita. These are two large-scale change programmes, which are yet to reach full maturity. We are working with the relevant contractors, namely Capita and ATLAS, and all MoD stakeholders to identify any problems, iron them out, mature the programmes, and deliver as committed.
Lord Boyce (CB)
My Lords, would the Minister like to say what signs there are of the preparedness of business, particularly SMEs, to release people to be reserves since this policy has been in force, given that many of those small businesses in particular have become very lean over the past three or four years?
Lord Astor of Hever
My Lords, we attach a great deal of importance to working constructively with employers and SMEs. I take on board what the noble and gallant Lord said about SMEs.
Lord Palmer of Childs Hill (LD)
My Lords, the Ministry of Defence has made redundancies on the basis of increased numbers in the Reserve Forces. If the reservists are not there, the public is bound to ask who is doing the job of defending Britain and Britain’s interests. What is my noble friend the Minister’s comment on that?
Lord Astor of Hever
My Lords, our Regular Forces will continue to furnish the highest readiness front-line defence and reaction forces, although these may be supplanted from time to time by individual reservists, but there are many areas in which the reserves can and do provide vital capability, such as medical and intelligence. They will continue their contribution in these fields, but we also expect to see them playing an increasing role in the provision of combat forces. Army Reserve units will be paired with regular units, which provide the same capability, and that will happen across the whole range of capabilities.
Baroness Howells of St Davids (Lab)
My Lords, is the Minister aware that young men from Grenada have been recruited into the Army, have been accepted and have come over here at their own expense to be trained in the Army? Within weeks of them being here, the Army said that the policy had changed and that those young men had to go back to Grenada, with no recompense. It is a very poor island, and sending recruits back who have spent money coming here, have started their training and have been dismissed in this way is giving a very unkind message to the islands, which supported this country during the two world wars. I hope at least that the Government will see their way to reimbursing those young men.
Lord Astor of Hever
My Lords, I reassure the noble Baroness that we welcome Commonwealth reservists. As announced on 11 July, to fulfil their reserves commitments they are required to have indefinite leave to remain in the UK prior to joining. However, I will look into the point that the noble Baroness raised.
Lord Dannatt (CB)
My Lords, does the Minister agree with me that the Chief of the General Staff is doing a very good job in trying to manage the process of reducing the Regular Army by 20% while building up the strength of the reserves against a very difficult financial background? We are only three or four months into a five-year programme. On the question asked by the noble and gallant Lord, Lord Boyce, on small and medium-sized enterprises, has consideration been given to waiving national insurance charges for those enterprises as an incentive to employers to take on members of the reserves?
Lord Astor of Hever
My Lords, I agree with the noble Lord that the Chief of the General Staff is doing a very good job. I have considerable briefing on the question that the noble and gallant Lord and the noble Lord raised on SMEs and national insurance. It will take me some time to find it—but I will write to the noble Lord. We have always expected there to be a dip in the level of the reserves before they increase as we are changing the fitness requirements and deployability of the force. To reassure the noble Lord, a target of 30,000 trained Army reservists is well within historical norms. We had 72,000 trained reservists as recently as 1990.
Lord West of Spithead (Lab)
My Lords, is not the real problem that we are spending far too little on defence? At this moment, we have HMS “Daring” doing a grand job in the Philippines, but it is one of only 19 destroyers and frigates.
Is it possible to put more money into the cadet forces? They do a wonderful job by taking youngsters off the streets, looking after them, encouraging them and growing them; and 30% of them end up as NCOs in our forces.
Lord Astor of Hever
My Lords, the noble Lord raises an important point which I will take back to my department. I agree with what he said about the cadets. I was patron of my local sea cadets and I am well aware of the good work that they do.
Public Interest Immunity Certificates
(11 years ago)
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Lord Maginnis of Drumglass
To ask Her Majesty’s Government on how many occasions since 2010 Public Interest Immunity certificates have been granted in cases of alleged fraud; and how many certificates were granted in each case.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, public interest immunity, or PII, certificates are ministerial instruments used in legal proceedings where the disclosure of sensitive material would cause a real risk of serious prejudice to an important public interest. Although applications for PII have been made in criminal fraud cases since 2010, I am not aware of any PII applications relating to fraud cases that involved ministerial PII certificates.
Lord Maginnis of Drumglass (Non-Afl)
My Lords, is not the noble and learned Lord’s Answer relevant virtually only to the case of Asil Nadir? Is it not ridiculous, and a mockery of British justice, that Asil Nadir came back to this country with all the evidence to clear his name, and that the Serious Fraud Office sought to hide behind more than 35 public interest immunity certificates? The SFO used the international status of the Turkish Republic of Northern Cyprus to avoid going there to examine the books although, 20 years previously, it had already been told by the administrators for Polly Peck that the audited books were in order. Is this not a contradiction of British justice?
Lord Wallace of Tankerness
My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.
Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.
Lord Carlile of Berriew (LD)
Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.
Lord Wallace of Tankerness
My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.
Lord Beecham (Lab)
My Lords, is not the SFO—the Serious Fraud Office—a seriously failing office? What expectations does the noble and learned Lord have of it improving on its rather poor record thus far?
Lord Wallace of Tankerness
My Lords, I think that that goes slightly wide of the question asked by the noble Lord, Lord Maginnis. From Written Statements which have been made in the other place by the Attorney-General, and which I have placed in your Lordships’ House, I know a number of steps have been taken recently to improve the operation of the Serious Fraud Office. However, I will ensure that the comments made by the noble Lord are drawn to the attention of my right honourable and learned friend the Attorney General.
Housing: Underoccupancy Charge
(11 years ago)
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Baroness Hollis of Heigham
To ask Her Majesty’s Government what assessment they have made of the impact of the underoccupancy charge on the stability of communities.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
My Lords, the impact of the removal of the spare room subsidy on the stability of communities will be assessed over the next two years as part of the independent evaluation currently being undertaken by a consortium which is being led by Ipsos MORI and which includes the Cambridge Centre for Housing and Planning Research and the Institute for Fiscal Studies.
Baroness Hollis of Heigham (Lab)
My Lords, I thank the Minister for his reply. Good social housing requires stable communities where neighbours look out for each other. That is one of the differences between social housing and the scattered private rented sector. How will half a million disabled families cope without their neighbours’ support because they are forced to move by the bedroom tax? How will frail elderly relatives cope when their middle-aged children who care for them have to move away because of the bedroom tax? Ministers quote the changes to the private rented sector in 2008 but those changes were not retrospective, whereas these are, and that is what is so wrong. Will the Minister undertake to ensure, as a transitional arrangement, that the bedroom tax applies only to new lettings and will he lift the bedroom tax for existing tenants and help us to maintain stable communities on which our civic life is based?
Lord Freud
My Lords, the policy is in position and is going through. The latest figures came out last week and showed that it now affects approximately 523 million people—
Lord Freud
I am sorry; I meant 523,000 people. That is a quite substantial reduction. While we do not yet have evidence of how people are responding to the policy—we will get that through our study—it is suggested that some behavioural changes are taking place. It is interesting that the numbers not in employment came down by 10% between May and August.
Lord Skelmersdale (Con)
My Lords, is it not a fact that we would not be in this position today if the last Labour Government had not allowed housebuilding to fall to the lowest levels since the 1920s?
Lord Freud
My Lords, clearly there are issues with housing. There is a great deal of overcrowding. There are various figures for this but between 250,000 and approaching 400,000 homes are overcrowded, and there are long waiting lists. Also, the economic signals seem odd. The provision of single-bedroomed homes falls very far short of demand, with 61% of people wanting, or meeting the size requirements for, one-bedroomed accommodation.
Lord Harris of Haringey (Lab)
My Lords, has the noble Lord seen a report in one of my local newspapers, the Haringey Independent, where one Di Alexander, who chairs a housing association and happens to be the father of the Chief Secretary to the Treasury, said that the bedroom tax,
“is particularly unfair in that it penalises both our tenants and ourselves for not being able to magic up a supply of smaller properties”?
Has the noble Lord also seen the report of the Chartered Institute of Housing on the pilots of capping benefits in the London Borough of Haringey? It points out that,
“2,300 children live in households whose income has been capped”,
resulting in,
“instability in education, increasing tensions within the home, sudden relocation and loss of social and educational opportunities or networks”,
which, it says, is extremely serious. Will he comment on the fact that, according to that study, the cost to local authorities and others of achieving a saving of £60,000 per week was £960,000 over just a four-month period? Does that really make sense?
Lord Freud
My Lords, it is simply too early to reach judgments about how the introduction of the benefit cap and the removal of the spare room subsidy bed in. The kind of savings that we were looking for from those policies seems to be being borne out by the very early initial figures that we are now seeing.
Baroness Maddock (LD)
My Lords, does my noble friend have the latest figures for the use by local authorities of housing discretionary payments? The last time I looked at this, local councils were not using that money to help people in the short term. I would be grateful if he could update us on that.
Lord Freud
Again, my Lords, it is hard to reach definitive conclusions. We now have £180 million for discretionary housing payments for this year, including £20 million that is by demand, to be bid for. So far, we have had just 13 bids in for that money. Last year, some discretionary housing payment money was returned. We are monitoring this extraordinarily closely to make sure that councils are able to deal with their hard cases.
Baroness Lister of Burtersett (Lab)
My Lords, there is a body of research showing the importance to families in poverty of local social networks to help them get by in poverty and even get out of poverty. Will the Minister explain how weakening those social networks through the bedroom tax contributes to the Government’s anti-poverty policy and the big society?
Lord Freud
My Lords, there is a misunderstanding here about the nature of the provision of a lot of social housing. Some 61% of people in social housing are single: they are not the families envisaged. Those are the people, by and large, who are affected by the removal of the spare room subsidy. We are looking at that very closely indeed.
The Countess of Mar (CB)
My Lords, will the Minister say what protection there is for the frail elderly, perhaps living on their own, or the sick or disabled, who do not know their way around the system and do not understand that they can appeal against any decisions that are made?
Lord Freud
My Lords, I emphasise absolutely that this policy deliberately excludes those who are retired—pensioners. The reason for that is that it is very tough to ask older people to make the kind of changes that are possible for younger people to make, so it is in that sense a flow measure. We are trying to get people to move down to appropriately sized homes—if they cannot afford to stay in their larger homes—when they are capable of doing so.
Baroness Gardner of Parkes (Con)
My Lords, I think most Members of the House believe that it is desirable for people to have the size of accommodation that they need and to free up accommodation for those many families with children about whom the noble Lord, Lord Harris, spoke. However, I have been told that one of my suggestions—about having a lodger—could prove to be very difficult to act on, because some local authorities will not allow you to have a lodger. Can the Government do anything to ensure that all local authorities will allow people who wish to have a lodger to do so?
Lord Freud
My Lords, I am grateful for my noble friend’s point. There is a bit of confusion around about sub-tenancies as opposed to lodgers. My understanding is that most housing associations and local authorities will accept lodgers. We have been carrying out an exercise in communication to ensure that people are thoroughly aware of that option.
Lord McAvoy (Lab)
My Lords, the Minister has repeatedly said in the past that the implementation of the bedroom tax was only “what the last Labour Government did”. However, my noble friend Lady Hollis has exposed that, because there was no retrospection when we brought out those regulations. The Minister has also complained that the last Labour Government did not build enough one-bedroomed houses or other suitable houses. In that case, why impose hardship, pain and suffering on thousands of disabled people as a result of the bedroom tax?
Lord Freud
My Lords, let me make absolutely clear that this is not a retrospective measure. It was brought in in this April and it capped the amount of benefit that we would pay people, reflecting whether they had spare bedrooms.
Unemployment: Youth Unemployment
(11 years ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what steps they will take to create all-party consensus to tackle long-term youth unemployment.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
My Lords, we are providing young people with the help they need to get back to work through Jobcentre Plus, the youth contract, the Work Programme, traineeships and apprenticeships. Our approach is working. Over the past year, the number of JSA claimants aged 18 to 24 has dropped by 84,800. We have also made £55 million available to cities for them to develop new and innovative ways of reducing long-term youth unemployment.
Lord Roberts of Llandudno (LD)
I am sorry that the Minister does not seem to share my deep concern about the problem of youth unemployment. Is he aware that 21% of young people aged between 16 and 24 are currently out of work? Does he know that long-term youth unemployment has more than quadrupled in the past 10 years? Some 115,000 18 to 24 year-olds have been out of work for two years or more. Whichever parties are in government in 2015, they will have to tackle long-term unemployment. We have tried to tackle this problem over the past 10 to 20 years. We must tackle it together and we must share the concern. If we cannot share the concern, is it not time to put our differences aside and to work together to resolve this nightmare situation for thousands of our young people? Will the Minister lead us in arranging some measure of co-operation?
Lord Freud
My Lords, the short answer is no. The policies of the previous Government were extraordinarily expensive. The Future Jobs Fund was introduced by the previous Government. At the time, I was in the department as an independent adviser, and that shocked me somewhat. It cost £6,500 for each job and half the people were back on benefits at the end. That is more or less the same performance as the work experience programme, which costs only one-20th.
I agree that the figures about which my noble friend is so concerned are a real concern and have been for a long time. I look at the figures for the unemployed and inactive youth. In 1997, it was 1.1 million youngsters. By 2010, after the longest boom in our history, it had risen to 1.4 million. Under this Government, in the worst recession since not the 1930s but the 1920s, it has come down 89,000 to 1.2 million. That is the way in which to have proper policies to handle the structural problem of youth unemployment.
Baroness Farrington of Ribbleton (Lab)
My Lords, will the Minister publicly offer advice to young people who are unemployed and living in regions which this Government seem to be bypassing? They cannot move to where they are offered employment because of the constrictions on property that they could afford to rent if they were in work due to the Minister’s self-confessed lack of suitable one-bedroomed accommodation. This Government are fostering a north-south divide and the anger of the young in the north has to be heard to be believed.
Lord Freud
My Lords, clearly, it is important to see mobility among the young who are looking for where there is work. However, it is as important for them that they equip themselves to do work, which can be done through work experience, training and apprenticeships. We are putting enormous efforts into getting those programmes right.
Lord Brooke of Alverthorpe (Lab)
Is the noble Lord misleading the House to a degree in quoting the figures? He referred to figures from 1997 which included and counted 16 to 18 year-olds who were unemployed, not in education and not undertaking any training. Now, because the Government no longer pay any benefits to 16 to 18 year-olds, there are literally thousands and thousands of people—the department does not know how many—who are not in employment, not counted and not included in the figures. What are you going to do to follow them?
Lord Freud
My Lords, I am counting inactive people in the figures I am using, which are the best ones available. Clearly, under the previous Government many people were put in government training schemes and were not counted. We can play with numbers as much as we like but I am not playing with numbers—I am giving a very clear, long-term run of the most important set of figures on how we handle the structural problem of youth exclusion from the labour market.
Lord Dobbs (Con)
My Lords, it is said that on a clear day some people in this Palace can see as far as Croydon. Will the Minister raise the sights of this House and get it to look as far, perhaps, as Greece or Italy, where the promise that unemployment could be solved by huge amounts of public debt has led not only to disaster but almost to despair? Does he accept that burying a future generation of our children in huge public debt is not only inept and does not solve the problem but, frankly, is immoral?
Lord Freud
My Lords, my noble friend underlines our problem in his question. We have got to get this economy out of the mire of running a deficit of more than £100 billion every year so that it is rebalanced and we are economically self-sufficient within this generation. If we are not and we go on borrowing to the extent that we can, the people who pick up that tab will not just be our children but our grandchildren and our great-grandchildren. That is not something we should want to leave to future generations.
Age-Related Payments Regulations 2013
(11 years ago)
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Lord Newby
That the draft regulations laid before the House on 21 October be approved.
Relevant document: 11th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 November.
Categories of Gaming Machine (Amendment) Regulations 2014
(11 years ago)
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Lord Bates
That the draft regulations laid before the House on 15 October be approved.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 November.
Armed Forces (Remission of Fines) Order 2013
Baroness Jolly
Relevant document: 12th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 November.
Anti-social Behaviour, Crime and Policing Bill
(11 years ago)
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Baroness Anelay of St Johns (Con)
My Lords, perhaps I may encourage colleagues who are seeking to leave the Chamber to do so without walking in front of the noble Lord, Lord Greaves, wherever possible. At the moment he is waiting very courteously to begin moving the first amendment. It is a courtesy of this House that we do not walk in front of the speaker, and noble Lords should leave by the other end of the Chamber.
Clause 1: Power to grant injunctions
Amendment 19A
Lord Greaves
Lord Greaves (LD)
My Lords, Amendment 19A stands on its own. I should first apologise to the House for not being present for Second Reading. As this is the first time that I have taken part in this Bill I should, in line with the Code of Conduct, declare various interests that I know are going to come up. I am a member of Pendle Borough Council and its executive and vice-president of the Local Government Association. I am also a member and vice-president of the Open Spaces Society and a member and patron of the British Mountaineering Council. I will declare any other interests as they crop up.
The amendment is unusual for a first amendment on a Bill because it deals with a specific point rather than a general one that might lead to some general discussions, but there are amendments that are coming up fairly quickly where those general discussions can take place on the principles behind this part of the Bill. We are talking about the proposal to abolish ASBOs and introduce injunctions for the prevention of nuisance and annoyance. The proposal is that injunctions of this nature can be taken out against people from the age of 10 upwards. There was some discussion at Second Reading, which I read with great interest, about whether the age of 10 was appropriate or whether it was too low. The amendment provides an opportunity for some probing and consideration of that at this stage of the Bill.
It occurred to me that it might be useful to look at my party's policy on this matter. That could be a fairly original thing for someone in your Lordships’ House to do, but in any case I thought that it might be helpful. I discovered that we had agreed a policy paper within the past two years, Taking Responsibility: Policies on Youth Justice. Under the heading “More appropriate treatment of Young People in the Justice System”, it talked about the age of criminal responsibility. These are civil injunctions so, unlike ASBOs, they are not part of the criminal system—although as noble Lords pointed out at Second Reading, any young people involved in the system might not recognise a great deal of difference between the two.
The policy states:
“Liberal Democrats recognise that children aged under 14 often know the difference between right and wrong and have personal responsibility for their actions but that courts are not the appropriate way to deal with them”.
We are not talking about the wider youth justice system: we are dealing with what is in front of us. The paper went on to suggest that it would be better if there were specially trained panels to deal with young people of this age, similar to those in Scotland,
“with the emphasis on measures including restorative justice”,
and community sentencing. It continues:
“Panels would be expected to provide consequences which were proportionate, sought to reduce reoffending and provide amends to the victim as well as addressing any welfare needs the child had”.
They would also mean that,
“immature acts of youth do not result in a lifelong criminal record”.
Some of the principles behind this are embodied in the idea that the injunctions for the prevention of nuisance and annoyance—IPNAs, as I suppose we will have to call them—will bring in. The document went on to talk about the age of criminal responsibility across Europe, which varies, although the UK currently has the lowest ages in western Europe—10 in England and Wales and, at that time, eight in Scotland, although there is now new legislation in Scotland.
Baroness Hamwee (LD)
My Lords, my noble friend has rightly referred to the series of actions that the Government are proposing in the new regime. Like him, I welcome the fact that the new injunctions will not be criminal. I think he said that this distinction in the eyes of young people may not be as great as it is to us. Does he agree that that is particularly the case with the widespread powers that the court has on breach of such an injunction?
On this amendment, may I make a point that may come up time and again? This is on the place of guidance, as used by all those who will be involved in the new regime. Guidance is one thing. It is important and has a significant place in the way any measure is applied. However, guidance is only guidance. If an issue is really important, it should not be left to guidance and therefore, while it may or may not happen, it should be a matter for the legislation itself. I am glad that my noble friend has raised this issue right at the start of today.
The Earl of Listowel (CB)
My Lords, I speak as vice-chair of the All-Party Parliamentary Group on children and young people in care and leaving care. Half of young people in custody have experience of care: they have been fostered or have been in residential care. Many of those unfortunate young people, who are in that position principally because they have been abused by their families, are also likely to get tangled up in the law and in the situations with which we are concerned here.
I begin by putting two questions to the Minister. First, there has been concern in the past that the assumption relating to media reporting when dealing with children is reversed in these circumstances. One of the tabloid newspapers published a string of photographs of children and their addresses some time ago. This was a few years ago and perhaps things have moved on, but I would be grateful to the Minister if he could write to me on where things stand with regard to publicising the names and photographs of such children.
My second question relates to youth services. We all know that the devil makes work for idle hands. With the cuts that have come about, youth services have taken a very heavy blow. Research has shown that where there have been summer activities for young people, the crime rate among young people reduces. We need to think about the positive things that we can do as well as the negative things—the stick and the carrot, if you like—when we discuss this issue. What guidance and advice on protecting youth services are being offered by central government to local authorities at this difficult time? In particular, what advice is being offered to the new PCCs, which have a lot of resources and which could perhaps funnel some of them towards supporting youth services? I was very gratified to hear recently how much support the Government are giving to mentoring young people in the criminal justice system and in schools. That information would be helpful.
I am sorry to speak for so long but I should like to make just one point. Many of these young men—boys, I should say—grow up without a father in the home. We know that two-thirds of black boys in the United States grow up without a father in the home. According to the OECD, the level of lone parents in this country is even higher than that, so many boys here are growing up without fathers in the home. The risk is, and my experience shows this time and again, that such young men feel a sense of guilt. They are not rational in trying to understand why their fathers are not interested in their lives. They think that it is something that they did that caused it. I can think of an occasion when I was with a group of looked-after children in Parliament. Somebody popped their head in to ask a question, suggesting that somebody might have done something wrong, and there was an immediate look of guilt among them—“What have we done wrong? What are we to blame for?”. You hear from adults who have had such an experience that they are ridden with guilt and feel negative about their lives, even about the good things in it. The risk is that, by having a low age of criminal responsibility or by introducing these measures for people of such a young age, the state is coming along and saying, “Yes, there isn’t anything good in you. We will put your photograph in the local newspaper. You will be described as a bad person”. In that, we are reinforcing what their parents have told them and what their experience has been.
I remember as a boarder at school becoming particularly attached to my housemaster, who was with me for several years. When he moved on to be the headmaster of a new school, for several weeks I would ask myself before going to bed at night, quite unreasonably, what I had done to him that was driving him away. I felt guilt for driving him away. I cannot stress enough that my experience points to such a sense of guilt in these young people. Yes, they must be made to feel responsible; no, they should not be allowed just to be called victims. There are sanctions available but I worry that there may be a perverse outcome if we keep the age as currently proposed in the Bill. I look forward to the Minister’s response.
Lord Ramsbotham (CB)
My Lords, 10 days ago, a number of us debated in this House the Second Reading of the Age of Criminal Responsibility Bill, introduced by the noble Lord, Lord Dholakia. I commend some of the things that were said then about the ability of children of the age of 10 to comprehend fully all the businesses of the criminal justice system when they were motivated against them. During the debate I cited the fact that the well known 10 year-olds Thompson and Venables, responsible for the murder of Jamie Bulger, were said by the psychiatrist involved in the case to have a developmental age of four.
You cannot expect a child with the developmental age of four to be able to comprehend exactly what is involved in the criminal justice system, whether it is an injunction, which does not carry a criminal record, or an anti-social behaviour order, which does. I am glad that the noble Lord, Lord Greaves, introduced age very early in this Bill, because all the way through we ought to have at the back of our minds that we are talking about anything to do with children of the age of 10.
We are way below the United Nations recommendation that the age of criminal responsibility should be nearer 15. We are way below what happens in Scotland and countries such as China. I am not sure that it is civilised to throw the criminal justice system at children of 10. Therefore, while I am glad that the intention is not that the injunction should carry a criminal record, we ought to take seriously the question of whether 10 is an appropriate age to start whatever process we have, because within society there should be other ways of doing it. I know that these are not very satisfactory at present, but let us not forget the conditions in which a lot of these children live their lives. I have always thought that it was unfortunate that Mr Blair, in his famous statement about being,
“tough on crime, tough on the causes of crime”,
rather lost sight of being tough on the causes. It seems to me that we have to get to grips with the causes, as much as anything else, when we propose the injunctions and so on that we are talking about.
The other thing that concerns me is that we have here a Home Office Bill that talks about children, while in the Moses Room we have the Children and Families Bill, which also talks about children. We learn there that the Department for Education is not actually the key organisation in the development of children initially, but the Department of Health. Then we find that the Department for Work and Pensions has a role to play in all this, as, of course, does the Department for Communities and Local Government. Therefore all sorts of initiatives are going on, all aiming at the same thing, which lack co-ordination. I feel that there ought to be a Minister of child development in the Cabinet Office, responsible for pulling all these threads together, otherwise we will go charging off in a lot of directions, which will be unco-ordinated, and the casualties will be the very people whom this Bill claims to protect.
Lord Hope of Craighead (CB)
My Lords, perhaps I might follow my noble friend Lord Ramsbotham on an issue which I raised at Second Reading: the position of the court granting an order. I raised the question of whether there was anything in the Bill that provided for rules to be made requiring the court to make sure that the individual understood the order that was being made, bearing in mind the consequences if the injunction was to be breached.
I think I am right in saying that nothing in the Bill requires rules to be made to deal with that matter, but will the Minister tell us whether the guidance deals with the position of the child in court? Obviously, the guidance deals with the steps preliminary to taking this action against the individual. However, if the age of 10 is to be adhered to, it is extremely important—for all the reasons that the noble Lord has given—that the individual fully understands the consequences of the order, as well as the need to obey it.
If there are no provisions in the Bill about rules to be made, it comes back to the guidance and the responsibility on those who are guiding the individual to ensure that the order is fully understood, and that there is a reasonable prospect of the child fulfilling what he or she is required to do.
Lord Harris of Haringey (Lab)
My Lords, is not part of the problem that the Government are trying to sweep away a whole range of different responses to anti-social behaviour and replace them with what is essentially a single measure, at least as far as the individual is concerned, and that therefore there is no gradation? There is no way to modulate what is done or provide a specific response to individual circumstances. That seems to be what is causing this problem. If there were some gradation, there might well be measures that it would be appropriate to take against children of the age of 10 or 11, who have an understanding of when they are behaving outside societal norms. However, there would not be the same level of sanction implicit in breaching an injunction.
Part of the difficulty with all of the amendments which your Lordships will be considering today is that we are left, essentially, with one type of measure to deal with a multiplicity of problems. That is why trying to find the right balance as to how best to be effective against those problems is one difficulty. Because the Government have decided simply to do away with all the existing arrangements and replace them with one simple measure, we will face that difficulty.
Baroness Smith of Basildon (Lab)
My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.
However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.
The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.
I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.
I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.
Lord Faulks (Con)
Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?
Baroness Smith of Basildon
We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am grateful to my noble friend Lord Greaves for tabling this amendment, because it does seem to be a good place to start. The issue has certainly triggered a lot of arguments from colleagues, if I may say so. We have set this age of 10 because that is the age at which children are currently deemed capable of being responsible for their actions under the criminal law. My noble friend showed quite clearly that this is something that has been enshrined in legislation for some time, but I emphasise that the focus of the injunction is to nip issues and problems in the bud.
Many of us agree that the move away from automatic criminalisation of young people is a step in the right direction; noble Lords have backed the Government’s decision to move in that direction. Breach of an injunction does not result in a criminal conviction, giving the young person a chance of reform with a clean slate. This is not the case with anti-social behaviour orders, where breach is a criminal offence; this change has been widely welcomed by, among others, the Home Affairs Committee in another place. In addition to the injunction, positive requirements can be used to help address the causes of a young person’s anti-social behaviour, to help them to turn their life around before that behaviour escalates to something more serious.
We have also built in requirements for the local youth offending team to be involved at different stages in the process, to allow for the proper and thorough consideration of the needs of the young person. This goes far beyond what was required for the anti-social behaviour order. Furthermore, on the recommendation of the Home Affairs Committee, we have limited the maximum period of an injunction to 12 months where it is issued against someone under the age of 18, whereas the minimum duration of an ASBO is two years. Twelve months will provide agencies with sufficient time for them to work with other agencies to address any underlying issues driving anti-social behaviour. It strikes the right balance between providing victims with the respite they need and sending a strong message to young people that anti-social behaviour is not acceptable.
My noble friend Lady Hamwee emphasised the importance of the guidance. We have published draft guidance for front-line professionals and I hope that noble Lords will take time to have a look at it. I think they will find that it complements what the Bill seeks to do, and it is a very important document. It is available on the Home Office website, but if those who want a hard copy let me know, I will ensure that one is sent to them. It will be relevant to the youth offending teams and, in relation to Part 6 of the Bill, to police and crime commissioners; again, my noble friend mentioned how important the role of the PCCs could be. We are consulting on the draft guidance at the moment, and we would welcome comments from noble Lords on what it should include.
The noble Earl, Lord Listowel, asked about reporting restrictions. We are going to come to that issue; it is in this early part of the Bill and will be debated as we have amendments down to discuss it. Amendment 21A has been tabled by my noble friend Lady Hamwee. I hope that the noble Earl will be able to be involved in that debate.
The noble Lord, Lord Ramsbotham, mentioned that the House is of course considering the Age of Criminal Responsibility Bill, introduced by my noble friend Lord Dholakia. He also questioned the risk of a lack of co-ordination across government. I hope—indeed, I have had private conversations with the noble Lord about this—that all this legislation is of a piece. It is designed to address the failure of Government to get on a child-focused agenda. The IPNA in particular is part of our Home Office legislation to reinforce child focus, and victim focus, in the same legislation so that we successfully tackle anti-social behaviour.
The noble and learned Lord, Lord Hope of Craighead, mentioned the question of the guidance and whether courts could be included in it. In theory, court rules could cover this, provided that the relevant rule-making committees agreed. We will consider the utility of this, as well as whether guidance could play a useful role here. I look forward to hearing from the noble and learned Lord on this issue.
If I may say so to the noble Baroness, Lady Smith, the timing of this particular day’s business, which I think all noble Lords will have found themselves swotting up on a little more earnestly than they might otherwise have done, was agreed through the usual channels, and indeed I understand from my colleague that the proposal was welcomed by the opposition Chief Whip, although I was not in the Chamber at the time.
I emphasise to the noble Baroness that the IPNA is not the only means of addressing anti-social behaviour by children. We have made it clear in the draft guidance that the police, local authorities and others should consider a non-interventionist basis in the first instance if they can do so. The Bill also provides for more serious cases at the other end with the criminal behaviour order, so there is a flexible response to the phenomenon. As I said earlier, the youth offending teams—
Lord Harris of Haringey
I am grateful to the Minister for giving way. Will he give us some examples of when he thinks it will be appropriate to use the injunction route for a child of 10 or 11? What does he envisage as the penalties in the event of breach?
The Earl of Listowel
My Lords, perhaps I could save the Minister some time. Following on from those two questions, it is comforting to hear that this is not as strong a method as I had been concerned about. Much of what the Minister has said has been reassuring. However, if one draws children into the support of the youth offending teams, they might say, “I am with all those others who are involved with the criminal law now if the youth offending teams are with me”. Does the Minister understand that concern? I hope that that relates to what the noble Lord was asking
Lord Taylor of Holbeach
That follows on from where I was in my argument. The engagement of youth offender teams is key to this issue. They welcome the opportunity of intervening earlier—pre-offending, one might say—because one of the deficiencies of the current system is that the remedy lies in an anti-social behaviour order, which is a rather heavy hammer with which to deal with the problem. This is much more nuanced. I cannot answer the noble Lord in specifics because I am not thinking quickly enough on my feet. However, I hope I have reassured him that the early stages of anti-social behaviour are likely to be dealt with informally, as they would be at present. The injunction method gives a framework for remedial activity, particularly with a young offender, but we should remember that IPNAs apply to others as well as young people.
Lord Harris of Haringey
I am grateful to the noble Lord for attempting to answer the point. The amendment deals specifically with young people. Before we come to Report, could the noble Lord write to me and other noble Lords setting out, in more detail, his thinking on the circumstances which will lead to an IPNA for a young person when everything else has failed? What does he see as being the consequences of a breach? It sounded to me as though the consequence was a referral to a criminal behaviour order and the youth offending team process. I am not suggesting he try and answer now: he clearly wants to have the information in front of him. However, it would be helpful to the Committee to have that information.
Lord Taylor of Holbeach
The penalties, set out in Schedule 2, include up to two years’ detention for children of 14 or over, but only in exceptional cases. The noble Lord has invited me to write to him on this issue and I am very happy to do so. I hope he also has the opportunity to read the guidance because that will help in his understanding of how the IPNA is meant to operate on the ground, in particular cases, and will help inform him just as much as my letter will do.
Baroness Smith of Basildon
I am sorry to intervene on the noble Lord, but I asked a question about Article 3 of the UN Convention on the Rights of the Child and the comment made by the Joint Committee on Human Rights that this Bill has no requirement to consider a child’s best interests, their specific needs or learning difficulties. Why does the Bill have no reference to that?
Lord Taylor of Holbeach
That will be the subject of a later amendment, but I can reassure the noble Baroness that, as a legal process is involved, the courts have to take into account the human rights of anybody who is before them. It is not for the Bill to make that explicit: it is a matter of practice within the courts.
The Earl of Listowel
My Lords, I am very grateful to the Minister for the care with which he is responding to these questions. I would be grateful if he would drop me a line about the advice the Government might offer the new police and crime commissioners on funding youth services. It is so important that children have something to do with themselves. At this very difficult time, youth services are being cut right to the bone. Therefore the new police and crime commissioners have a lot of resources that they can choose to focus wherever they please; if some of those went to youth services that would be very helpful.
Lord Taylor of Holbeach
To respond to the noble Earl, 38 of the 41 police and crime commissioners listed anti-social behaviour as one of their major priorities in their crime plans, so the subject is at the top of the list. Certainly one would hope that as well as dealing with the consequences of anti-social behaviour, that could be converted into preventive action. I beg to ask my noble friend to withdraw his amendment.
Lord Greaves
My Lords, I am grateful to the Minister for trying to withdraw my amendment before I do, but he is a bit too enthusiastic. I am grateful to all noble Lords who have taken part in this discussion, which has been useful. It has shown that there is not quite as much clarity about how the youngest children in particular—10, 11 and 12 year-olds—will be dealt with in the new system. I hope that perhaps the Government might find ways to be clearer about that as the Bill proceeds. I am sorry that the noble Baroness, Lady Smith of Basildon, had to dash back from Argentina. Since she took up her responsibilities on the Opposition Front Bench I have admired her contributions to this House. I never quite thought of her as Eva Perón, but perhaps she can sing to us as well—that may be a thrill in store.
The Minister said that the Government are replacing ASBOs, which are a “heavy hammer”, with a more nuanced approach. The noble Lord, Lord Harris of Haringey, pointed out that they are doing this by sweeping away a whole range of means that perhaps on the face of it ought to provide a more nuanced approach and a greater choice of measures in each case, and replacing it with one. The crux of the matter—whether this injunction will work for young people and for people generally—depends on whether it is sufficiently flexible. The Minister referred to the draft guidance that has been published. For much of the anti-social behaviour parts of the Bill this draft guidance is still very skeletal. The part of this draft guidance that deals with the new injunctions and the way in which they might be the end of a series of actions is one of the better parts, although it can no doubt be further improved.
In particular, as far as these very young people—10 and 11 year-olds—are concerned, it is crucial that the measures and the intervention are there to prevent them ever getting to the juvenile court for an injunction. In my experience of kids in my area who have had ASBOs, once they are given one, for most of them the system has failed. There will be the same sort of thing with the IPNAs. Once kids are hauled up before a system of justice and have these things imposed on them, perhaps without sufficient support to make sure that they adhere to them and do not breach them, for most of them the system has failed at that stage. They are far from being rescued from a life of difficulties and crime—they are rather being set on the road towards it. That is my experience of people in our area. We all hope that this new system will be better for them.
Having said that, I am very grateful for the Minister’s careful comments, which set the Committee off to a good start as far as the anti-social behaviour parts of the Bill are concerned. I ask the Government to think again whether 10 is the right age for this. In the mean time, I beg leave to withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, in moving Amendment 19B, I shall speak also to Amendments 20E and 22Q in the same group. The relationship between the new systems and statutory nuisances might appear a slightly obscure subject but I do not think it is obscure. It is fundamental to how it will work on the ground and to the workability of the measures in the Bill. Amendment 20E introduces a third condition for using IPNAs—injunctions for the prevention of nuisance and annoyance—which is that they do not cover the same ground as existing statutory nuisance powers.
Amendment 22Q leaps forward a little in the Bill to community protection notices, which are a parallel measure that the Bill introduces, again sweeping away quite a number of former powers into one power to prevent local nuisance such as litter, dog nuisances or whatever it may be. This states:
“A community protection notice may not be issued if the conduct constitutes a statutory nuisance under any other enactment”.
With these amendments I am trying to probe the relationship between the new measures and statutory nuisances, but also perhaps to probe the relationship between IPNAs and community protection notices. It is not entirely clear to me in what circumstances one might be appropriate and in what circumstances the other might be appropriate. It would help if the Minister could clarify that.
The Explanatory Notes to the Bill, I should say in passing, are of a considerably higher quality than some of the Explanatory Notes we get to Bills, which simply churn out the wording of the Bill in a slightly different way. The Explanatory Notes to this Bill make a real effort to explain what is behind the Bill, previous legislation, what it is replacing and the logic behind the proposals. Therefore, I should like to congratulate whoever in the Home Office wrote these. I do not usually congratulate the Home Office on anything, but on this occasion I do, very much.
It sets out some of the most common statutory nuisances:
“Noise … Artificial light … Odour … Insects … Smoke … Dust … Premises”.
We can all think of occasions when the troughings, or whatever they call them in the rest of the world, are leaking with water down the downspouts and covering everyone who goes past. The list goes on:
“Fumes or gases … Accumulation or deposit”—
which gives rise to all sorts of images—
“Animals kept in such a manner or place as to be prejudicial to health or a nuisance”,
and, indeed, any other matters in enactment.
These are clearly problems, or nuisances, which it is also intended that the new community protection notices should cover at least to a degree. The Explanatory Notes say that the community protection notice is intended to,
“deal with unreasonable, ongoing problems or nuisances which negatively affect the community’s quality of life by targeting the person responsible”.
Specifically they will replace litter notices, some dog legislation and so on.
Part 3 of the Environmental Act 1990 places a duty on a local authority to investigate complaints of statutory nuisance from people living within its area. There is clearly an overlap here. The question I ask is: will the use of an IPNA or a community protection notice preclude later prosecution for a statutory nuisance if the investigations reveal, or the officers concerned come to the view, that there is indeed a statutory nuisance involved? Will the community protection notice be overridden or withdrawn if it is found that there is a statutory nuisance, or is there a choice? Will it be a pragmatic decision on the ground at any given time, or can the two go hand in hand? Can a CPN or an injunction be proposed and be going through at the same time as a prosecution for statutory nuisance is taking place?
Baroness Hamwee
My Lords, I have amendments tabled later on community protection notices and how statutory nuisance is to be dealt with, but I use this opportunity to ask the Minister a couple of questions.
In the Commons, the Government took out the exclusion from community protection notices of statutory nuisance—it was in Clause 40(5)—saying that they had established a technical working group including representatives from the police, the Chartered Institute of Environmental Health and the Chartered Institute of Housing to draft clear guidance as to what to use when. I should declare an interest. I am a vice-president of the Chartered Institute of Environmental Health, which is why it has come to me on this issue. It has told me that it was asked for a comment at one point but that it is not aware of the technical working group. Can the Minister explain to the Committee what is happening in that area?
The institute’s concern is about confusion over who should do what, whose responsibility it should be and whether, in the case of some nuisances, those who might have powers to deal with them are likely to have the technical knowledge. The point was made to me that you can tell what litter is, but it is not always easy to tell when noise is a statutory nuisance, because so many conditions and criteria surround it. I would be grateful for some help and news, which might shorten our debate later—although, of course, it might not.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendments and my noble friend Lady Hamwee for her comments. It is interesting that she talks about noise. In one’s own personal experience, what is music to some is noise to others. I think we shall be returning to this.
With regard to the amendments to the new injunction, it is our view that they could make the actual process much slower and more bureaucratic—akin to the orders that we seek to replace. It would not help professionals deal with anti-social people and, more importantly, would not help victims who have to endure the perpetrator’s behaviour.
The new injunction is designed to be used quickly and, in many cases, preventively, to stop problem behaviours before they escalate. These problem behaviours will not always relate to a statutory nuisance. Therefore, to include an additional condition which suggests that statutory nuisance should be considered every time would, in all likelihood, result in some social landlords or police forces being unable to act quickly to protect the victim. We expect social landlords and police forces to work in partnership with local councils to deal with shared problems, such as anti-social noise nuisance. If social landlords and police forces felt obliged to seek advice from the local council’s statutory nuisance team before every injunction, this could delay the process of the application unnecessarily, and lead to victims suffering even more. Moreover, this new third limb of the test could open up the process to prolonged and costly legal challenges, as respondents sought to argue that their conduct amounted to a statutory nuisance.
The same is true of my noble friend’s amendment to Clause 40. As he will be aware, we had originally excluded statutory nuisance from situations in which a community protection order could be issued. However, after discussing the matter at length with environmental health officers and other professionals, we discovered that this exemption could result in an undesirable scenario. Some perpetrators might use the appeal mechanism to go unpunished via either the statutory nuisance or the breach of the community protection notice.
My noble friend Lady Hamwee is correct that the Opposition Front Bench raised such concerns in Committee in the Commons. Having considered the matter further, the Commons was content to make this change on Report. So I ask my noble friend to accept my assurances that we continue to work closely with statutory nuisance experts, to ensure that the guidelines reflect the important rule that the regime plays in protecting communities from behaviour that is a nuisance or prejudicial to health. In addition, I assure my noble friend Lord Greaves that the issue of a community protection notice, or the granting of an injunction by the court—which was a specific question he asked—in no way discharges the local authority from its statutory duty to serve an abatement notice where behaviour meets the required threshold.
I say to my noble friend Lady Hamwee that our draft guidelines already deal with the interface between statutory nuisances and the new powers in the Bill. I can reassure her that we continue to engage with environmental health practitioners on how this guidance can be further developed in advance of the commencements.
My noble friend Lord Greaves also asked about the choices available. There is no choice as to whether a local authority serves an abatement notice for statutory nuisance. It must serve one if it is satisfied that a matter is a statutory nuisance. He referred to the Explanatory Notes. There is a good example in there that is illustrative of what may be a nuisance, but not a statutory nuisance. A dog bounding over a fence, or through a hole in a fence, can be a nuisance. Recently, I experienced that with my young son, aged 20 months. Suddenly, a dog scurried under a fence, and appeared next to him. It was certainly more than a nuisance to his father, who was far more startled, whereas the dog was just being playful. In those cases, the first and most sensible thing for anyone who is trying to be a good neighbour to do is to talk their neighbour and see if the matter can be resolved locally. Where such behaviour persists, a non-statutory injunction is not appropriate, and a sensible solution is required before putting it on to a more serious basis.
Let me reassure my noble friend Lady Hamwee once again that the Government continue to talk to experts in the field. Based on my explanation, I hope that my noble friend will withdraw his amendments.
Lord Greaves
My Lords, I have found the Government’s answer to these amendments a bit less satisfactory than their answer to the previous group. We will get on to community protection notices later but I think that the last example that the Minister put forward was a good one. It provided a good reason why CPNs may be a very important and useful new power compared with what currently exists: they will not relate specifically to one thing, such as litter, dogs or whatever, but will be a general power based on whether an anti-social nuisance is taking place.
If I may say so, the other examples that the Minister gave show that the people here who are preparing these things and explaining to us how they will work do not fully understand how things work on the ground, if they work well. Noble Lords seem to think that the police and social landlords operate in one little area and that the local authority is something quite different. Where these things work well, those different groups work together on these issues all the time. The first people to go and investigate the noise may or may not be the police and it may or may not be the social landlord. However, most people who experience anti-social behaviour do not live in social housing. In my experience and, I think, that of many people, most people who experience anti-social behaviour live in private tenanted accommodation, and therefore social landlords are not relevant. The people who turn up to deal with the noise nuisance may be local authority officers. In my part of the world, there is a scheme in which the local authorities work together. They have an out-of-hours service whereby, even at three o’clock on a Sunday morning, somebody will answer the telephone and try to do something about it.
Therefore, if things work well, they work well because people on the ground from those three agencies, as well as from other agencies that may exist locally—some of them voluntary—work together in that way. That is why I think that saying that, on the one hand, there will be the council and the environmental health officers with their statutory nuisance abatement powers and, on the other hand, there will be everybody else with these powers is not quite how it is going to work. I hope that it will work but locally everything has to be much more flexible than the Minister seemed to suggest.
The guidance is going to be crucial but, as it stands, I do not think that it is adequate in this area. I am aware that work is taking place to improve it but, when it comes down to it, the idea that local authorities will stop the police or a social landlord going ahead and taking action because they may be investigating and they have other powers is just not how it works. In any case, even a local authority may have a statutory duty to serve an abatement notice if it is satisfied that a statutory nuisance is taking place, but in practice that is not how it works. In practice, a local authority will always go down the route of contacting the people involved, as well as the landlord, and attempting to resolve the matter without serving a notice. If it does serve a notice and the matter gets to court because people appeal against the notice, then, if the local authority has not gone out of its way to resolve the matter, the court will send it back and say, “You’re not having this. Go and do it properly”.
Having said all that, if they are willing, some further discussions on this matter with the Government in the mean time would be very helpful. I beg leave to withdraw the amendment.
Baroness Mallalieu
Baroness Mallalieu (Lab)
I shall also speak to Amendments 20A and 20D, which are grouped with Amendment 19C. I speak on behalf of the noble Lord, Lord Dear, who regrets that he is unable to be in his place today.
I think everybody agrees that anti-social behaviour is a very real problem and that the authorities have to be able to prevent innocent people having their lives made a misery by it. There can always be improvements to whatever system is in place. However, most of us—if not all of us—also agree that civil liberties are also precious, and freedom of expression is particularly so, as it is often through the expression of ideas that society is changed for the better. These three amendments are tabled with the aim of helping the Government to get the balance right between the two. Many of the people who spoke at Second Reading on this Bill—and many, many more who have written to and lobbied Peers on all sides of this House—feel that Clause 1, as presently drafted, has got the balance wrong.
A law to tackle anti-social behaviour must surely be precise, targeted and given proper safeguards. If not, it would be capable of undermining fundamental human freedoms; it would be likely to distract the authorities and swamp the courts, hampering the tackling of genuine social problems effectively. As it stands at the moment, Clause 1 creates what we are already calling here IPNAs: injunctions to prevent nuisance and annoyance. The very wording exposes the main problem in the present drafting, because you cannot actually outlaw nuisance or annoyance by all people and in all places. The concept of both of those things without a proper definition is vague and, above all, subjective.
We are talking here about a change of law that will apply to any person in any place, public or private. Clause 1(2) says that injunctions can be sought by a whole range of bodies and individuals in relation to conduct that is merely,
“capable of causing nuisance or annoyance to any person”.
That pretty much covers all human life: there is no human activity, I suggest, that does not annoy someone somewhere. This test has been borrowed from the context of housing, which involves neighbours and people living in close proximity who cannot simply move out or look the other way or pay no attention. The present test is very carefully restricted to conduct affecting the housing management functions of the relevant landlord. It is quite another thing, however, to apply it to the high street, the park, the sports stadium, the countryside at large or Parliament Square. It risks being used against every single one of us for something we do, have done or might do in the future—protestors; people with noisy children playing outside; people preaching in the street; people canvassing; people ringing church bells; pet owners; carol singers; clay-pigeon shooters; and even nudists, whom I have to say have written to me and a number of other noble Lords in very considerable numbers, concerned that they are likely to be targeted as people who are “capable of causing … annoyance”. However, it is not just those groups: it is all of us who are potential targets of this imprecise, all inclusive drafting.
We live in a crowded island; nuisance and annoyance are inevitable consequences of our lives which demand a degree of give-and-take and tolerance. Legislation must be targeted, or our courts will simply be clogged with the trivial and vexatious; real serious nuisance and actual serious annoyance will go unchecked. They will simply not get a look-in and the IPNA will become discredited.
The IPNA is intended to replace, among other things, the ASBO, which a magistrate, at present, can make if two conditions are met. The first is if somebody has acted in an anti-social manner, which is defined, very sensibly, as,
“conduct which caused or was likely to cause harm, harassment, alarm or distress to one or more persons not of the same household as him or herself”.
The second condition about which they have to be satisfied is,
“that such an order is necessary to protect relevant persons from further anti-social acts by him”.
The range of bodies which can apply for an ASBO is narrower than that for an IPNA, which obviously reduces the number of applications and the scope for abuse.
The IPNA is applicable to everyone but, most importantly, there is a vast difference between the thresholds of the two. Instead of targeting harassment, alarm or distress, Clause 1, as I have already said, catches any behaviour by any person that is capable of causing nuisance or annoyance. Each of us in this Chamber probably passes that threshold several times a day in the eyes of someone or another—in refusing to give way at Question Time or by talking for too long or too often. That is quite apart from outside this Chamber—snoring loudly in the Library or not putting newspapers back after reading them—or before we leave this House and venture into the outside world.
Clearly, there are other tests in Clause 1 but that it could at its base level encompass the most ordinary activities of human life is breath-taking. Further, instead of having to prove necessity, as under the ASBO, the courts for the IPNA application will operate the ordinary civil court test for injunctions; that is, deciding where the balance of probabilities lies. ASBOs currently are handled by the magistrates’ court, which must be convinced beyond reasonable doubt—in other words, the criminal standard of proof. But IPNAs are to be handled by the civil courts, which need to be convinced only on the balance of probabilities—the civil standard of proof—that a person has engaged in the alleged conduct.
Under Section 1(5) of the Crime and Disorder Act, where an ASBO is sought the individual has a defence if he can show that his conduct was “reasonable in the circumstances”. But, as yet, there is no reasonableness defence in Clause 1 of this Bill, although I see that the noble Lord, Lord Faulks, has a suggested amendment on the Marshalled List. Therefore, IPNAs have a far lower threshold with fewer safeguards, making them much easier to obtain than an ASBO. That is of course the Government’s intention. They want to reduce the present evidential burden, about which some have complained, and to speed up the court process.
There are strong arguments that most of the anti-social behaviour which the public worry about is caught by existing criminal law offences, such as criminal damage, public order and harassment laws. It is also said that it is not the lack of laws but the lack of political will and, I have no doubt, funding on the part of those responsible for enforcing those laws which renders them less effective than they should be. There are undoubtedly problems of court delays and not just with ASBO applications. However, the solution to that is surely not to remove civil liberty safeguards. Ironically, by making IPNAs easier to obtain than the old ASBOs, there is a real prospect that Clause 1 will slow courts down even further by clogging them with large numbers of IPNA applications. Some local authorities—notably Camden, which has a serious anti-social behaviour problem and has had considerable success with ASBOs—have expressed fear that this rebranding, as they call it, will not in the end prove an improvement.
In tabling these amendments, our concern is not with the Government’s attempts to make improvement to the present process for dealing with this sort of behaviour, which has broad support, but with proposing to do so effectively by placing injunctions on free speech and free movement without a court needing to be properly convinced of the need or the seriousness. If Clause 1 retained the definition of Section 1 in the Crime and Disorder Act, the current level of concern would simply not exist.
As it stands, a huge range of people and organisations from all parts of the political spectrum have already voiced serious disquiet. The Commons Home Affairs Committee said that Clause 1 is “far too broad”. The Joint Committee on Human Rights said that the nuisance and annoyance test,
“is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law”.
The noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who unfortunately cannot be in his place today, has provided a most helpful legal opinion from the coalition Benches, in which he says of “nuisance and annoyance”:
“The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law … In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
He also criticises the lack of a necessity test and describes the safeguards as “shockingly low”.
Even the Association of Chief Police Officers, which broadly supports the IPNA thinks the threshold is unrealistically low and advocates a return to the harassment, alarm and distress test and the addition of a necessity test, both of which would be achieved by our amendments. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch and countless other organisations and civil liberty groups, ranging right across the spectrum from the Christian Institute to the National Secular Society, have expressed their deep concerns about Clause 1. The three amendments tabled by the noble Lord, Lord Dear, and me seek to address their main concerns; there are other lesser ones. First is the standard of proof, which we say should be beyond reasonable doubt. Secondly, there is the absence of a necessity test, and, thirdly, the nuisance and annoyance threshold should be put back where it is at present with harassment, alarm and distress.
First, on Amendment 19A, the current ASBO legislation is applied by a magistrates’ court granting civil orders. When ASBOs were considered by the Judicial Committee of this House in 2002, it was held that the criminal standard of proof should determine whether anti-social behaviour had occurred. Given the huge impact such an order can have on an individual’s life and bearing in mind that an IPNA can make positive as well as negative requirements, we believe this standard must be retained. As the noble and learned Baroness, Lady Hale of Richmond, said, also in the Judicial Committee of this House, in 2008:
“There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof”.
We say this is one of them.
Secondly, the necessity test needs to be retained. The requirements of necessity and proportionality are enshrined in human rights law and it is important for them to appear in the Bill to reduce the risk of trivial applications and to help avoid unnecessary and disproportionate orders. Thirdly, in Amendment 20D the words “just and convenient” reflect the standard civil test and appear in the Bill. We believe that the higher test required by human rights law—“necessary and proportionate”—should be in Clause 1.
It is crucial that police, local authorities and the many other bodies which can apply for IPNAs can see for themselves in the statute the test that the court will be applying. This will focus minds and, we hope, reduce speculative, vexatious and inappropriate applications. Amendment 20A returns to the threshold test currently in use, “harassment, alarm and distress”. There is a real danger that if the currently proposed, worryingly low threshold is retained, we will create a situation every bit as bad as that under Section 5 of the Public Order Act, where the “insulting words” limb of the offence was used to silence unfashionable or politically incorrect speech. Noble Lords will remember that this House voted overwhelmingly and contrary to the direction of all party Whips to strike “insulting words” out of that legislation a year ago.
The present Clause 1 has united religious groups concerned with street preachers, children’s groups concerned about playground noise, and protest groups concerned that the temptation to seek IPNAs against inconvenient protesters, whether they be anti-frackers, anti-HS2ers, gay rights groups, Occupy or even the Countryside Alliance—in which I have an interest—will prove irresistible to people in authority. To take a test that works in one narrow set of circumstances, as the Government have done here, and try to apply it to the world at large is a recipe for unleashing a wave of unintended consequences. These three amendments are modest proposals that I hope will bring some real improvement and would not lead to the outrage that many have expressed about the current drafting. I beg to move.
Lord Lloyd of Berwick (CB)
My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.
Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.
Lord Faulks
My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.
The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route 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 outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.
The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.
We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.
By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.
The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.
With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.
In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.
Lord Harris of Haringey
My Lords, I find myself in the difficult position of agreeing with much of the excellent speech by my noble friend Lady Mallalieu and much of the speech just made by the noble Lord, Lord Faulks. The reason for that is the mess that this Bill is. The reality is that the original concept of anti-social behaviour orders was introduced because of a real, prevalent problem in many parts of this country. The problem outlined by the noble Lord, Lord Faulks, is that of people whose lives were being made a misery by the actions of others, but because they were often frightened, or did not think that it was appropriate or possible, they would never bring those matters in a formal complaint and would be very reluctant to give evidence. That is why the test was lowered from the criminal standard of proof.
Those in this House who have been elected members, whether at local council level or who have been Members of Parliament, will have had brought to them cases of inter-neighbour disputes that have gone on for years. You tell them, “Keep a diary, keep a list” and so on, and they come back two, four or six weeks later with a completed list, none of which would be sufficient if we were still operating under the old system of a criminal standard of proof. That is why the previous Government introduced anti-social behaviour orders. I do not think that anyone suggests that anti-social behaviour orders have all worked perfectly, but they made a real difference to the lives of very many people. The reason was that we were changing the way in which those actions could be brought and lowering the standard of proof.
The problem with what the Government are doing is not that they are trying to simplify the system or make it better but that they have swept away what has over time developed and then moved to this system of applying for an injunction, or IPNA. By changing the test to one of nuisance and annoyance, they have opened up the prospect of a lower standard of proof being applied in far broader areas. We can all add to the list of things that cause nuisance and annoyance. While it is true that Clause 4 limits the list of organisations which might apply for an IPNA, it does not deal with the circumstances in which there will be very powerful local lobbying about much lower levels of nuisance and annoyance. The regime will be applied to local authorities; it will be applied to local housing providers—and an interesting question is what a local housing provider is. Is it somebody who happens to rent out one room? In which case, can they apply willy-nilly for IPNAs against all and sundry in the local neighbourhood? I am sure that this issue has been addressed in the guidance but that I have just not read it yet. There will be all sorts of cases where people raise matters which at the moment would not qualify for the ASBO procedure.
The reason why we are debating this amendment is that the Bill has created these anomalies. It would be clearly obnoxious for injunctions to be issued in respect of trivial matters on the basis of this lower level of proof. Equally, we are in danger, for those very legitimate reasons, of throwing away all the progress that has been made in the past few years by reverting to the criminal standard of proof. I think of my time as a local councillor and my time on the London Assembly, where much of my constituency work related to anti-social behaviour issues. The difference that it made for the local authority or for the housing association to be able to pursue these matters as they were able to under anti-social behaviour legislation, provided relief for many people. That is not to say that there were not problems or that some places were not more reluctant and so on. I shall propose an amendment later which states that there should be some coherent planning locally as to what the arrangements should be for pursuing IPNAs in a particular area and that there should be an anti-social behaviour strategy in local areas, but we will come to that later. However, the important point is that, because the Government have made such wholesale changes and have then tried to force them into the single IPNA process, we are in danger of sacrificing the civil liberties or well-being of many people who were protected by the regime of anti-social behaviour orders.
Lord Morris of Aberavon (Lab)
My Lords, we are all grateful to my noble friend Lady Mallalieu for raising these matters. She has spelled out her concerns and anxieties about what might be unintended consequences. We should always pause and think, particularly with regard to Amendment 19C, when a standard lower than the usual criminal standard is sought to be imported. I am always nervous of including any test other than the usual one in a criminal court. The noble and learned Lord, Lord Lloyd, has done a good service to us here in spelling out—and I am sure that he is right—the two parts of the procedures: civil, in order to obtain the injunction, then the usual criminal one, where there has been a breach or an allegation of a breach. This should reassure those of us who are anxious—and I was anxious when I first read it—of importing any lower standard.
I appreciate the remarks of my noble friend Lord Harris, who has dealt with this in part. I invite the House to stand back and try to deal with the mischief that we are concerned with of unacceptable behaviour in closely-knit communities. For more than 40 years, I represented an industrial constituency with large housing estates. People would come to my surgeries—as they did with my noble friend Lord Harris, who was in a slightly different capacity but with the same problem—and ask: “What can we do? We have been to see the housing manager, the police and everyone we can think of and nothing happens”. Time after time, we were impotent.
Far more frequently than would be admitted, the problem was that people were not prepared to come forward and give evidence, because they had to live in that community after the event. That is the crux of it. We are dealing with a real mischief. This is a small change to what we might expect of a standard of proof before any sanctions are imposed, but there are well-hallowed precedents for doing it in this way. Provided one maintains the usual criminal standard for a breach of it, then I for one am satisfied with Amendment 19C.
Lord Greaves
My Lords, do the Government expect more or fewer people to be arraigned before the courts for injunctions under this new system, compared with people given ASBOs? Have they made an assessment of that? This is important because, we hope, the number of people who are given the new injunctions or who at the moment are given ASBOs, are a minority—quite a small one—of people who cause some kind of low-level anti-social behaviour in the sort of communities that the noble and learned Lord has been talking about.
Do the Government have an assessment of how the new system will affect the numbers who get to the end of the road and have one of these badges—if that is what they are—put upon them? Secondly—I thought about this while listening to the noble Lord, Lord Harris of Haringey—the fundamental thing is: what level of resources are on the ground to deal with these problems and to prevent people getting either the new injunctions or ASBOs? The harsh reality is that in many parts of the country at the moment, that resource is going down.
In my area, what people might think of as a crime and disorder partnership—we call it a community safety partnership—has been extremely successful in the towns and wards of the borough. One meeting that I try to go to each month as a ward councillor is called a PACT meeting—police and communities together. It is a group of residents who meet police and councillors in the ward each month to talk about these problems: local crime and particularly disorder and anti-social behaviour. It works. Sometimes, a handful of people turn up. Then, when something erupts in some of the streets, a lot of people turn up and it provides a focus for dealing with these problems. However, it requires the local police to have the time and resources to take part in such activity. It also requires the local authority’s anti-social behaviour staff to be there and to be prepared to get involved at the case, area and street levels. If it is in an area of social housing, it involves the social housing providers as well. Other people get involved as well.
In our part of the world, that system is being slowly withdrawn for purely financial reasons, as the police cannot afford to devote the resources to it that they have done. If the police are given a choice between relatively high-level and low-level crime, they will put more resources into high-level crime. They might also be given a choice between low-level crime and local disorder or the preventative work where the local neighbourhood teams go round to talk to people, getting to know the patch and its lads and lasses who are hanging around on the streets and might get into bother. The police might find diversionary activities for them, if they have the resources. If that is going on, the system will work, but once that is withdrawn, then all the IPNAs, ASBOs and anything else in the world will not solve the problem. The numbers will increase, because the numbers who get to that level will increase, but the problems on the ground will get worse.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make one brief point which follows on from that made by the noble Lord, Lord Greaves. At Second Reading, the Minister made a lot of the breach rates for ASBOs; he said that they were about 60%. The point that I made in my Second Reading speech was that, in my experience as a sitting magistrate, breach rates have declined over the past few years as ASBOs have been more appropriately introduced. I have checked my recollection with my colleagues and I think that they would agree with my comments. Why does the Minister think that breach rates will decline when he is proposing through IPNAs to reduce the burden of proof to a balance of probabilities, and to address nuisance and annoyance rather than “harassment, alarm and distress”? Those two changes are very likely to lead to an increase in the number of breaches, which seemed to be a fundamental point in his seeking to replace ASBOs. I know that later in this Committee there will be a proposal to run the two systems in parallel, which seems a sensible way forward while the IPNA is bedded in.
Lord Ramsbotham
My Lords, in principle I am very keen on the idea that Governments should lay down what should happen and leave the how up to local areas to decide, because there will obviously be different local conditions. I remember that fairly soon after the ASBO was introduced, there was considerable concern about what great differences there were in how it was being introduced in different parts of the country. It was shown that there was something of a postcode lottery in it. I suspect that we have heard less and less of that over time because people have got used to the ASBO.
One reason for that is because the ASBO was quite tightly defined; the definition of what amounted to an ASBO was there. What concerns me about the injunction is that I agree with the Joint Committee on Human Rights that,
“conduct capable of causing nuisance or annoyance to any person”,
is insufficiently precise. I fear that if there is no more precision in this initially, we shall have exactly the same as we had with the introduction of the ASBO: there will be a postcode lottery. If the injunction is to be enforced properly—I support the idea of it not being a criminal activity—there is a need to sharpen up the precision to prevent that and to give better guidance to the local authorities who will have to enforce it.
Baroness Smith of Basildon
My Lords, this has been an interesting debate. All speakers have sought to be helpful to the Minister, perhaps seeking to protect the Government from themselves by this amendment—they were certainly not trying to be a nuisance or annoyance in identifying so many difficult issues that arise here. So I do not expect to have an IPNA taken out against us but, on the balance of the judgment that is in the legislation before us, I suppose we should wait and see. This debate strikes at the very heart of the issue, and the contributions that we have heard today reflect the balance of opinion at Second Reading.
The noble Baroness, Lady Mallalieu, made a very powerful case and addressed a number of the concerns that were raised, including the concerns of those who have argued against the amendment. Like the noble and learned Lord, Lord Morris of Aberavon, I spent a number of years as an MP, although not as many as he did. Anti-social behaviour was then and remains a very serious issue. I recall that many of those dealing with the problem welcomed ASBOs, despite some of the failings and problems we have heard about, and I think that ASBOs have improved with time and experience. The test of “harassment, alarm and distress” was rightly a higher bar than we see before us today, because it recognises the seriousness of the issue, but it also recognises the penalties for breaches of the order. That is an important point to make in the context of this debate.
I find it very interesting that, in the Second Reading debate and again today, the anti-social behaviour orders gained support from distinguished Members of your Lordships’ House with expertise in law, policing and the magistracy. There were criticisms, and I still have some criticisms about the implementation of anti-social behaviour orders and measures. There are those who do not understand how seriously and dreadfully victims of anti-social behaviour are affected. Unless you have suffered yourself or have spoken to people who have been through that totally debilitating experience, it can be hard to understand how that constant, unrelenting pressure of harassment, intimidating behaviour or excessive noise can leave people terrified of living in their own homes and very distressed. I remember one lady who I spoke to at great length on many occasions. She was so distressed by what some might regard as kids mucking around, but very seriously so, that she was terrified to live in her own home. We are now seeing ASBOs being more appropriately used and we have seen a reduction, as we have heard, in their breaches.
We have also heard that there can be injunctions for anti-social behaviour under housing legislation and that the test of causing nuisance and annoyance already exists, but that is in very limited and specific circumstances. The noble Baroness, Lady Mallalieu, made that very clear in her comments. Anti-social behaviour injunctions were brought in in 2003 and have been used sensibly and wisely since then. Today, we have all had correspondence from housing associations—in many cases, very similar letters—explaining why they want to retain the power they have and explaining the benefits they have been able to bring to their tenants, in many cases, very vulnerable tenants, because of those powers. Their letters highlight a problem referred to by the noble Lord, Lord Harris, a few moments ago, and by others; a problem which the Government have created by trying to rationalise the number of orders, procedures and interventions that can be taken against anti-social behaviour. Clearly, housing associations with very vulnerable tenants welcome the powers they have, but these are not appropriate for every single case of anti-social behaviour. We are not against all forms of injunctions but we are against making this test—on the balance of probability, for nuisance and annoyance—the test that should be applied in all cases where somebody complains about something that they consider to be anti-social behaviour.
In some cases there has been a misunderstanding that only small areas are covered; perhaps only social housing estates or council estates. In fact, anti-social behaviour, and certainly the test that the Government wish to apply, of nuisance or annoyance, is much wider spread than that. In many cases, injunctions to prevent nuisance and annoyance can involve similar and indeed wider matters than those raised in current ASBO applications. They can address relatively minor issues involving nuisance neighbours and minor disorder. Because as an order an ASBO can represent a serious slight upon the reputation of a respondent, as well as carrying serious consequences for breach, it is completely inappropriate for something of that seriousness to have a lower standard of proof to apply.
Lord Taylor of Holbeach
My Lords, I hope that I am never anything but positive. As I made clear at Second Reading, the provisions of the first six parts of the Bill, which deal with anti-social behaviour, are about protecting victims of anti-social behaviour. It was good to hear noble Lords across the House recognising that that is what lies at the heart of what we are trying to achieve here. It ensures that police, local authorities and all those other agencies that are listed in the Bill can, where necessary, take swift action to bring respite to both individual victims and communities. The noble Baroness, Lady Mallalieu, is right: the central purpose of the new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates. It is essential for the threshold to be set at the right level for that to happen.
The amendments seek to retain the key features of the anti-social behaviour order that the Government are seeking to replace. I understand the arguments and the concerns that a number of noble Lords have expressed about the test of the new injunction and I have seen the legal opinion given by my noble friend Lord Macdonald of River Glaven, but I am sure it will not be a surprise that I am going to explain why we do not agree with these amendments and why I do not agree with my noble friend.
I fear that the effect of these amendments would be to weaken the effectiveness of the new injunction in providing relief to victims and communities. Amendment 19C seeks to replace the lower, civil standard of proof—on the balance of probabilities—with the higher, criminal standard of proof beyond reasonable doubt. Amendment 20A seeks to replace the “nuisance or annoyance” test for the IPNA with the anti-social behaviour test of “harassment, alarm or distress”. Finally, Amendment 20D seeks to revert from the requirement that it must be “just and convenient” to grant an IPNA to the test of “necessary and proportionate”.
As I have said, our reforms are about putting victims first. This means giving front-line professionals the right powers to protect victims and communities effectively from anti-social behaviour. The IPNA has been designed as a purely civil power which can be obtained quickly through the courts, to protect the public and stop an individual’s behaviour escalating.
It may interest noble Lords that the test of nuisance or annoyance was introduced in the Housing Act 1996 and subsequently amended by the Anti-Social Behaviour Act 2003 to extend to conduct capable of causing nuisance or annoyance. This test is used for the anti-social behaviour injunction. It is well recognised by the courts; they know it and are familiar with it. They apply it on a daily basis when deciding whether to grant injunctions to stop or prevent anti-social behaviour.
The term is also used in a number of other statutory contexts. For example, in Section 13 of the Criminal Justice and Police Act 2001 which relates to alcohol consumption in designated public places; in Section 9A of the Housing Act 1988 in respect of proceedings for possession; in Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 in respect of street trading consents; and in Section 142 of the Highways Act 1980 in respect of obstruction of highways. I could go on, but I have already demonstrated, with this list, that “nuisance or annoyance” is a widely used, statutory term that is understood by both front-line professionals and the courts.
It is therefore not surprising that the Law Society fully supports the use of the test in Part 1. Its recent briefing says:
“The Society strongly suggests that the test is retained and that judges are allowed to exercise their discretion and considerable experience in dealing with these matters. The test is already familiar to the courts and other partners working with families and offenders”.
That this is a well established test has been true for some time. When it was being considered in your Lordships’ House in 2003, the noble Lord, Lord Bassam—who was then Home Office Minister and is now Opposition Chief Whip, but who is unfortunately not in his place at the moment—made a similar point. He said:
“‘Nuisance or annoyance’ is a well-established legal test which the courts are perfectly comfortable to use”. [Official Report, 23/10/03; col. 1791]
That was true then and it is true now, which is why the Government believe—as the previous Government did—that this is the right test to use. To retain the test that applies for the ASBO, as these amendments seek to do, would increase the evidential burden on front-line professionals who are working hard to protect victims and deter perpetrators. It would hinder them in providing respite to victims and communities more quickly. That this will be the consequence of these amendments has been put clearly in the briefing submitted to your Lordships by the Social Landlords Crime and Nuisance Group, which says,
“we consider that these amendments are unnecessary and would, if carried, lead to unintended consequences and seriously disadvantage victims. They would also have significant adverse financial and other resource implications for agencies”.
In relation to the amendment in the name of the noble Baroness, Lady Mallalieu, to apply the criminal standard of proof, their briefing note goes on to say:
“Raising the burden of proof to beyond reasonable doubt will effectively remove the ability to use professional evidence or hearsay, something which conflicts directly with the core purpose of the Bill, to deliver better outcomes for victims. To do so will make it extremely difficult to prove matters to the criminal standard without the victim giving evidence first-hand”.
These are telling points, which were reinforced by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon. They were also shared by the Chartered Institute of Housing, which also published a briefing note for your Lordships.
The central purpose of this new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates to more serious levels or to criminality. That is in the interests of victims and perpetrators. To wait until these higher tests can be met would stop professionals from taking formal court action where it is necessary and from acting when there is more chance of the perpetrator addressing the underlying causes of their behaviour.
As to fears that injunctions will be handed out like confetti to stop children skateboarding or playing football in the street, or to silence street preachers giving public sermons, I can only quote again from the Law Society, which said:
“The Law Society supports retaining the legal test for the Injunction to Prevent Nuisance and Annoyance … as currently drafted in the Anti Social Behaviour Crime and Policing Bill. We do not agree with those who claim the test is too weak and should be strengthened by imposing conditions such as ‘seriousness’ or ‘malice’. Some are worried that the test is too weak and could result in preachers, buskers and even carol singers finding themselves subject to an injunction but the Law Society do not agree with this interpretation”.
Neither do I. The Law Society would not support these provisions if it had concerns that they would or could be used to stop children playing or people exercising their legitimate rights to freedom of assembly or freedom of expression.
I fully share the noble Baroness’s desire to ensure that these powers are used reasonably and proportionately. Significant safeguards are already provided for in the Bill, not least that an injunction must be authorised by a court. I am ready to consider further whether it would be appropriate to provide in the Bill that the court must consider, in the light of all the relevant circumstances, that it is reasonable to grant an injunction. I therefore urge noble Lords to listen to the Law Society and to the front-line professionals who are telling us, loud and clear, that these amendments are not necessary and would significantly weaken the provisions in the Bill.
If this amendment was made, it would make no difference at all to children doing the normal playful things that children do or to street preachers sermonising on the high street. However, it would make a real and detrimental difference to the victims of anti-social behaviour, who would not get the quick respite they need from those who make their lives a misery. The amendment loses sight of the victims of anti-social behaviour, who should be our first consideration. For that reason I urge the noble Baroness to withdraw it.
Lord Greaves
My Lords, before the noble Baroness does that, will the Minister answer the question that I asked? Do the Government believe that by significantly reducing both the level of the test and the level of proof required, there will be more IPNAs than there are ASBOs at the moment, and if not, why not?
Lord Taylor of Holbeach
I apologise to my noble friend for not answering his question. I was asked two questions—the noble Lord, Lord Ponsonby, also asked one. I was in a hurry because I am aware that we have a busy day. However, I can quote from the published impact assessment:
“The estimated volume of Crime Prevention Injunctions issued is assumed to follow the orders they replace with increase of 5 per cent in comparison with the baseline. It is not thought that there will be a large widening of availability due to the lowering of the threshold of proof, as this is only lower than the ASBO and not the ASBI which forms the majority of estimated applications for the Crime Prevention Injunction”.
I turn to the matter raised by the noble Lord, Lord Ponsonby. Positive requirements in the IPNA will help people to address the underlying causes of their anti-social behaviour. We believe that this will reduce breach rates in future.
Baroness Mallalieu
My Lords, I thank the positive Minister for his response, but I am bound to say that if that was positive, I would like to hear him in a negative mood. However, I thank him for the crumb of comfort in relation to a possible amendment on reasonableness. I also thank all those who have taken part in the debate.
A number of noble Lords referred to the Housing Act and the reasons for the much reduced requirements for an ASBI, the injunction allowed under that Act. The reason—as we all understand it, and as others have said—was the very great difficulty of persuading people in close-knit communities to give evidence against their neighbours and people they knew out of fear. That was the reason for the particular wording of that Act, which a number of noble Lords referred to and said worked perfectly well in that context. However, in each context where that lesser definition has been used there have been very clear statutory limits on the circumstances. What the Government are proposing to do now is to open that definition and apply it to everybody in all circumstances. They are apparently going to allow what must be an imprecise and subjective test to hold sway, and not in any way in the circumstances to which the noble and learned Lord, Lord Morris of Aberavon, and others referred, of close neighbours and fear.
The guidance, which was referred to not by the Minister in his winding-up speech but by others, also troubles me. Although there is already guidance in draft, and no doubt more is being prepared, there should be, whatever guidance comes later, clarity on the face of the Bill. While it is reassuring to hear that trivial matters are not going to be taken up and pursued, that is not something that anybody looking at the Bill itself can be confident about. The Bill should contain clear definitions. It should contain the important guidance—what has to be proved—but at the moment it does not.
There is no question of a Division in the House tonight but I say to the Minister that this is undoubtedly a matter to which we will return at a later stage. I very much hope that in addition to being positive he will be—as we know he is on other matters—fair and open-minded, that he will be prepared to hear further argument between now and Report and that, on reflection, he himself will table some amendments that reflect and go some way to meeting the anxieties raised tonight. With that in mind, I beg leave to withdraw the amendment.
Commonwealth Heads of Government Meeting and Philippines
(11 years ago)
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The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a statement on the disaster in the Philippines and the Commonwealth meeting in Sri Lanka. Ten days ago a category 5 super typhoon brought massive destruction across the Philippines, where the city of Tacloban was devastated by a tidal wave almost two and a half metres high. The scale of what happened is still becoming clear, with many of the country’s 7,000 islands not yet reached or assessed. But already we know that more than 12 million people have been affected, with more than 4,400 dead and more than 1,500 missing, including a number of Britons. This disaster follows other deadly storms there and an earthquake that killed 200 people in Bohol last month. I am sure the thoughts of the whole House will be with all those affected, their friends and their families.
Britain has been at the forefront of the international relief effort. The British public have once again shown incredible generosity and compassion, donating £35 million so far, and the Government have contributed more than £50 million to the humanitarian response. In the last week, HMS “Daring” and her onboard helicopter, an RAF C17, and eight different relief flights, have brought essential supplies from the UK and helped get aid to those who need it most. An RAF C130, a Hercules, will arrive tomorrow and HMS “Illustrious” will also be there by the end of this week, equipped with seven helicopters, water desalination and command and control capabilities. Beyond the immediate task of life-saving aid, the people of the Philippines will face a long task of rebuilding and reducing their vulnerability to these kinds of events. Britain will continue to support them every step of the way.
I turn to the Commonwealth, and then to the issues in Sri Lanka. The Commonwealth is a unique organisation representing 53 countries, with one-third of the world’s population and one-fifth of the global economy. It is united by history, relationships and the values of the new Commonwealth charter, which we agreed two years ago in Perth. Britain is a leading member. Her Majesty the Queen is the head of the Commonwealth and His Royal Highness the Prince of Wales did our country proud acting on her behalf and attending last week.
As with all the international organisations to which we belong, the Commonwealth allows us to champion the values and economic growth that are so vital to our national interest. At this summit, we reached important conclusions on poverty, human rights and trade. On poverty, this was the last Commonwealth meeting before the millennium development goals expire. We wanted our Commonwealth partners to unite behind the ambitious programme set by the United Nations High Level Panel, which I co-chaired with the Presidents of Indonesia and Liberia. For the first time, this programme prioritises not just aid but the vital place of anti-corruption efforts, open institutions, access to justice, the rule of law and good governance in tackling poverty.
On human rights, the Commonwealth reiterated its support for the core values set out in the Commonwealth charter. Commonwealth leaders condemned in the strongest terms the use of sexual violence in conflict, an issue championed globally by my right honourable friend the Foreign Secretary. We also called for an end to early and forced marriage and for greater freedom of religion and belief. We committed to taking urgent and decisive action against the illegal wildlife trade ahead of the conference in London next year. Britain successfully resisted an attempt to usher Zimbabwe back into the Commonwealth without first addressing the deep concerns that remain about human rights and political freedoms.
The Foreign Secretary and I also used the meeting to build the case for more open trade and for developing our links with the fastest growing parts of the world. The Commonwealth backed a deal at next month’s World Trade Organisation meeting in Bali that could cut bureaucracy at borders and generate $100 billion for the global economy. Before and after the summit in Sri Lanka, I continued to bang the drum for British trade and investment. I went to New Delhi and Calcutta in India before heading to Sri Lanka, the third time I have visited India as Prime Minister, and I went from the summit to Abu Dhabi and Dubai where Airbus agreed new orders from Emirates and Etihad airlines that will add £5.4 billion to the British economy. These orders will sustain and secure 6,500 British jobs, including at the plants in north Wales and Bristol, and open up new opportunities for the Rolls-Royce factory in Derby.
The previous Labour Government agreed in late 2009 to hold the 2013 Commonwealth meeting in Sri Lanka. That was not my decision, but I was determined that I would use the presence of the Commonwealth and my own visit to shine a global spotlight on the situation there, which is exactly what I did. I became the first foreign leader to visit the north of the country since independence in 1948. By taking the media with me, I gave the local population the chance to be heard by an international audience. I met the new provincial Chief Minister from the Tamil National Alliance, who was elected in a vote that only happened because of the spotlight of the Commonwealth meeting. I took our journalists to meet the incredibly brave Tamil journalists at the Uthayan newspaper in Jaffna—many of whom have seen their colleagues killed, and have themselves been beaten and intimidated.
I met and heard from displaced people desperately wanting to return to their homes and their livelihoods. As part of our support for reconciliation efforts across the country, I announced an additional £2.1 million to support demining work in parts of the north, including the locations of some of the most chilling scenes from Channel 4’s “No Fire Zone” documentary.
When I met President Rajapaksa, I pressed for credible, transparent and independent investigations into alleged war crimes. I made it clear to him that if these investigations are not begun properly by March, then I will use our position on the UN Human Rights Council to work with the UN Human Rights Commissioner and call for an international inquiry.
No one wants to return to the days of the Tamil Tigers and the disgusting and brutal things that they did. We should, I believe, show proper respect for the fact that Sri Lanka suffered almost three decades of bloody civil conflict, and that recovery and reconciliation take time. But, as I made clear to President Rajapaksa, he now has a real opportunity, through magnanimity and reform, to build a successful, inclusive and prosperous future for his country, working in partnership with the newly elected Chief Minister of the Northern Province. I very much hope that he seizes this opportunity.
Sri Lanka has suffered an appalling civil war, and then of course suffered again from the 2004 tsunami. But it is an extraordinary and beautiful country with enormous potential. Achieving that potential is all about reconciliation. It is about bringing justice and closure and healing to this country, which now has the chance, if it takes it, of a much brighter future. That will only happen by dealing with these issues and not ignoring them.
I had a choice at this summit—to stay away and allow President Rajapaksa to set the agenda he wanted, or to go and shape the agenda by advancing our interests with our Commonwealth partners and shining a spotlight on the international concerns about Sri Lanka. I chose to go and stand up for our values and do all I could to advance them. That was, I believe, the right decision for Sri Lanka, for the Commonwealth and for Britain. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Royall of Blaisdon (Lab)
My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by the Prime Minister in the other place.
Our thoughts are with the people of the Philippines as they struggle to deal with the devastation of Typhoon Haiyan. More than 12 million people have been affected by the typhoon—more than 4 million of them children. Nearly 3 million have lost their homes, and more than 4,000 are believed to have lost their lives, including a number of British citizens. The pictures we have seen are of terrible devastation. As so often happens when disaster strikes anywhere in the world, the British people have reacted with remarkable compassion and generosity. I am sure that, like me, this House is proud of the way in which our nation has responded. So far £35 million has been donated by the British public through the Disasters Emergency Committee.
I also pass on thanks from these Benches to our forces on HMS “Daring” and HMS “Illustrious” for the work that they are doing to help with disaster relief. I commend the leadership of the Prime Minister and the Secretary of State for International Development in providing £50 million in aid. We need to see the same from other countries, as the UN appeal has only a quarter of the funds it needs. Can I ask the noble Lord the Leader of the House what actions the Government are taking to encourage other countries to commit and free up resources as quickly as possible to the Philippines?
It is also the case that serious damage sustained to airports, seaports and roads continue to present major logistical challenges for the emergency response. Can I ask the Leader of the House what steps are being taken to ensure that humanitarian relief is reaching those in very remote and isolated areas who have been worst affected by the typhoon?
Turning to the Commonwealth Heads of Government Meeting, I welcome the conclusions of the communiqué on development, global threats and challenges, and programmes promoting Commonwealth collaboration. I am pleased that Britain was steadfast in its attitude towards Zimbabwe's membership of the Commonwealth and I back what the Prime Minister had to say about trade. Indeed, the welcome orders for the airbus are a shining example of the way in which jobs and trade benefit from European co-operation. The Commonwealth is—and, we believe, should remain—a vital institution that helps to protect the interests and promote the values of its united and diverse membership. At its best, the Commonwealth summit gathers together 53 countries seeking to promote common values, including democracy, accountability, the rule of law and human rights.
This House is united in its abhorrence of terrorism and in recognising that what happened in Sri Lanka, particularly towards the end of the conflict in 2009 when tens of thousands of innocent civilians were murdered, totally failed the test of those values. It was for that reason, at the 2009 Commonwealth summit, that the last Labour Government blocked the plan for Sri Lanka to host the summit in 2011. As the current Foreign Secretary told the Foreign Affairs Select Committee:
“The UK made clear … during the 2009 CHOGM … that we would be unable to support Sri Lanka’s bid to host in 2011”.
Delaying the hosting of the summit until 2013 was intended to allow time for the Sri Lankan Government to show progress on human rights, but that has not happened. Indeed, the situation has got worse, not better. When he attended the summit in 2011, the Prime Minister could have acted precisely as the Labour Government had done in 2009.
I should like to put one or two questions to the noble Lord the Leader. First, the Deputy Prime Minister said in May to the other place that,
“if the Sri Lankan Government continue to ignore their international commitments in the lead up to the Commonwealth Heads of Government meeting, of course there will be consequences”.—[Official Report, Commons, 15/5/13; col. 634.]
Can the Leader tell the House what those consequences were?
Secondly, at the summit on Friday, the Prime Minister called for the Sri Lankan Government to initiate, by March, an independent inquiry into allegations of war crimes. However, by Sunday, President Rajapaksa had already appeared to reject this. The UN human rights commissioner called two years ago for an internationally led inquiry and we have supported that call. Is not the right thing to do to commit now to build the international support necessary for that internationally led inquiry?
Thirdly, after this summit, President Rajapaksa will be chair of the Commonwealth for the next two years, and that includes attending the Commonwealth Games. Can the Leader say whether during the summit the Prime Minister had any discussions with other countries about whether the President was an appropriate person to play that role?
Finally, the Prime Minister of Canada and the Prime Minister of India decided not to attend the summit. In explaining his decision, Prime Minister Harper said:
“In the past two years we have ... seen ... a considerable worsening of the situation”.
While I naturally accept the good intentions of the Prime Minister, I wonder whether Prime Minister Harper and Prime Minister Singh were not right to believe that the attendance of Heads of Government at the CHOGM would not achieve any improvement or prospects for improvement in human rights within Sri Lanka.
The legacy of human rights abuses in Sri Lanka is in contradiction to the good traditions of the Commonwealth. We believe that we cannot let the matter rest. Britain must do what it can to ensure that the truth emerges about the crimes that were committed so that there can be justice for those who have suffered so much. When the Government act to make that happen, we will support them.
Lord Hill of Oareford
My Lords, first, I thank the Leader of the Opposition for her support for the action that the British Government have taken so far to provide help in the Philippines. I noted in particular the support that she gave for our troops and the work that they are doing, and for the generous response of the British public in providing charitable help. I think that, as the noble Baroness said, other countries will need to do more to make sure that the commitments that have been made are honoured. The Government will work, through the Foreign Office and DfID, to try to make sure that they fulfil those commitments and follow the kind of lead that the British Government have taken.
The noble Baroness was also right to emphasise the importance of humanitarian relief reaching the remote areas, where there is obviously a particular problem. I hope that HMS “Illustrious”, with its helicopters, will help to deliver aid more readily to such areas, along with the United States carrier in the area, which is providing more capacity for lifting and for getting aid to those remote places. The noble Baroness is right to remind us of that. I was glad of the support that she gave for the communiqué and the commitments in it, and I am grateful for her support for the stance that the British Government took on Zimbabwe.
I turn to some of the noble Baroness’s specific questions and the Prime Minister’s decision to go to this CHOGM. In essence, he went for two reasons, and I happen to think that he was right to do so for both. The first was to lend his support and encouragement for the general work that the Commonwealth as a whole is trying to do to take forward its agenda on the development of human rights and so on. The second, as he has argued very forcefully and, I think, convincingly, was to bring more pressure to bear and to shine a spotlight on the awful things that appear to have happened in Sri Lanka.
I am not sure how he would have been able to prosecute that case if he had not been there. To take what is perhaps a trivial example, we would not have been having this discussion and this Statement today if Britain had chosen to sit on her hands. Therefore, I think that it was the right decision. If one looks at the political and media coverage to date, the profile that the summit has achieved over the past few days is far greater than would have been the case if my right honourable friend had not been there.
On the other specific questions that the noble Baroness asked me, the Prime Minister pressed the case for an independent, credible and transparent inquiry to start by March. We will continue to build on the work started at CHOGM to maintain pressure on the Sri Lankan Government for that independent inquiry to get under way. The Prime Minister was absolutely clear that, if that does not happen, he will use his good offices through the UN to press for an international inquiry. That obviously remains a possibility should progress not be made.
Regarding whether President Rajapaksa is an appropriate person to be chair-in-office, the noble Baroness will know that the whole basis on which the Commonwealth proceeds is by consensus. There is no precedent at all for the removal of a member state from the chair-in-office. As it happens, there is no formal role for the chair-in-office following the CHOGM other than chairing the Commonwealth Foreign Ministers meeting in September. The Commonwealth is effectively run by the Secretary-General and not by the country that happens to be in the chair. As I said, there is no precedent for removing a member state. The decision was effectively taken back in 2009 and, given that it is an institution that proceeds on consensus, there was no prospect at all of that being unravelled.
However, I come back to the point that lay behind the noble Baroness’s final question concerning whether it was right for the Prime Minister and the British Government to be represented there, as opposed to the stance that a couple of other countries took. For the reasons that I have already given, I contend that it was the right decision both for the Commonwealth and for shining a spotlight on the situation in Sri Lanka.
Lord Howell of Guildford (Con)
Does my noble friend accept that, despite the perfectly understandable concerns about human rights issues in Sri Lanka, the visit of the Prime Minister, my right honourable friend Mr Cameron, did a huge amount of good both in focusing on the issues and, indeed, in helping to promote trade and investment with a rapidly expanding pattern of economic dynamism throughout the modern Commonwealth? Does he also accept that the words of His Royal Highness Prince Charles, who said that the Commonwealth was a means of bringing a “touch of healing” to a troubled world, were extremely apposite? Does he therefore conclude that the mugwumps, including the Financial Times and the British Labour Party, who argued that the Prime Minister should not go look pretty silly?
Will my noble friend also explain to the noble Baroness that at Perth in 2011 there was absolutely no chance of reopening the Colombo decision, because it had been settled at the 2009 meeting, which was attended by Gordon Brown, the then British Prime Minister? It was agreed that there should be a postponement but that the decision for 2013 should be locked in. It is all very well after the event saying that somehow the decision should have been reopened. It could not have been; it was settled in Trinidad in 2009. Will he explain that to the noble Baroness opposite? I think that those opposite are experiencing some embarrassment that they suggested that Mr Cameron should not go when it was obviously wise for him to do so. He did a lot of good for us, for the Commonwealth and, indeed, even for Sri Lanka.
Lord Hill of Oareford
I obviously agree with my noble friend about the contribution made by the Prime Minister, particularly as far as the point about trade is concerned. There is about £250 billion worth of trade every year between Commonwealth countries, and any progress that we can make to encourage that to be taken forward can be only for the good. As for my noble friend’s request to explain to the noble Baroness, Lady Royall, certain events that happened in 2009, I do not think that I could do any better than my noble friend.
Lord Alton of Liverpool (CB)
My Lords, given what the Minister has said to the House about the response of both the public and the British Government to the people of the Philippines, does he not agree that, in the light of the long disputes that have taken place between China and the Philippines, this would be an admirable opportunity to draw China in to the relief operations? Does he further agree, given the response that was made to China at the time of the Szechuan earthquake, that these catastrophes can be times, to use a phrase used elsewhere in the Statement, for healing and reconciliation?
When discussions took place about the reference to the Human Rights Council of the atrocities that occurred in Sri Lanka, did any discussion take place of the model used in South Africa of a justice and truth commission to examine what took place as an opportunity for both sides to come to terms with the depredations that have occurred there?
Lord Hill of Oareford
On the first point, I agree with the noble Lord that these awful events could provide an opportunity for a little bit of healing. I hope that other nations will take part in providing help to the Philippines. As far as the detail of the conversations is concerned, I am not sure which parallels or analogies were raised. I am sure that it was the case, however, that some of our experience in Northern Ireland—the difficult times that we went through and the lessons that we learnt in trying to make progress there—were raised and would have been apposite. If there is anything further that I can find out for the noble Lord, I will certainly let him know.
Lord Anderson of Swansea (Lab)
My Lords, the Minister was right to say that the core values of the Commonwealth are set out in the charter: human rights and democracy. Does he not at least agree that those aspirations become much less credible when, for the next two years, the lead country in the Commonwealth will be Sri Lanka? It is not just a formal matter: Sri Lanka will also chair the Commonwealth Ministerial Action Group, which deals with penalties against those who default. Here is a major defaulter being in charge of judgment against the others.
The Minister will see that a number of Commonwealth countries were mentioned in the communiqué: Belize, Cyprus and so on. Why was there no mention of overseas territories such as Gibraltar and the Falklands, when surely one could look for some Commonwealth solidarity in such important matters as Gibraltar and the Falkands? Did the Prime Minister in any way try to influence his colleagues to show solidarity in respect of these two very important overseas territories?
Lord Hill of Oareford
My Lords, on the first point, no one is claiming—I am not—that making progress on human rights across the Commonwealth is a straightforward process. I think, however, that it helps that the charter that was signed in March has that commitment. The nature of our meetings is that we just have to keep pushing forward and trying to make progress. I do not claim that it is straightforward, but I claim that Britain being there—flying the flag for those values, arguing for them and shining a spotlight on the case of Sri Lanka where some of them are in question—was the right thing to do. As for the noble Lord’s specific question about Gibraltar, I do not have any information readily to hand, but if there is something that I can dig out for him, I will happily do so.
Lord Steel of Aikwood (LD)
On the Philippine tragedy, I agree with the Leader of the House and the Leader of the Opposition that the response of the British public to this disaster has been truly heartwarming and really generous. I also commend the Government and the Armed Forces for the efforts they are making to add to the relief of that terrible tragedy.
On the Commonwealth meeting, does my noble friend agree that it was not only unfortunate, but almost inevitable, that the coverage of this conference was dominated by conditions inside Sri Lanka itself? In order to avoid that happening again, would it not be a good idea if the heads of Government were to make it clear among themselves and to the Secretary-General that future heads of Government meetings will only be held in those Commonwealth countries that abide by what he called the core values of the Commonwealth charter? Does he agree that if that policy decision were made in advance, that in itself would help the promotion of human rights and democratic values throughout the Commonwealth?
Lord Hill of Oareford
I am grateful to my noble friend for his comments on the Philippines. On the Commonwealth conference, I would argue that going to Sri Lanka—and I obviously understand the points he makes about the anxieties that many people have about the situation there—will enable us and the rest of the world to have a greater focus on the problems there and help to address them. Therefore, while I understand the general point he made about wanting to work to ensure that all Commonwealth countries abide by basic human rights, in this case, having the CHOGM there has helped to take forward the case of the human rights of those people, particularly those living in the north of the island.
Lord Jay of Ewelme (CB)
My Lords, I think that the Prime Minister was right to go to Sri Lanka; it is much better to confront difficult issues than to duck them. It is equally important, however, that now that the issue has been confronted, the confrontation should continue. Will the Leader of the House say a little bit more about how the Prime Minister intends that the pressure on Sri Lanka over human rights be continued in the year or two ahead? Was there support for that pressure from within the Commonwealth itself?
Lord Hill of Oareford
At the moment, I am not able to add any specific information as to the next steps that will be taken. This was the beginning of a process initiated by the Prime Minister in Sri Lanka just a few days ago. He made clear, for instance, the need for an independent inquiry to say that if there are not steps taken and some progress made by March, the next step would be an escalation through the UN, pressing for an international inquiry. Other steps have started: the establishment in August, for example, by the Sri Lankan Government of a commission into the disappearances. That would be another initiative—another piece of work—that we would all want to observe to see what progress is made. There will be a number of strands that we will need to observe as the months go on, but what I can certainly say is that, having been there and seen for himself the situation in the north of the island—the first head of a foreign Government to go there for 65 years—my right honourable friend will do everything he can to keep up the sort of pressure for which the noble Lord is calling.
Lord Soley (Lab)
My Lords, may I repeat the point made a few moments ago by the noble Lord, Lord Steel, and ask for a more positive reply? It is possible—this should be outside of party politics here—that in future, any chairman of such a conference must abide by the charter of the Commonwealth. Surely he could take that suggestion back to the Prime Minister. Secondly, perhaps the Minister could tell me whether he agrees that Britain, along with other Commonwealth countries, could do a lot more to advance the rule of law in Sri Lanka for both communities and particularly in relation to the protection of journalists, who are very much at risk at the moment? I declare an interest as the chairman of the Good Governance Foundation.
Lord Hill of Oareford
On the point made by the noble Lord and my noble friend Lord Steel, I am sure that people will learn from some of the decisions taken in the past. As has already been alluded to, a lot of the decisions about where these things will take place are made many years out. The Commonwealth is an institution which proceeds on the basis of consensus, so the notion that Britain alone is able to determine these things clearly is not the case. I understand the noble Lord’s point about the need for continuing an emphasis on the importance of human rights. I did not mean to imply any negative response to that. I very much agree with the importance of that which has been encapsulated in the Commonwealth charter.
I believe we would all share the noble Lord’s concerns about the situation that has been affecting journalists in Sri Lanka. Partly for that reason, my right honourable friend the Prime Minister was very keen to have journalists with him on his visit to the north. Again, he has made clear that the eyes of the world will be on Sri Lanka, in particular the way in which journalists there are treated in the wake of that visit to make sure that proper standards are upheld.
The Lord Bishop of Birmingham
My Lords, I thank the Government for this remarkable reminder of the generosity of the British people and DEC, and for the commitment of “HMS Daring” and other support. “HMS Daring” of course is connected with Birmingham, the most landlocked city in Britain. Perhaps I may ask the Leader of the House about not just the emergency phase, which is so important, as regards food, water and shelter, but the recovery phase in disasters such as this where we are looking for housing, infrastructure and livelihood. In looking further ahead than just the natural response to the ghastly situation, will he take into account two matters? One was raised by the Philippines climate change commissioner, Yeb Sano, at the UN Climate Change Conference in Warsaw. He said, “Typhoons such as Haiyan”—
or Yolanda as it is called in the Philippines—
“and its impacts represent a sobering reminder to the international community that we cannot afford to procrastinate on climate action”,
and that the emergency response should look into the much more serious long-term effects of these kinds of climate changes.
The second matter is the understanding that is growing in the use of quick aid into resilience. For example, Tearfund investigated the Government’s expenditure in Malawi. It noted that for every £1 spent, £24-worth of infrastructure, resilience, and the ability to cope not just with ordinary difficulties but with disasters can be achieved. Will the Government please take into account these longer-term matters so that we are stronger when the next time comes?
Lord Hill of Oareford
The right reverend Prelate makes an extremely wise point about the long-term future. I am grateful for what he says about the short-term response, although, as he rightly says, a lot of that is down to the natural generosity and human feeling of the British people in terms of their charitable response. The Government are glad to have been able to play their part alongside them in increasing the amount of aid that they have made available.
The right reverend Prelate is obviously also right that there is a difference between the short-term crisis response and what one can do longer term. As he has said, DfID was working with the Philippine Government prior to the emergency on some of the issues which he mentioned which come from climate change. Certainly, helping those countries invest in homes and infrastructure that in future would be better able to support some of these natural disasters is the wise thing to do. I am sure that through the work of DfID, the Government will continue to reflect on that.
Lord Naseby (Con)
As chairman of the all-party group I welcome enormously that the Prime Minister went to Colombo. Is my noble friend aware that the reaction from the nearly 500,000 Sri Lankans living in the UK, whether they be Sinhalese, Tamil or Muslim, has not been at all positive? My e-mail has virtually collapsed because people are deeply concerned at the way in which the Prime Minister raised, in their view, an unbalanced view of what progress had been made, particularly the manner in which it was delivered to the President of Sri Lanka? I have to say that I partially share that concern.
As we move forward, which is the key to all this, does my noble friend, as he sits in the Cabinet, recognise that it has been only four years and that in those four years there is peace? There are no bombs and you can go where you like. You do not have to have your cards with you and there are no checkpoints. That is enormous progress in four years. After all, we took nine years to get rid of rationing. Even as one of those who suffered from the bombing in London, we did not succeed in producing an ideal situation within four years.
Perhaps I may bear on the House for a moment; two dimensions are involved. First, we now know the number of people who disappeared, of whom, sadly, some 600 were children, who I suspect are child soldiers. We now know that. There is a commission. I think that it would be great progress if the International Committee of the Red Cross were to join that commission, because it has helped in producing the numbers.
Secondly, we now have established the numbers who were killed. We know from the Tamil teachers who did the audit that the number is somewhere around 9,000, which is a number that we can handle. Will my noble friend please give maximum encouragement to the processing of those 9,000 to make sure that we find out exactly who they were?
Lord Hill of Oareford
My Lords, I certainly accept the point. The Prime Minister was very clear in his Statement that one cannot disassociate oneself from the awful history of Sri Lanka over the past 30 years and the history of bloodshed and civil strife that it has gone through. That having been said, I do not accept that the Prime Minister made his case to the President of Sri Lanka in an unbalanced way. There is quite a lot of contention around figures of the sort to which my noble friend refers. That is precisely why my right honourable friend the Prime Minister stressed the importance of having a credible transparent and independent inquiry to get to the bottom of what happened during the closing phases of the civil war and then addressing the situation so that it is possible on that basis to move forward with reconciliation to a shared understanding of what the future might be like. Until that has happened, it is very hard to work out how there can be reconciliation that will last.
Lord Sutherland of Houndwood (CB)
My Lords, it is clearly good that the Prime Minister’s visit to the north had the impact that it did in the wider world and among the Tamil community in the north. Will the Leader of the House tell us anything about how this was reported elsewhere in Sri Lanka, where perhaps sympathies were rather different? It is important that there is impact there as well.
Lord Hill of Oareford
I fear that I have not seen any other coverage of how it was reported in Sri Lanka. Obviously my friends at the Foreign Office and so on will have done. I am sure that they spend their days doing that and other productive things. Oh dear, I can feel that my briefing is now going to dry up on me.
On the point that some of the world’s press were able to go there, I saw the transcript of the press conference that my right honourable friend the Prime Minister gave on, I think, the Saturday morning, which had representatives of the press from both Sri Lanka and the rest of the world. That gave the opportunity for a wide range of people to report honestly and openly on what went on.
Lord Wills (Lab)
My Lords, perhaps I may ask the Minister to be a little clearer about what the Government are going to do to persuade the Commonwealth to take action to mitigate the very real damage that will be done to the credibility of the Commonwealth and the charter signed only this year, with all its emphasis on human rights, if the Government of Sri Lanka are to carry on representing the Commonwealth in international forums for the next two years. The Prime Minister did a good job, and I congratulate him on all his work on behalf of human rights in Sri Lanka on his visit, but it is clear that the regime has ignored him, just as it has ignored all representations in the past and clearly intends to ignore all such representations in the future. It is crucial that the Commonwealth takes such action to mitigate the damage that this regime will do to the credibility of the Commonwealth. What will the Government do about that?
Lord Hill of Oareford
I will be brief because I think the essence of that question was raised by the noble Baroness, Lady Royall of Blaisdon. It is something that the whole Commonwealth is going to have to do. The noble Lord asks what the British Government are going to do. We are only one of 53 members and the institution operates by consensus.
My earlier answer was that we will seek to work through that body by emphasising at every possible opportunity, as we did again in Colombo, through the Commonwealth charter, that these values are important and need to be upheld. I do not have a magic wand to wave, much as I would like to, because I share the views expressed by the noble Lord, Lord Wills. I cannot say that we can simply do A, B and C and that it will all work in the way that we would like.
Wales: Commission on Devolution in Wales
(11 years ago)
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The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)
My Lords, with the permission of the House I will repeat a Statement made by the Secretary of State for Wales in the other place:
“This Government have already committed over £2.25 billion to new infrastructure that will benefit Wales, directly or indirectly. We are spending almost £2 billion to modernise the rail network, including electrifying the Great Western mainline to Swansea and the railways serving the south Wales valleys. We are investing £250 million to build a new prison in north Wales that will create up to 1,000 new jobs and require a supply chain that will bring an estimated £28 million a year more into the local economy. We have also committed £57 million to bring superfast broadband to Wales, a key element of a modern infrastructure network. Alongside this, Hitachi’s investment in new nuclear at Wylfa Newydd is a great opportunity to create jobs and drive economic growth across north Wales.
Earlier this month, I confirmed in a Written Statement to this House that we will enable the Welsh Government to use their existing borrowing powers to start work as soon as possible on the sorely needed upgrade to the M4 around Newport, tackling the congestion that my right honourable friend the Prime Minister described as,
‘a foot on the windpipe of the Welsh economy’.
Today, in making our full response to the Silk commission’s recommendations, the Government are unveiling a new and extensive package of financial powers that will be devolved to the National Assembly for Wales and the Welsh Government.
I would like to commend my right honourable friends the Chancellor and the Chief Secretary to the Treasury, and Jane Hutt, the Welsh Minister for Finance, for the positive and collaborative approach taken in agreeing this package of powers. It demonstrates the strength of the United Kingdom and the flexibility and adaptability of devolution within our union.
The Silk commission made 33 recommendations, 31 of which were for the Government to consider. Today we are accepting, in full or in part, all but one. We are devolving many new financial powers to the National Assembly and the Welsh Government, potentially giving the Welsh Government control over more than £3 billion of tax revenue, with commensurate levels of borrowing.
We are providing the Welsh Government with additional tools to invest in the areas they are responsible for, to enable them to upgrade Wales’s infrastructure and help quicken the pace of economic growth. It will facilitate the improvement of Wales’s deteriorating road network—not only the M4, which I mentioned earlier, but also the other key Welsh trans-European route, the North Wales Expressway.
The devolution of tax and borrowing powers will also make the Assembly and the Welsh Government more accountable to the people of Wales who elect them. Since devolution the Assembly and the Welsh Government have been accountable only for how they spend taxpayers’ money. They will now become more accountable for how they raise it.
The Government’s response to the Silk commission’s first report builds on the announcement made by the Prime Minister and the Deputy Prime Minister earlier this month and sets out in detail the devolved financial powers we are giving to the National Assembly for Wales.
We will give Welsh Ministers borrowing powers so that they can invest in the capital infrastructure I described earlier. We will devolve landfill tax and stamp duty land tax in Wales, ensuring that the Welsh Government have an independent funding stream to pay back the money they borrow. We will provide for a referendum to take place so that people in Wales can decide whether some of their income tax should be devolved to the Welsh Government. Subject to the approval of the people of Wales in a referendum, we will deduct 10p from each of the main UK income tax rates in Wales, with the Welsh Government able to set an unrestricted Welsh rate of income tax for all Welsh taxpayers. This is consistent with the system being introduced in Scotland, and will increase the accountability of the Welsh Government while avoiding significant risks to UK revenues that would result from different Welsh rates for each band.
We will also fully devolve non-domestic business rates raised in Wales, so that the Welsh Government budget benefits more directly from growth in Wales. We will enable the National Assembly for Wales to create new taxes with the UK Government’s consent and devolve the tools to manage these new powers. A cash reserve will be created that the Welsh Government can add to when revenues are high and utilise when revenues are below forecast, and we will provide the Welsh Government with limited current borrowing powers to deal with shortfalls if their cash reserve is insufficient.
I was pleased that Carwyn Jones, the First Minister of Wales, welcomed the Prime Minister and Deputy Prime Minister’s announcement earlier this month. This package of powers gives the Welsh Government additional tools to invest in Wales to rejuvenate the Welsh economy, which has languished behind the rest of the United Kingdom for far too long. It will make the Assembly and the Welsh Government more accountable to the people they serve, and place important taxation levers in the hands of the Welsh Government which, if used wisely, can help make Wales a more prosperous place. This is a once-in-a-generation opportunity for Wales. I hope that the Welsh Government will rise to the challenge, and look beyond the M4 to invest wisely, and strategically, across the whole of Wales. I will place a copy of the Government’s response in the Library of both Houses and I commend this Statement to the House”.
Baroness Morgan of Ely (Lab)
I thank the Minister for her Statement today and for outlining the UK Government’s response to the recommendations of Silk part 1. On this side of the House we welcome the Statement and the UK Government’s acceptance of the majority of the Silk commission’s recommendations. I thank Paul Silk and his fellow commissioners for their excellent work, which is continuing into next year as they prepare for the next phase of their report.
These additional powers give the Welsh Government the tools they need to stimulate the Welsh economy and to support the creation of jobs. Amid all the talk of constitutional settlement, we must remember that it is how these powers are used that matters. On our side, no one is seeking more powers simply for the sake of it—they are important because of how they can be used to support the living standards of the people of Wales. The people of Wales have been hard hit by this Government’s policies, with real incomes down by £1,700 a year, energy bills rocketing, public services under pressure and welfare cuts hurting the most vulnerable. It is therefore critically important that Wales has borrowing powers which are afforded to other devolved Administrations in Scotland and Northern Ireland, as well as to local authorities, to enable it to invest in infrastructure. This is particularly important given the huge cuts to the Welsh Government’s budget. The capital budget will shrink by a third over this Parliament as part of a £1.7 billion cut to the overall budget.
The M4 relief road is the most immediate concern—not to politicians but particularly to businesses, which depend on fast, reliable roads to get their goods to market. But we also need to invest in other transport projects across Wales and in our schools and hospitals. Will the Minister first clarify exactly when she expects that a package will be in place to support the development of the M4 relief road? Will she also tell us the process by which the level of borrowing will be agreed?
The Government have previously indicated that devolution of minor taxes such as stamp duty and landfill tax is a sufficient independent income stream against which the Welsh Government can borrow. But today’s response suggests that it will also be contingent on income tax revenues. Will she confirm whether that is the case and how much borrowing will be released once minor taxes are devolved prior to any ability to vary income tax?
We welcome the devolution of a number of smaller taxes. These will give the Welsh Government a number of additional levers to support the Welsh economy and the revenue stream needed to trigger borrowing powers. Both the original consultation carried out by the Silk commission and the additional consultation over the summer clearly showed widespread support for the devolution of stamp duty. Prior to the introduction of these new tax powers, the method for calculating the offsets to the block grant will need to be agreed. Will the Minister give us some detail on the process for agreeing these offsets?
Our position has always been that we support the proposal on income tax laid out by Silk, which my honourable friend in the other place the shadow Secretary of State for Wales has called the triple lock. It allows for the ability to vary income tax rates subject to: first, the referendum; secondly, a period of assignment to ensure that Wales is not worse off; and thirdly, a fair funding settlement. That remains our position. We are pleased to see that the idea of a sunset clause, which was previously suggested on the timetable for a referendum, has been quietly dropped.
Of major significance today is that the Government have rejected the recommendation by Silk that the Welsh Government should be able to vary the bands independently. Will the Minister give us more detail on why the Government rejected this recommendation? Are the Government concerned about the potential introduction of a progressive tax? That would be particularly ironic given that the only tax rate that the UK Government have sought to lower is the additional rate of income tax for those earning more than £150,000 a year. As we all know, there are not many of those in Wales.
On fair funding, the Government clearly believe that last year’s joint statement with the Welsh Government meets the recommendation laid down by Silk. The statement said that both Governments would review relative levels of funding for Wales and England in advance of each spending review and, if convergence is forecast to resume, to discuss options to address the issue in a fair and affordable manner. Will the Minister tell us what these possible options are and what would trigger action as a result of these discussions? Will she also give us more information about the nature and timing of these discussions?
The Welsh Secretary of State, David Jones, this morning urged the Welsh Government to hold a referendum soon. He said that his party would campaign for a yes vote in order to cut taxes by 1p or more. Will the Minister clarify if this is the position of the Liberal Democrats as well? If so, will she clarify what services in Wales would be cut in order to make up the shortfall in tax receipts?
I repeat my thanks to the Minister for the Statement. I welcome the UK Government’s acceptance of the majority of Silk’s recommendations. These measures are a real step forward for Wales and for the Welsh Assembly and I would be grateful if the Minister could address my queries on the detail of when and how the recommendations will be implemented.
Baroness Randerson
The noble Baroness has given me a large number of questions to answer and I will do my best to cover all the major points. I take issue with her opening comment that the Government have accepted the majority of the Silk recommendations. Although technically that is the case, I feel that it is a pretty large majority to accept 30 out of 31 recommendations. “The overwhelming majority” is the way I would put it.
The noble Baroness makes the point that the Welsh economy is lagging behind the rest of the UK. It has lagged behind the rest of the UK for many decades. It is a matter of great sadness to me as someone who lives in Wales that it has fallen further and further behind the rest of the UK. This is not a recent thing since the coalition Government came to power: it is something that has existed for far too long, and the coalition Government, in making this series of announcements today, are determined to give the Welsh Government and the National Assembly for Wales the tools with which to do the job—the tools with which to repair the Welsh economy and ensure that it becomes fully efficient and effective again.
On the timing for the M4 financial package, our intention, as with everything else in this series of announcements, is to ensure that it can be put into practice as soon as possible. Early borrowing powers will be put into practice very rapidly. The Welsh Government are currently undertaking a consultation on a possible route for the M4 relief road and it is clearly going to be some time before any kind of actual building on the ground will take place. But I promise the noble Baroness that the tools will be in the hands of the Welsh Government in plenty of time to undertake that. It is the Government’s intention to ensure that that legislation is passed in this Parliament if at all possible. We intend to set about that with all speed.
In relation to the question on the level of borrowing that the Welsh Government will be able to undertake, clearly, as with prudence in one’s household budget, the level of borrowing that one can undertake must be related to the potential for revenue raising—your potential income. There will be one level of borrowing possible for the Welsh Government with the minor taxes, but there will be a much higher level of borrowing if the Welsh Government and the Assembly go forward with a referendum and the people of Wales vote yes on that. The timing of the referendum is firmly in the hands of the Welsh Assembly and Welsh Government, and that is appropriate.
The noble Baroness asked about the model for income tax devolution. The Government have taken the view that the Scottish model is appropriate. It has been welcomed in many quarters and therefore it is a good model to follow in this case, particularly as Wales has a very porous border and people move all the time across the border—very much more than they do between Scotland and England. There was concern that the model of income tax put forward in the Silk commission report could lead to an imbalance in terms of tax receipts.
Finally, the noble Baroness referred to the October 2012 joint statement. She asked what would be the trigger for reviewing funding for Wales. The trigger would be agreement that convergence was occurring again. At the moment, there is divergence. It is estimated and, I believe, agreed by both the Treasury and the Welsh Government that it is likely to be at least 2017 before convergence occurs again. The Liberal Democrats have always been in favour of a very high level of devolution and I strongly welcome, as does my right honourable friend the Secretary of State for Wales, the fact that I am able to make this Statement here today.
Earl Attlee (Con)
My Lords, may I remind the House of the benefit of short questions to my noble friend the Minister so that she can answer as many as possible? I can help.
Lord Crickhowell (Con)
My Lords, I welcome the general thrust of this important Statement, based as it is on the Silk commission’s recommendations. To understand the import of the Statement it is necessary to read the accompanying paper that has been placed in the Public Bill Office. Paragraph 2.6 emphasises the enormous importance of,
“an integrated economic and fiscal union”,
and of the need to make sure that:
“Any changes to the funding of the Assembly and the Welsh Government must be consistent with maintaining the integrity of the system”.
There is nothing in the decisions announced by the Government that threatens that integrity. I refer to paragraph 2.12 of the document: the Government were particularly wise, in taking their decisions about income tax, to recognise that any distortion,
“of the redistributive structure (or progressivity) of the income tax system … could potentially be detrimental to the UK as a whole”.
The paragraph goes on:
“While the impacts are uncertain … this would be unprecedented in the United Kingdom”.
The Government are wise for the reasons that my noble friend has given. Perhaps I should declare an interest. I now live only 500 hundred yards or so from the border. The truth is that a great many people live close to the border and therefore the issues that she addressed are important. It is also very important that the issue of taxation should go to the Welsh people for a decision in a referendum. I welcome that.
I have a final question. There is emphasis again in the paper that has been laid before both Houses about the need to strengthen the institutional arrangements. The Welsh Government are going to have a major task in managing these new responsibilities. Has any estimate been made of the cost that will fall on the Welsh Government, and therefore on the Welsh people, of the institutional changes that will be needed?
Baroness Randerson
I thank my noble friend for his support on this issue and for underlining the importance of this Statement. I am proud of the record of the coalition Government: we have already, through our facilitating the referendum on increased full legislative powers for the Welsh Assembly, enabled one step forward on devolution to be taken. Today’s announcement heralds a second giant step forward for devolution. While expressing full confidence in the model of devolution throughout the United Kingdom, however, the Government have been concerned that we should not in any way undermine the union. It is important to bear that in mind.
My noble friend referred to the need to strengthen institutional arrangements. I cannot give him an estimate of the cost, because that strengthening is largely a matter for the Welsh Government. It is essential that they go ahead with this rapidly. I am aware that they are already in the process of strengthening their financial arrangements for establishing a Treasury function within the Welsh Government.
Lord Wigley (PC)
The Minister understands that I support the thrust of the Silk report and the response of the Government, but can I press her on the way in which she is blindly following Scotland in insisting on the introduction of a lock-step rule whereby all three rates of income tax can only be varied in tandem, without the right to vary one rate independently of the other? In other words, if the Welsh Government wanted to bring down the top rate from 45 pence to 40 pence—an 11% reduction—there would have to be a 25% reduction in the standard rate of income tax, making such a choice totally impossible. Does she understand that the Holtham and Silk reports rejected such a lock-step approach? This not only denies the voters the choice of policy, but also flexibility to the Welsh Government and binds them into a straitjacket of relativities imposed on them by Westminster. Why do a Government who claim to support greater tax-varying flexibility in theory refuse to deliver it in practice?
Baroness Randerson
I am disappointed that the noble Lord, who has given a great deal of thought to this matter, has not been able to welcome the vast majority of the Government’s response. I take issue with the idea that we are blindly following Scotland. There is no blindness about this. The Treasury has made its decision on this, based on the evidence that it took in relation to the specific situation in Wales. I have already referred to the significance of the very porous border between England and Wales, and to the fact that so many people live close to and cross it on a daily basis. That was borne in mind by the commissioners at the Silk commission when they produced their report, and the Government have had to take that into account as well.
Lord Morris of Aberavon (Lab)
My Lords, I thank the Minister for her Statement, and Mr Paul Silk and his fellow commissioners for the work that they have done.
In general, I welcome warmly the new powers for the Government of Wales, particularly borrowing powers, which are badly needed. But first, as the income tax proposals require a referendum, do I understand it correctly that the Welsh Ministers will campaign for a yes vote for all the tax powers proposed? Secondly, can the Minister clarify a problem that I have already raised with her at Question Time? Will the borrowing powers to be used for the upgrading of the M4 around Newport and other major road improvements in Wales be financed solely from the new powers of taxation, or will some funding still come from the Chancellor of the Exchequer, and if so how much?
Baroness Randerson
I thank the noble and learned Lord, Lord Morris of Aberavon, for referring to borrowing powers. As we discuss tax-raising powers, we should not overlook the significance and importance of borrowing powers, particularly as they will enable us to be fleet of foot and ensure that the Welsh Government get the money that they require.
The noble and learned Lord asks how Welsh Ministers will be campaigning in a referendum. I cannot speak for Welsh Ministers. They must make up their mind—they are members of a different party and Government from me. However, it seems fairly unlikely that a referendum would be called if they were going to campaign against it, but it is not impossible.
I am unable to give the noble and learned Lord a detailed answer on the precise funding model for the M4. That still has to be worked out. The devolved responsibility for infrastructure means that the burden of the repair and construction of roads in Wales falls on the Welsh Government to a very large extent.
Lord Thomas of Gresford
My Lords, it is all very well saying that you are going to vote yes for a referendum. Would my noble friend the Minister be good enough to say who is going to frame the question which is to be put to the Welsh people? It has been noticeable that the First Minister, Mr Carwyn Jones, has not been overanxious to commit himself to timing for a referendum. Can we take it that the legislation will ensure that a referendum will be held and will not be deferred until some replacement for the Barnett formula has been found? In the 13 years of the previous Labour Government, they were unable to do that, despite all the pleas that were put to them at that time. Will my noble friend confirm that this referendum will go ahead with a proper question, within a reasonable time and with the Welsh Assembly having the power to determine precisely when?
Baroness Randerson
I thank my noble friend for raising two new issues, the first relating to the question for the referendum. The Government’s response on this has laid great emphasis on how well we believe arrangements worked for the previous referendum on full legislative powers. In that case, the matter was very much in the hands of the Welsh Government and Welsh Assembly in consultation with the UK Government. However, there was a very important role for the Electoral Commission, whose advice was taken and was pivotal. I hope that the Welsh Government will lead the call for a referendum and that the situation in Wales will enable them to lead that call relatively soon. It is important that the Welsh Government feel that they are in a position strongly to call for a referendum, because the UK Government believe that the joint statement of October 2012 meant that there was agreement between the two Governments on the way in which future funding for Wales would be dealt with.
Lord Touhig
My Lords, the document accompanying the Statement states:
“The precise levels of capital borrowing will … depend on the outcome of the income tax referendum”.
Twenty years ago when I chaired Gwent finance committee, I borrowed £37 million from the European Investment Bank and paid it back on time. If a county council had such borrowing powers 20 years ago, why cannot the Welsh Government now be trusted to borrow to invest according to their own assessment of their ability to service that debt, rather than wait upon a referendum?
Baroness Randerson
The noble Lord makes an excellent point; I, too, was a councillor a long time ago. We should bear in the mind that councils raise a significant amount of funding via what we nowadays call council tax. Therefore, their level of borrowing depends on their level of tax receipts. The UK Treasury is proposing exactly the same model for the Welsh Government.
Lord Elystan-Morgan (CB)
My Lords, while applauding those impactive and genuine matters of devolutionary significance which are contained in the Statement, may I tempt the Minister to a wider consideration? Does she not agree that in so far as fundamental constitutional changes in the United Kingdom are concerned they should be planned and administered on a comprehensive, and not a piecemeal or haphazard, basis? In other words, once the Scottish people have given their verdict on the issue of independence, a powerful body of the wise, the good and the great should be set up to consider, first, the relationship of the House of Commons to the House of Lords and vice versa and, secondly, the relationship of Westminster government to devolved authorities, whether they be two or three in number. Does she agree that that is the only way in which we can avoid the humiliating debacle of what was called an attempt to reform this place two years ago?
Baroness Randerson
The noble Lord maintains a keen interest in constitutional issues and I have a similar interest in them—I do not always share the same prescription or viewpoint, but I have a similar interest. It is important that once the changes that we have proposed today have worked their way into legislation and the referendum on Scottish independence is dealt with, whatever the outcome, those people who look at constitutional issues start looking forward again. I have always espoused this rather neat and tidy approach to the British constitution, but that is not the way in which it has developed.
Lord Howarth of Newport (Lab)
In welcoming this enhancement of devolution, I particularly welcome the improved prospect that we now have for the construction of the M4 relief road, which when it is opened will be of great benefit to quality of life and economic development in Newport and south-east Wales.
Perhaps I may press the Minister further on the points rightly raised by my noble and learned friend Lord Morris of Aberavon and my noble friend Lord Touhig on the funding of infrastructure. The Statement seemed to suggest, entirely implausibly, that, as a result of these changes, the land of Wales would flow with milk and honey and that the Welsh economy would be rejuvenated. Surely she recognises that the substantial cost of investment in transport and other infrastructure needed in Wales can be met only in limited part—I would say in small part—by the revenues from the minor taxes that are to be devolved and the limited borrowing powers that are proposed for Wales. Surely devolution should not mean an opportunity for the Treasury to be off the hook and for the important infrastructure needs of Wales to continue to be neglected.
Baroness Randerson
I know that the noble Lord is very conversant with the problems of the M4, and in the Newport area in particular. I am glad that he has welcomed the contribution that these changes will make to alleviating them.
The early part of the Statement set out the contribution that the UK Government have made to infrastructure in Wales, in particular railway infrastructure. The noble Lord needs to bear in mind that when an issue has been devolved the funding is devolved as well. If there are flaws in the devolution settlement in Wales, we have to look back to the Government of Wales Act 2006 and the original devolution settlement at the end of the last century. It has possibly been difficult in the past for the Welsh Government to deal with major infrastructure projects, which is exactly why we say that, as well as devolution of minor taxes, there needs to be a referendum to offer the people of Wales the opportunities given by the devolution of a portion of income tax.
Baroness Finlay of Llandaff (CB)
Given that the current settlement has been recognised as inadequately taking into account the high number of older people in Wales who are not economically active and the demands that those with multiple comorbidities put on health and social care, and given the widely acknowledged poverty of infrastructure of roads and other forms of communication, particularly IT and telephones, will the Government undertake to review the funding settlement that followed the Act so that, during the transition phase, there can be some correction in the perceived deficit in core funding to Wales?
Baroness Randerson
I remind the noble Baroness of the October 2012 joint statement in which the Welsh and UK Governments acknowledged the procedure that would be followed in future if Welsh funding were again to become unfair in terms of further convergence. The settlement has been set out very clearly in that joint statement, so it is important that she bears that in mind for future reference.
Anti-social Behaviour, Crime and Policing Bill
(11 years ago)
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Lord Faulks
Lord Faulks (Con)
My Lords, we return to considering Part 1 of the Bill, in particular IPNAs. I have already addressed the Committee about my views generally on Part 1, which support the Government, and I have no need to repeat them. However, I acknowledge that concern has been expressed both within the House and outside that the test for what is,
“capable of causing nuisance and annoyance”,
could be regarded as subjective. This would, potentially at least, result in a court ordering an injunction on the basis of some perceived nuisance and annoyance which, looked at objectively, should not be constituted as one.
In fact, the words “nuisance and annoyance”, which have, as we have heard, a considerable pedigree both in terms of the common law in reviewing breach of covenant cases, and in a number of Housing Act statutes, have been considered by a number of judges to carry with them a degree of objectivity. I would expect that they would not be viewed entirely in subjective terms, were a case to reach court. In fact, I very much doubt that either the agencies which were to seek an injunction under this part of the Bill or the courts would come to a different view in any particular case as a result of the insertion of these additional words. However, they would serve to allay some of the anxieties that have been expressed about anti-social behaviour being too subjective a concept, and the amendment should ensure that both the agencies and the court stand back and view the behaviour objectively before deciding whether it can properly be described as,
“capable of causing nuisance and annoyance”,
and whether it is “just and convenient” to grant an injunction. This added safeguard will, I suggest, fit reasonably into the structure of the Bill without weakening the protection that it provides for communities and individuals who are so often beleaguered by anti-social behaviour.
I noted that during the course of the debate, my noble friend the Minister indicated to the noble Baroness, Lady Mallalieu, that he was considering importing the word “reasonable”, as I understand it, into Clause 1(3) in relation to the “just and convenient” element of the judge granting an injunction. I respectfully suggest that the word “reasonable” might be better imported as a description of the relevant behaviour, rather than be imported into the discretion that a judge has in whether or not to grant an injunction. The judge would regard himself as being reasonable in any event when deciding whether it was “just and convenient” to grant an injunction. With respect, I would suggest that it would be better included further on in Clause 1. I beg to move.
Baroness Hamwee (LD)
My Lords, I have three amendments in this group. Let me take the last one, Amendment 20H, first. I have lifted the wording from the Crime and Disorder Act 1998, and it would provide that the court disregards,
“any act of the defendant”—
I have said “defendant”, although I should have said “respondent”—
“which he or she shows was reasonable in the circumstances”.
That follows neatly from the comments which have just been made, and I agree with what my noble friend said about that. I used the term “defendant” when I tabled the amendment because we think of the respondent as a defendant. This provision would allow the respondent to defend himself or, if you like, respond to the allegations. This goes to the behaviour which my noble friend has just mentioned.
My first amendment would insert the word “a”, and turn “nuisance” into “a nuisance”. This enables me to ask whether “nuisance” in this context is wider and less specific than “a nuisance” in the Housing Act. My second amendment, Amendment 20C, is to leave out “or annoyance” and is not only for the reasons which other noble Lords have given during the course of the afternoon as examples of conduct that each of us undertakes which our colleagues might regard as annoying—in my case probably putting down too many amendments. It is also to understand the distinction between nuisance and annoyance.
I have noticed during the course of the afternoon that many noble Lords have talked as though the clause referred to causing “nuisance and annoyance”. In fact, it is “nuisance or annoyance”. I am sorry to be picky—or, as my noble friend Lord Greaves would accuse me of being, legalistic—but these words are important.
Lord Wigley (PC)
My Lords, I shall speak to Amendment 20GA, which is tabled in my name and that of the noble Baroness, Lady Hollins, and is coupled with this group. It seeks to address concerns that the Bill does not adequately take account of the likely impact which these new provisions will have on people with a learning disability. The amendment says:
“Consideration should be given to people with a learning disability in the issuing of an injunction to ensure they are not discriminated against”.
It may not be the most elegant English, finishing with the word “against”, but I think the gist is generally understood. I should also declare my interest as vice-president of Mencap Wales.
As we heard in the debate on the previous bank of amendments, the Bill introduces civil injunctions to prevent nuisance and annoyance—IPNAs as they are called. These may be imposed if the court considers it “just and convenient” to prevent anti-social behaviour. The Joint Committee on Human Rights, in scrutinising the Bill, highlighted that this is a lower test than the test of necessity, as required by human rights law. Furthermore, it considered that the new IPNA definition of anti-social behaviour is broad and unclear.
This has set alarm bells ringing with Mencap and others who work with people with a learning disability, fearing that this will lead to IPNAs being used inappropriately. As many know, people with a learning disability are disproportionately likely to be victims of anti-social behaviour. Mencap's report Living in Fear found almost nine in 10 people with a learning disability had experienced bullying, harassment or some form of anti-social behaviour.
The root of this, of course, is attitudinal and is based on the value that we as a society place on disabled people. In some people's eyes they are different and sometimes regarded, sadly, as dangerous. This was brought into sharp focus by the recent murder of Bijan Ebrahimi. Bijan was a disabled man picked upon for being different on his estate in Bristol. He suffered from low-level harassment before being accused of being a paedophile. He was questioned by the police, who found him innocent, but unfortunately by this point rumours had begun circulating that he was a child abuser and two days later he was brutally murdered.
My concern is therefore that a lower threshold for IPNAs, together with a murky definition of anti-social behaviour, will result in these new injunctions being used out of misunderstanding, fear and ignorance of people with a learning disability, and of behaviour that might be associated with their impairment. It could also lead to a rise in vigilantism and will do nothing to improve people’s understanding of the needs of disabled people.
There is also a fear that victims may in turn be branded perpetrators. For example, a person with a learning disability might be continually verbally abused by a neighbour. What if that victim is at the end of his tether and snaps, so to speak, at the neighbour? Such behaviour might in turn result in an IPNA being placed on that individual. The Bill sets out examples of certain prohibitions and requirements in Parts 1 and 2, and the amendment would include consideration of learning disability at this juncture. Such a step, if backed by robust guidance, would undoubtedly go some way towards meeting these concerns. I hope that the Government might look at this area further, not least because I understand that no equality impact assessment of the Bill has been carried out to date. I look forward to hearing the Minister’s thoughts on these matters.
Baroness Berridge (Con)
My Lords, Amendment 20 was recommended by the Joint Committee on Human Rights in its fourth report—a committee on which both my noble friend Lord Faulks and I serve. Amendment 20 is a modest compromise and adds an element of reasonableness or objectivity, giving the test more rigour, and will aid the authorities and other agencies. It will enable them to better explain their refusal to act on behalf of some people who just have different views on what they should have to tolerate from their neighbours and other people in the neighbourhood. I agree with my noble friend Lord Faulks that at this earlier stage, the test should have a reasonableness requirement, as it is at this stage that the officials of the authorities outlined in Clause 4 have to consider that behaviour.
As has already been outlined, reasonableness and proportionality are a requirement that the judiciary has to take into account when granting an injunction. This means that there will be reasonableness applied in the test by the officials and, of course, by the court rather than having a more subjective test by the officials and only later on encountering the reasonableness threshold. I spoke at Second Reading about the inordinate lengths to which witnesses have to go to collect the necessary evidence to get an ASBI or an ASBO. Merely adding after “conduct” the words “that might reasonably be regarded as” does not increase the evidence that has to be gathered and I therefore support this amendment.
Lord Hope of Craighead (CB)
My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.
Lord Greaves (LD)
My Lords, if I sometimes tell my noble friend Lady Hamwee that she is being legalistic, that is a compliment since she is a lawyer and I am not, which means that she sees things that I do not. When it comes to the meaning of words, however, I take a straightforward, common-sense view. Words have meanings and we ought to try to stick to them, but sometimes words have different meanings. A word that may well have a respectable legal background in terms of its meaning may not necessarily mean what ordinary people in the street think it means. I think that that is why “annoyance” is causing a reasonable amount of difficulty in the Bill. It has caused many to ask, “Are we really going to have an injunction just because someone is being annoying?”. I take the view that it is a human right to be annoying to other people from time to time, because if it does not happen there will never be any progress. Perhaps that explains some things. The difficulty, however, is at what level annoyance becomes unacceptable. “Harassment, alarm and distress” are clearly degrees of annoyance but they go rather further than what people nowadays tend to think annoyance means.
In the representations that we have had on this there has been quite a concern among those who are used to ASBOs—civil liberties groups and so on—about the way in which the changes are being made, switching from ASBOs and apparently making it easier to obtain an injunction to prevent nuisance and annoyance, and about the possibility that the words “nuisance” and particularly “annoyance” are far too feeble. On the other hand, the housing associations which have been writing to us in the past two or three days are saying, “No, the existing ASBIs”—which are injunctions—“work very well and those are the words that they use”. They would be very concerned if the test was increased.
One reason for this is that you might live next door to somebody who says something foolish to you or wags their finger at you every time you go out in the morning. If it happens to you one time out in the street, and even if the person is going round doing it to lots of people, it really is no reason to serve an injunction on the person, however daft they may be behaving. But if it happens day after day or every time you go out of your house, it becomes a very serious matter. There is a considerable difference between repeated, annoying, low-level anti-social behaviour which irritates and harasses neighbours and is totally unacceptable in a residential context and the same behaviour out in the street. This is happening partly because, as the noble Lord, Lord Harris of Haringey, told us earlier, the Government are bringing lots of different things under the same umbrella.
However, what does “annoyance” mean? Being a fairly boring person and having it on the shelf, I looked in the Oxford English Dictionary, and I found four definitions. These are definitions of the verb “annoy”, but “annoyance” is clearly about annoying somebody. The first definition was “Be hateful to” or,
“Be a cause of trouble to”.
That is a fairly high level of unpleasant behaviour. The second was to,
“be troubled, irked or wearied by”,
which is a much lower level. The third was to:
“Cause slight anger or mental distress to or irritate”,
which seems a very low level. There was another, which was to harm or attack repeatedly, or harass, but it said that that was archaic and the illustration of it was, “A gallant Saxon who annoyed this coast”. Well, I am all in favour of gallant Saxons annoying the Yorkshire coast in the past, otherwise I might not be here, but that is clearly not relevant now.
To bring it up to date, the Merriam-Webster internet dictionary defines it as,
“to cause (someone) to feel slightly angry”,
which is clearly something that we ought not to be legislating about;
“to disturb or irritate especially by repeated acts”,
which might be; and,
“to harass especially by quick brief attacks”,
which probably is anti-social behaviour. That dictionary then said that “annoyance” may be,
“slight anger : the feeling of being annoyed”.
I thought “I’m giving up” but I looked further and it then said it was,
“a source of vexation or irritation”,
and then it defined it as a nuisance, so I thought, “We are going around in circles here”.
Annoyance actually has lots of different meanings, and for most people in this country today it is very low level. If we want it to be higher, the Government ought to make a real effort to define it in the legislation. It is assumed that the words “nuisance” and “annoyance” are in the law already and that everybody knows what they mean. I do not think that they do if the Government mean that they are a sufficiently high level to warrant injunctions against people.
Baroness Smith of Basildon (Lab)
My Lords, I think that I can be very brief at this point. I have sat in the noble Lord’s place, albeit in the other place, and one thing he will have in his file is a note on the amendment saying, “Resist”. May I tempt him not to on some occasions? Amendment 20 in the name of the noble Lord, Lord Faulks, seems eminently sensible and reasonable. It actually seeks to put some necessary clarification in the Bill. The Minister said he would look very sympathetically, and I hope he will, at Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. There is a serious issue about people with learning disabilities. It does not mean that they are not capable of causing distress through anti-social behaviour, but the measures by which it can be addressed and dealt with have to take into account any special measures and any learning disabilities that an individual may have. I hope that the Minister can look favourably on both those amendments.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.
This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.
Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.
My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.
That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.
In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.
Baroness Hamwee
My Lords, before my noble friend responds, of course let us all think about it, but may I put one further, supplemental thought in the Minister’s mind? He talked about the pedigree of the term “nuisance or annoyance”. If a lot of that pedigree comes from the housing context, then we need to be careful about transposing the words without the constraint around it. That may not be the right word, but we need to consider the reasonableness of the term if we are moving into a different context.
Lord Taylor of Holbeach
Perhaps I should rely less on the Housing Act and draw attention to other matters such as the abuse of alcohol in public places, for example, which uses a similar test, or the parking of vehicles on highways and the obstruction of highways, which was also mentioned by me in a previous debate. This does not apply just to housing matters; there are other issues that have used the test of nuisance and annoyance. I do not see the problem that my noble friend suggests.
Lord Faulks
My Lords, I am grateful to all noble Lords and noble and learned Lords who have taken part in this debate. I am grateful to the Minister for his reassuring noises; he has shown himself, as usual, to be a listening Minister. The expression “nuisance or annoyance” has a pedigree, as I think he said, in the housing context. It is almost a term of art, so widely has it been used over the years in the context of breach of covenant in common law, and it has found its way into statute.
Of course, a particular housing situation is not precisely analogous to anti-social behaviour. Nonetheless, there is a substantial accumulation of case law that the judges will understand and, I suggest, they will interpret it accordingly. I repeat what I said earlier: it seems that in any event the reasonableness is part of the judge’s task in deciding whether or not it is just and convenient to grant an injunction. Reasonableness will be the watchword, as will the obligations that the court has under the Human Rights Act.
Where I suggest it is important to import reasonableness, as the noble and learned Lord, Lord Hope, said, is at the stage of defining with some degree of objectivity the nuisance and annoyance so that neither the agencies nor the court are in any way diverted by simply having to accept a subjective interpretation of what counts as anti-social behaviour. I hope that the Minister will reflect on that. I appreciate that this does not in any way weaken the power, but it should reassure those who are naturally concerned about the potential for this power to be used oppressively, and that reassurance would be at least provided, I hope, by an appropriate amendment. With that, I beg leave to withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, I shall speak also to three other amendments in this group. The amendments are small but useful. The first two refer to IPNAs and the second two to criminal behaviour orders; otherwise they match each other. Clause 1(5) says about IPNAs:
“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid … any conflict with the respondent’s religious beliefs … any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment”.
I want to add “ethical or” to the religious bit and “or training” to the educational bit, so that it reads “educational or training establishment”. The wording in the criminal behaviour order is almost identical, so the amendments are identical.
It is right that people should not have to give up religious beliefs or practices in order to comply with an injunction. There are some people who have strong ethical humanist views that might involve regular attendance at events each week that they would say were equivalent to religious events—they are clearly not religious so do not come under that definition—and it seems reasonable to include those. It is also possible that there may be genuine objections by some people to requirements in an injunction that require them to take part in otherwise excellent facilities or proceedings that are organised by religious groups or particular religious groups. It therefore seems that the word “ethical” ought to be there as well to cater for probably the very small number of people with humanist beliefs who would have these views.
Lord Harris of Haringey (Lab)
My Lords, I shall speak to Amendment 20FA in my name. I appreciate that the noble Lord, Lord Greaves, is seeking to broaden the scope of the potential areas where it may be possible for the courts to limit the prohibitions and requirements of an injunction. I am going to raise some queries about whether or not any of this really makes sense. I do not disagree with anything that the noble Lord has said, but I wonder where we are going when we talk about religion in this context.
Noble Lords will remember that in 2001, 390,127 people put down on their census forms that their religion was “Jedi”. I wonder whether, for the purposes of excluding someone from requirements under one of these new injunctions, saying that you had to follow your religion of Jedi would enable you therefore to say, “I should be allowed to carry on exactly as I wish”. Similarly, are we including in religion Satanism or the proponents of animal sacrifice?
I pose these questions not because I seriously seek to know whether, when the Bill was being drafted, those drafting it were considering proponents of animal sacrifice or even those who consider themselves to be Jedi knights. I am, however, quite clear that I have come across plenty of people who behave in an anti-social fashion who, if they thought that there were some exemption from the requirements of an injunction, would suddenly pronounce that they had all sorts of religious beliefs, beliefs that a normal person—or to your Lordships here, if that is not the same—might consider was not really a bona fide religion. Is there a requirement now for the Government to define what they consider to be a religion? If there is such a definition somewhere, the noble Lord will have it to hand and explain it to me.
My second concern is that, even in an established religion which we would all recognise as bona fide, there are certain norms of behaviour. If, however, you pursue your belief in that religion with an excessive degree of zeal, does that excessive zealotry automatically mean that you can have exemptions from the requirements of an injunction? What is or is not reasonable in pursuit of your religion? We may get advice from one of the right reverend Prelates, although I suspect not.
Many years ago, meetings of the Tottenham Labour Party used to take place on Sunday mornings, next to a black church where the singing of hymns was extremely loud. The church was extremely well attended: far better attended—and probably more fun—than the meetings of the Tottenham Labour Party. However, what constitutes reasonable pursuit of your religious beliefs? For example, is it acceptable that, in pursuit of your religious beliefs, you decide to go into the common parts of an estate and pray extremely noisily every night at 2 am? Some people might claim that was pursuit of their legitimate religious beliefs, but is that reasonable in this context?
My final point is: even if this is the reasonable pursuit of a bona fide religious belief, does that pursuit have a disproportionate impact on other people? I pity the courts that have to interpret this and the local authorities or housing agencies trying to pick their way through it. I hope that, by tabling this amendment, we will get some elucidation from the Minister on what is intended by this phrase. I absolutely support and accept the principle that these injunctions should respect bona fide religious beliefs. However, we will have to define what a set of bona fide religious beliefs is, what the normal extent of practising those beliefs is and in what circumstances their normal practice has a disproportionate impact on other people.
Baroness Hamwee
My Lords, I say in response to my noble friend’s point about education and training, “Call me legalistic”. The noble Lord, Lord Harris of Haringey, is very bold in raising these important points. He used the phrase “bona fide” several times in his speech, as well as in the amendment. Followers of paganism would say that their religion was bona fide. As the noble Lord was speaking, it occurred to me that a call to prayer at a very early hour is very annoying to some people, but would one challenge that? He raises bold and brave questions.
Baroness Berridge
My Lords, I refer to the report of the Joint Committee on Human Rights. The examples raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Harris, all seem to relate to the manifestation of somebody’s religious beliefs. The report states that the holding of religious beliefs by any individual is an absolute right under both the European convention and in international law, under Article 18 of the Universal Declaration of Human Rights. It is only the manifestation of one’s religious or humanist beliefs that can be restricted by a country on certain grounds, as defined in European and international law. Would the Minister please outline why the Bill, as currently drafted, only allows prohibitions and requirements to,
“so far as is practicable … avoid any conflict with the respondent’s religious beliefs”?
It should, surely, be the manifestation of those religious beliefs that the Bill is aimed at.
Lord Ahmad of Wimbledon (Con)
My Lords, in standing up and responding I feel like the Jedi knight next to the Jedi master. May the Force be with us all.
Amendments 20F and 22CA raise an important point in respect of the duty on the court to ensure, so far as is practicable, that any prohibitions or requirements attached to an injunction do not conflict with the manifestation—as my noble friend so eloquently put it—of the respondent’s religious beliefs. In line with the Equality Act 2010, reference to religious beliefs should go further than so-called “traditional” religious beliefs. I believe that this can be covered in guidance but I would like to go away and consider further the points made by my noble friend. We can return to the wording of this section if required. I hope my noble friend will accept my assurance that we will further consider this point and those made by the Joint Committee on Human Rights.
I turn to the amendment tabled by the noble Lord, Lord Harris. I support the words of my noble friend Lady Hamwee: he raised bold and challenging concepts. As I said, in response to an earlier amendment, what may be perceived as perfectly acceptable to one person may not be acceptable to another. The courts are used to considering a person’s religious beliefs and do not need to be told that they can reject beliefs if they are spurious. In addition, to try to second-guess what would, in the words of the amendment, constitute activities “that would normally arise” is very difficult given that two people of the same religion may have different ways of practising their faith. I am a Muslim and there are 73 different denominations within Islam. During Ramadan, the time of your fast can differ depending on where you are. One obviously prefers to be at a place where the fast closes as the sun sets rather than when the sun is set totally. That is a practical illustration from a faith which is widely recognised.
The crucial point here is that, in considering an injunction, the court must avoid, so far as is practicable, any conflict with the manifestation of a respondent’s religious beliefs. If that is not practicable because, for example, avoiding the conflict would result in the respondent engaging in further anti-social behaviour purporting to be religious practice, the court would not be prevented from imposing prohibitions or requirements that it considered appropriate. This is something we can safely leave to the courts; they are more than capable of assessing the bona fide status of a respondent’s religious practice without express provision and, indeed, we have recently seen examples of that.
Amendments 20G and 22CB, tabled by my noble friend Lord Greaves, raise another important point. As we have made clear, the injunction should be available to help turn a troubled person’s life around, especially when they are young and impressionable. As such, it would not be helpful for requirements or prohibitions to unnecessarily stop them engaging in constructive training.
However, what is considered as training by some may not be worthy of special consideration by the court and some will try to use this term to delay the court’s process. Where training is worthy of consideration it is likely to be linked to an educational establishment or even a formalised work placement and, as such, is already provided for in the Bill. My noble friend also raised the issue of different wording in different parts of the Bill. We recognise that Clause 34(3) imports the word “training” whereas Clause 5(1) does not. I will certainly reflect on those two variations and return to them as required.
For the reasons I have given, I hope that my noble friend Lord Greaves will withdraw his amendment and that the noble Lord, Lord Harris—notwithstanding the important issues that he raised—will not press his.
Lord Greaves
My Lords, I am very grateful for that helpful response from the Minister and I look forward to the results of his reflection. To my noble friend Lady Hamwee I say, I am never legalistic; I may sometimes be pernickety, but that is a bit different. I had great sympathy for what the noble Lord, Lord Harris of Haringey, said, and had great sympathy for him, having to go to his Labour Party meetings on a Sunday morning. However, that reminded me that in the old days, and perhaps here and there now, there were things called socialist Sunday schools. If lads and lasses were getting out of hand, I am sure that going to socialist Sunday schools might have helped them. I cannot see how it could have done so, but it might well have helped them at least to organise their lives. Therefore, the question of regular events—such as non-religious ethical meetings—is important. I am grateful for the Minister’s comments, and I beg leave to withdraw Amendment 20F.
Central African Republic and the Great Lakes Region
(11 years ago)
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Baroness Berridge
To ask Her Majesty’s Government what assessment they have made of the security and humanitarian situation in the Central African Republic and the Great Lakes region of Africa.
Baroness Berridge (Con)
My Lords, I shall begin with the good news. The M23 rebels have been defeated militarily, so their only option is now the negotiating table. Towns in North Kivu, in the eastern DRC, are celebrating, and the UN has shown its capability, along with national Governments, to deal with an intractable conflict. The BBC reported that M23 officials in Uganda said that their fighters had retreated because government and UN forces had launched a joint assault. However, the UN has yet more work to do, as one of the newest threats to regional security now lies in the little-known country of the Central African Republic. A landlocked country, it lies at 180th out of 186 on the UN developmental index, bumbling along near the bottom but never getting the attention of being in the relegation zone. It borders Sudan, South Sudan, DRC, Chad, the Congolese Republic and Cameroon, is about the size of France and is rich in oil, timber and diamonds. After independence in 1960, there have been many coups and the notorious brief existence of a Central African Empire under Emperor Bokassa.
Why, then, would the world pay much attention to the latest coup, which happened on 24 March of this year? The Foreign Secretary expressed his concern the next day but his plea,
“on all sides to make every effort to show restraint and to respect human rights”,
was not heeded. However, not only are there flagrant human rights abuses, but the world needs to pay attention, as this time CAR has gone from coup to failed state. In August 2013, UN Secretary-General Ban Ki-Moon said that there had been a,
“total breakdown of law and order”.
Unicef goodwill ambassador Mia Farrow visited the weekend before last and one of her tweets stated:
“I see no evidence of any functioning government”.
Not only have I found the reports of Human Rights Watch, Amnesty and CAFOD invaluable, but I have also, through a UK charity, been receiving reports directly from CAR, from people on the ground, and it is their stories and pleas for help that led to this evening’s debate.
There is basically no security for the civilian population. The new President Djotodia is a militant Islamist and has no effective control outside of the capital Bangui and not totally within it. He used three groups of rebels, now known as the Seleka coalition, to gain power, and now those rebels are left to control sections of the country. Many of them, perhaps 80% or 90%, are foreigners, recruited from Chad or Sudan. The rebels have taken control of key customs towns and diamond mines. They have become the local police force, and most schools and hospitals are not functioning. I was told:
“At the end of August when there was a deterioration of the security situation in the Rabe and Boeing districts of Bangui the inhabitants went and occupied the runway at the International Airport, believing this to be the only safe place to go”.
This very weekend, Modeste Martineau Bria, the director of judicial services, was killed in the capital, Bangui, by Seleka rebels. The UN and all NGOs agree that these rebels loot, rape and pillage with impunity. Whole villages, such as the village of Bohong, 25 kilometres from Bouar, have been burned down. According to CAFOD, there are 40,000 internally displaced persons in Bossangoa, and 65,000 people have fled the country. Sometimes the rebels will spare lives in return for money, but often they rape, and resistance means execution—literally being hacked to death with a machete—said Thibault Ephrem to the Guardian newspaper in July.
The rule of law has vanished. In the same report, in the town of Kaga-Bandoro, the town’s catholic priest recounts that many families are still in the forest or the bush and that people are dying without any assistance. He estimated that 60,000 of the region’s population of 130,000 were hiding in the jungle, living ferally in a malaria-prone region, with no clean water and where 11% of the population aged between 11 and 45 is HIV positive. If there can be a worse report, my stomach churned on seeing a photo sent to me, of an elderly lady with the caption:
“A lady forced by Seleka to eat human flesh”.
In August, the AU took over the small group of peacekeepers from ECCAS member states, namely Gabon, Cameroon, Chad, Congo and the DRC. Including civilian police and human rights monitors, this new force, MISCA, should be about 3,500-strong, but there are currently only 1,000 troops, and only Burundi has promised a further 500. Some estimates put the numbers of the Seleka rebels as high as 23,000, so how will the MISCA force be sufficient?
Will my noble friend please outline whether Her Majesty’s Government will support the transfer of MISCA to a UN-led operation, such as the one that has been so successful in the DRC? Can he also outline how the United Kingdom will vote in a Security Council decision at the end of the month?
The particular results of this coup also necessitate the involvement of the UN, not only the AU. This failed state for the first time has broken down along sectarian lines. The most recent reports by the BBC and the Guardian accept this, but early accounts contained warning signs. On Sunday 14 April, the Brethren church in the Cité Jean XXIII quarter was shelled during a worship service, leaving a number of people, including children, killed or seriously injured. Some of the children’s feet were amputated in the attack, but there was no comment from either the President or the Prime Minister.
After the coup in March 2013, a letter dated April 2012 began to circulate, whose authenticity President Djotodia has not denied. The letter, from him to the OIC, allegedly outlined his vision to form an Islamist republic from CAR, Darfur and part of Chad. Of course, much if not most of the Muslim population of CAR does not support the Seleka rebels or the president, but they are powerless to stop this dynamic.
Anti-Seleka rebels, called “anti-balaka”, meaning “anti-machete”, have now formed. The name says it all. Vicious reprisal attacks are now being reported against the Muslim and Fulani populations. Father Anastasio Roggero, a missionary who has worked in the CAR since 1975, said in an interview with Fides:
“We are in the heart of Africa, and the danger here that a centre of terrorism is set up is real, in my humble opinion”.
He did not need to be humble. As the UN director of humanitarian operations in CAR, Mr Jing, said:
“We are seeing the seeds of a profoundly dangerous development between communities … It’s a tinderbox that can ignite into something very, very big and very, very bad”.
A genocidal interfaith civil war is a risk, and needs to be averted. The religious leadership in CAR is trying to bring about reconciliation, and travels the country trying to talk to the anti-balaka rebels, and the four major Christian leaders signed the Bangui declaration, which includes a request for the UN, not the AU, to be involved in peacekeeping. However, will Her Majesty’s Government please outline their view on the alternative request in that declaration of the MISCA force being at least 10,000 strong?
Such conflict and insecurity of course means that there is a humanitarian crisis at the moment that affects the entire country. Subsistence agriculture is the primary livelihood for the majority of CAR’s population, and many were previously self-supporting, if not exporting food. However, due to fighting and looting of agricultural equipment and cattle, 1.1 million people face food insecurity, 1.4 million people are without access to clean drinking water and up to half a million people require urgent, immediate food assistance.
In July, the UK pledged £5 million, but the UN emergency appeal for the Central African Republic remains one of the most underfunded appeals. To date it has received only 42.5% of the £121.5 million that is required. So far, the UK’s prompt contribution amounts to just under 6% of the funds received. The UK is a leading humanitarian donor, so will my noble friend outline whether the amount of UK aid is going to be increased and whether aid is managing to get beyond the capital, Bangui? One further urgent priority is to secure the mineral wealth that is the future of this country. Will my noble friend outline what discussions Her Majesty’s Government are having with the French Government on the general situation in CAR and particularly in securing these mineral sites?
I find it so sad to hear my good friend Pastor Nims Obunge, who spent his teenage years in Bangui, remembering,
“the beauty of a peaceful city ... and the beauty of the people was reflected in their well crafted art and rhythmic music and dance ... I recall Bangui with the beaming smiles of local people”.
It will take a long process of reconciliation to get back there, but if the world acts now, it is possible. If it does not, CAR may become well known, like Rwanda, for all the wrong reasons. As UN Resolution 2121 makes clear, such genocide will be with guns, not just machetes.
Baroness Kinnock of Holyhead (Lab)
My Lords, I am grateful to the noble Baroness, Lady Berridge, whose Question enables me too to focus on the human catastrophe and humanitarian emergency that continues to enfold in a country little known outside France—the Central African Republic. It is a country that has been unstable for most of the time since its independence from France in 1960 and its history is characterised by a callous disregard for human life. I am talking about what is clearly a failed state where there is violence, anarchy and little evidence of international attention, a country where for 10 years there has been civil war, relentless poverty and a succession of coups, which means that the population now show signs of deep trauma, and aid workers are being targeted.
The CAR has for far too long been a forgotten country suffering from a forgotten crisis. Now, at last, there are some signs of unprecedented attention, given in particular by my noble friend Lady Amos and, indeed, by the European Union Humanitarian Commissioner Kristalina Georgieva, who has both visited the CAR and has been at the vanguard of efforts to increase international awareness of the suffering of that country. People are starving. They are resorting to the eating roots and leaves of manioc plants. They rarely have access to clean water. There is no functioning health service. Malaria is a major killer, especially of children, accounting for 70% of paediatric deaths. HIV prevalence is the highest in central Africa and life expectancy is 48 years. Women have suffered rape, abduction, torture, mutilation and other crimes, all inflicted with impunity.
Last March the self-styled Seleka rebels seized power. There has been a state of lawlessness ever since with large-scale attacks on civilians. Looting and murder is widespread. The Seleka has failed to investigate or prosecute any of the abuses committed by its own members. The UN has now made a response. Adama Dieng, UN special adviser on the prevention of genocide, and John Ging of OCHA have recently briefed the United Nations Security Council after a harrowing visit to the CAR. Mr Dieng reported that Muslims and Christians were inciting violence against each other and expressed concern about this new dimension to the conflict. He did indeed speak of the possibility of genocide, in what he described as a “tinderbox” and a country where,
“the scale of suffering is among the worst in the world”,
and where a daunting host of problems impede delivery of humanitarian assistance.
The Security Council was briefed last December on the effects of the Seleka rebel offensive and there have been regular briefings since then, yet no effective action has been taken. Can the Minister explain why there has been such a failure to act? The CAR is not yet Somalia, but the signs of endemic instability are there and the UN High Commissioner for Human Rights is predicting a full-blown conflict unless urgent action is taken to establish the rule of law and give humanitarian access to people who have such desperate need. Could the Minister give an estimate of when exactly the proposed AU 3,600-strong peacekeeping force is likely to be deployed? Since the promise made last July, less than half the troops in that country have been deployed. Is it not clearly the case that this number is hopelessly inadequate in a country that is more than twice the size of France?
The CAR has huge mineral resources, as the noble Baroness said, including diamonds, gold, uranium and copper, and oil deposits have just been discovered along the border with Chad. This fact in itself is surely a compelling argument for taking more interest in the CAR. Naturally, Seleka leaders are now already benefiting from tapping into the lucrative extractive industry and are controlling the diamond mines. Another deeply worrying factor is that arms are flooding into the country. The flow of AK47s has now been followed by rocket-propelled grenades and heavy weaponry. The UK is the fourth largest European exporter to the CAR and is a key supplier of arms to the unstable region of central Africa, including Sudan and Chad. Now the Seleka rebellion has been boosted by heavily armed fighters and warlords from Chad. Would the Minister clarify the current UK position on sending arms to the CAR? What, for instance, is the justification for the export licences? Finally, what we should be doing this evening is agreeing that the people of CAR deserve to be offered the hope of a better future.
Lord Chidgey (LD)
My Lords, I too, congratulate my noble friend Lady Berridge on securing this timely debate, in which I will confine my remarks to the escalating humanitarian crisis in the Central African Republic. While in Addis Ababa last week, I had a message from a journalist who lives and works in the Central African Republic. He said:
“It's very nasty down there. It smells of mass murder. Since Rwanda and our experience a bit earlier in Burundi, I have not been in such an eerie place”.
The CAR has been in a state of chaos since the rebel alliance known as Seleka seized power in March this year, as my noble friend mentioned. It ousted President Francois Bozize from power, replacing him with its commander, Michel Djotodia. Last month, Djotodia formally disbanded the rebels and integrated many fighters into the national army. The rebels linked to Seleka, however, have continued to launch attacks on scores of villages, prompting the emergence of local civilian protection groups.
Tarak Bach Baouab, humanitarian affairs adviser for Médecins sans Frontières, reports from the CAR that the situation is dangerously unstable. He states that the main problem is that the fighting has specifically targeted civilians. Rural populations had become used to being displaced in the bush during the bush war of 2004 to 2007. However, the latest cycle of violence is different, increasingly taking on a religious undertone. It includes the execution, for example, by armed men of eight people who became separated from a larger group as they fled by truck; and the targeted killing of villagers, which caused many others of the same religion to flee. In Bossangoa, at least 35,000 displaced people are living on a Catholic missionary compound, far exceeding its capacity, while 1,200 people are in a hospital, effectively turning it into a makeshift camp. One thousand people are seeking shelter next to an airstrip—as I think colleagues have mentioned—while 400 others have gathered in a school. They are mostly Christians, afraid of retribution and targeted killings by rival Muslim groups. Similarly, Muslim communities now also fear revenge attacks by Christian militias. People are abandoning their villages, which often end up being burned by either party to the conflict, terrified by the tit-for-tat killings.
Since October, violence and deadly clashes have been reported in Bouca and Garga in the north-west of the country and in Mbaiki in the south-west. Civilians, medical staff and humanitarian aid workers have all been subjected to physical aggression. Médecins Sans Frontières has witnessed the execution of a healthcare worker, as well as multiple attacks on humanitarian staff. The United Nations has warned that the CAR is spiralling down into genocide, and that the international community must intervene to stop armed groups from inciting violence between Christians and Muslims. UN director John Ging is quoted as saying:
“More than half the population is in need of assistance and the scale of suffering is amongst the worst in the world and getting worse”.
Diplomats are saying that the Security Council should eventually consider plans to deploy a peacekeeping force of at least 8,000 to 10,000 troops.
While in Addis Ababa with the Inter-Parliamentary Union last week, I discussed the CAR crisis with the chair of the African Union, Madame Nkosazana Dlamini-Zuma, and her deputy, Erastus Mwencha. Madame Zuma confirmed that an AU mission was being assembled, but stressed that it had to have the right mandate to be effective. Perhaps we should remember here that AU forces tend to do peacemaking not UN-type peacekeeping. Madame Zuma’s deputy was able to confirm that the UNSC had approved the deployment of some 3,000 to 4,000 AU forces, but stressed that this would be a long-term mission to take on and marginalise the rebel groups. He said that the AU troops would take on the governance and state-building roles, while being sure to maintain the role of the AU leadership.
Diplomats locally see the AU as the African response on African security issues, under the primacy of the UN. At a meeting last Wednesday of the AU Peace and Security Council, the UK confirmed a £5 million pledge in humanitarian aid, while the USA offered $25 million. The AU issued a formal Peace and Security Council communiqué of Wednesday’s meeting, calling on,
“all AU members States to contribute to the mobilization of the resources required for the successful deployment of”,
AU Forces. The council also requested that Madame Zuma initiated the necessary steps, while appealing to all member states and international partners to provide the necessary support to address the catastrophic situation facing the CAR. This is very positive language from the AU, but the question is whether it will result in the increasingly vital action.
There are serious questions that I hope the Minister will be able to answer. For example, as noble Lords have mentioned, will the French continue to take the lead in the CAR, as they did in Mali? Will the UK continue to play a subordinate role, limited to urging the AU to engage more and to supporting the French, while not becoming directly involved? Most importantly, will this be enough? The nature of the conflict is religious, Muslim against Christian. The cause is breakdown of government and governance, creating a vacuum of power. The solution is restoration of sound governance, underpinned by re-establishing security through deploying AU and UN forces of possibly 10,000 troops. To avoid a repeat of the horrors of the savagery and genocide of Rwanda and Burundi, the international community must act quickly and effectively.
Baroness Cox (CB)
I warmly congratulate the noble Baroness, Lady Berridge, on securing this debate, which addresses a deeply disturbing situation that has been largely off the radar screen in the international community.
I do not usually speak about countries that I have not visited, but I am moved to speak on the Central African Republic because people whom I know and respect and who know the region very well are so deeply worried. Also, I do have experience in nearby countries; the CAR sits at the heart of an arc of insecurity across sub-Saharan African, taking in Chad, Uganda, Sudan, South Sudan and the DRC. I have visited Sudan, South Sudan and Uganda many times, and I know their beauty and their potential as well as the current crises and horrors which are largely hidden.
As we have heard, the CAR is in the grip of conflict. The wave of violence that has swept from north to south since March has affected the entire population. Since the coup in March and the Seleka offensive, the CAR has descended from a long-term crisis of poverty into a complex humanitarian emergency, resulting from decades of abuse, pillage and corruption by previous leaders and regimes who ruined the country for personal gains. It is said that the diamonds that Emperor Bokassa gave French leaders and politicians could have fed and clothed the entire population of the CAR. The Djotodia Government came into power promising to reverse the collapse of the state, but the task is beyond them and the situation is getting worse. Consequently the population, which had expected drastic changes from the new rulers, started returning to pre-state socioeconomic frameworks and loyalties when their hopes failed to materialise. These local dynamics bred intense fratricidal fighting over shrinking resources, infrastructure, food and water.
Newly empowered forces are vying for power in the changing tapestry throughout the country through the use of arbitrary force. Almost the entire population of 4.6 million has been affected by violence and insecurity; 1.6 million people, one-third of the population, are in dire need of assistance as the humanitarian support system keeps collapsing despite great efforts by NGOs. The conflict has also taken on a sectarian aspect. Very little has been reported in the West, and what little we have seen portrays this as Christians versus Muslims, but that is not entirely the case as yet. The fighting that escalated along the sectarian fault line that runs across Africa from Uganda to Senegal and Gambia is the traditional struggle over water and land rights between the predominantly Muslim nomads and the predominantly Christian homesteaders. However, similar economic and religious conflict in Nigeria over recent decades has been exacerbated by Boko Haram into a self-avowed ruthless jihad against the local Christian population.
In the north of the CAR, a similar threat comes from Sudanese jihadist gangs seeking loot, young female slaves and rare animals; these are the same Sudanese militias who contributed to the massacres and enslavement of hundreds of thousands of women and children in South Sudan in the war that raged there until the peace agreement in 2005. Left unchecked, these Sudanese jihadists can transform the CAR conflict into another vicious jihad. As the Roman Catholic Archbishop of Bangui said, this violence was,
“something new. We haven’t experienced this before. Before we lived in symbiosis”.
Reports of violence and destitution are heartbreaking. There is an urgent imperative to reverse the country’s slide into chaos and to alleviate suffering. However, the international community can provide only a short-term remedy. The challenge lies in addressing the root causes of the myriad grass-roots conflicts, and in assisting the Government to implement a long-term national recovery programme to put the CAR on the right track to stability and growth. Ultimately, there should be no need for long-term large-scale foreign aid. The CAR is an extremely rich country. Land is fertile, water is plentiful, and there are immense quantities of oil, diamonds, rare minerals and ores which can provide wealth for funding the most ambitious reforms. Despite these resources, the CAR is suffering a horrendous humanitarian crisis. The urgent challenge is therefore to develop the resources in a way that will benefit the population. People will stop fighting over scarce resources once food, services, work and prospects for betterment of life are more easily available.
President Djotodia has promised to relinquish power in 2016, and has dissolved the Seleka rebel group that brought him to power; he has also promised to work with the international community on resource development and comprehensive social and economic reforms. His Government have expressed a commitment to human rights reforms, democratisation and credible, free and fair elections. He has also repeatedly committed his Government to implementation of such programmes in partnership with foreign corporations and the international community, and has accepted the need for close scrutiny to ensure accountability, but he has not had the opportunity to prove those offers and commitments. Will Her Majesty’s Government consider helping President Djotodia to put in place such development programmes and supervise their implementation? Will they also encourage, as appropriate, private businesses to formulate, audit and supervise comprehensive programmes where revenues could be devoted to the long-term development of the country to reverse the slide into humanitarian chaos?
Ultimately, the UK will also benefit from the ability to do business in the CAR, with the profit from ethical resource extraction by British companies. I hope that the Minister will be able to respond in ways which will bring hope to a people who are suffering such chaos, and who may be plunged into even greater suffering if the problems are not addressed appropriately and urgently.
The Lord Bishop of Wakefield
My Lords, I warmly congratulate the noble Baroness, Lady Berridge, on securing this debate and on introducing it with such clarity of purpose. Those of us of a certain age will remember graphically the tragedy of the Congo, going all the way back to independence itself. This was followed by the Katanga breakaway movement and the instability there, and the subsequent tragedies made the entire Great Lakes region a terrible, open wound on our common humanity. As we know, that conflict, which began all those years ago, continues in a number of countries.
It is now some four months since the Parliamentary Under-Secretary at the Department for International Development, Lynne Featherstone, described the situation in the Central African Republic as, “the world’s forgotten crisis”. It is shameful that this crisis remains hidden from sight, and that the UN humanitarian appeal still seems hopelessly underfunded. Our inability to address this complex emergency and to provide adequate protection for civilians has seen this crisis spread far beyond the republic’s borders to destabilise a region already facing significant challenges. Other noble Lords have already made similar points in this debate. As the Catholic Archbishop of Burundi has recently noted:
“There is a terrifying, real threat of sectarian conflict”.
The noble Baroness, Lady Berridge, has already hinted at this.
The UN Secretary-General’s recent report to the UN Security Council warned that the human rights abuses, such as,
“arbitrary arrests and detention, sexual violence against women and children, torture, rape, targeted killings, recruitment of child soldiers and attacks”,
are becoming ever more common. The reports from the republic confirm all that has been said by the International Federation for Human Rights, which describes the human rights violations as “international crimes”. Nor can there be any dispute that Seleka is the main perpetrator of such atrocities—that point has been made by a number of noble Lords, including the noble Baroness, Lady Kinnock of Holyhead, in the debate already.
It would be helpful to hear from the Minister what progress is being made by the international community to place sanctions on Seleka leaders and warlords, including the freezing of their financial assets. What steps are the Government taking to respond to the allegations of sexual violence and rape? Not long ago, I was fortunate enough to secure a debate on the prevention of sexual violence in conflict. The Foreign Secretary’s Prevention of Sexual Violence Initiative and its team of experts ought to provide an excellent instrument to assist future prosecutions by the International Criminal Court. This is immediately germane to the conflict to which we are all referring in this debate. Measures such as these would surely go some way towards curtailing the level of violence which we are witnessing today.
It is not surprising that the violence and insecurity that now plagues this country has hampered the delivery of humanitarian aid. As a result, local faith groups and a few national and international NGOs are the primary responders. The Catholic development agency, CAFOD, reported last month that the church is one of the few organisations at present responding to the crisis, by sheltering displaced people, delivering humanitarian aid and addressing religious tensions. Its efforts, however, have been hindered due to lack of funds and problems gaining access because of the violence. Could the Minister assure us that the UK will recognise and strengthen civil society and faith-based groups’ capacity for action, and ensure that they may play a strategic role in the process of reconciliation and reconstruction?
I thank the Minister—a near neighbour of mine in West Yorkshire—for all that she has been saying recently across the Atlantic about religious freedom and strategies for coherence across communities. Most importantly, perhaps, this will assist in the avoidance of sectarian conflict and of the use of religion for political purposes.
Finally, I merely note that it is a tragedy that a country with such abundant natural resources, already referred to by other noble Lords, should be one of the poorest in the world, and subject to such political unrest and economic instability. It is to be hoped that the UN peacekeeping effort will take steps to secure the country’s mining sites, so preventing the republic’s current crisis from spiralling into a wider resource conflict, fuelled by all those greedy for power and greedy for more money.
Lord Jay of Ewelme (CB)
My Lords, I too welcome this short debate and congratulate the noble Baroness, Lady Berridge, on securing it. I must declare an interest as chairman, at least until this summer, of the international medical aid charity, Merlin, which has been active in the Central African Republic since 2007 and in Goma and the eastern Congo since some years before that. It is now working closely throughout the world with Save the Children. I visited Goma and the eastern Congo a few years ago and the sense of insecurity there was palpable. Nowhere else in the world have I had to climb over sleeping soldiers with machine guns to get to the check-in desk in an airport.
Thankfully, there has been an improvement since then. The M23 armed group has been defeated—militarily at least—by government forces. However, given the history of the region, it would be naive to think that sustained peace will now break out, and that human rights violations and suffering will now end. So I hope that the Government will continue to put pressure on the Government of the DRC and on surrounding countries, notably Rwanda, to persist with the peace process and to prevent human rights abuses. The Government have influence—bilaterally and multilaterally—through the European Union, through the United Nations and through the African Union, which is an imperfect but increasingly effective and important organisation, and through human rights organisations. I hope that the Minister will confirm that the Government will continue to use their influence to put pressure on those organisations.
We speak less often in this House about the Central African Republic. As the noble Baroness, Lady Berridge, has said, it is a desperate country. It suffers from chronic instability, with coups, followed by widespread violence, anarchy and displacement. It is in the bottom 10 on the Global Peace Index. One noble Lord said that life expectancy is 48; I have heard that it is nearly 50. There is a one in 10 chance of dying in infancy or childbirth. There must be few more despairing places in the world in which to be born.
Does the Central African Republic matter to us? It does not matter hugely, either politically or economically, though instability anywhere in the world is dangerous to us all. However, poverty and deprivation and hunger and the fear of disaster matter to the British people, wherever they occur. We saw that some years ago in Ethiopia, and we are seeing it now with the response to the typhoon in the Philippines. So it is right that DfID should have a programme in the Central African Republic, and it is right that it should be to fund NGOs, such as Merlin and others, who can make a real difference to the lives of people who have very little hope and very little help. It is right, too, that aid should be offered with the flexibility that recognises that a hospital one day can be an empty shell the next, with the doctors, the patients and the nurses dispersed or working in the most primitive conditions but still needing the outside help that NGOs can provide. I commend DfID for the help that it is giving the Central African Republic at the moment.
Before I end, perhaps I may make some slightly broader points, and one or two which, I know, go slightly beyond the subject of tonight’s debate. First, we are debating some of the poorest and most conflict-prone countries in Africa. However, that is less and less typical of the continent as a whole. There are many examples of political stability and economic progress in Africa: South Africa, Nigeria—almost, anyway—Zambia, Ghana and others. We need to recognise that Africa is changing to respond to humanitarian disasters and conflicts when they occur but also to encourage economic growth in other countries.
Secondly, I want to stress the role that Britain has to play, as I have said, in the Great Lakes, in the Central African Republic and in other zones of conflict, zones of humanitarian disaster and zones of human rights abuse. This is, in the jargon, soft power at work. However, what matters here is our engagement and involvement where we can make a difference. Many noble Lords have spoken tonight about making a difference in the Great Lakes and about making a difference in the Central African Republic, and we can. Going a little more widely, as I said this afternoon in this House, in my view it was right for the Prime Minister to go to Sri Lanka and to highlight the human rights abuses there.
In my view, it would have been right, too, to send a representative to President Rouhani’s inauguration in Iran. It would be right now to reopen an embassy in Tehran rather than duck the difficult issues that the world faces or stay away from them. It would be better by far to engage with and confront the world’s problems, however difficult, and to use our still considerable influence, working bilaterally and through the international organisations to which we belong, to help to solve them in the Great Lakes region, in the Central African Republic or elsewhere.
Baroness Morgan of Ely (Lab)
My Lords, I thank the noble Baroness, Lady Berridge, for securing this debate. The haunting pictures that she painted and, in particular, her understanding of the region brought to life this tragedy that is occurring.
As a politician, I reel from the tragedy and the anguish of the Rwanda genocide. The massacre occurred in 1994 just before I was elected to the European Parliament. More than 800,000 people died, while we, the international community, stood around and did very little. The whole area is a complex morass of local rivalries, competition for power and mineral resources, and tribal conflicts, but the biggest tragedy of all is that the fall-out of that genocide is still occurring for millions of people in the Great Lakes area.
The situation that we have in the region today is a hangover from that tragedy of 20 years ago, when villager murdered villager and neighbour killed neighbour. Forgiveness is hard when the scale of the slaughter is so vast.
There are hints, however, that the African Union, and in particular its leaders, are starting to understand that they have a responsibility to engage more practically and forcefully in this regional conflict and to bring pressure to bear on the groups and countries that are perpetrating and encouraging continued violence and bloodshed.
I have just finished reading Mary Robinson’s autobiography, Everybody Matters. She is now the UN special representative for the Great Lakes region and has established what she calls a “framework of hope”. Hope is something that we must be able to offer the civilians who have undergone years of instability, violence and displacement.
Much of the tragedy of the region has been unfolding in the Democratic Republic of the Congo. From 1998 to 2003 millions died, and that dying continues today. This is the deadliest war in modern African history. It has directly involved nine African nations, as well as about 40 armed groups, and it has left 5 million people dead with over 2 million others having had to flee from their homes.
How is it that a tragedy on this scale is almost unknown today to the bulk of the general public in the UK at a time when we have mass and incessant global communication? There are tragedies occurring in many parts of the world—Syria, the Philippines and Afghanistan—but why is it that we never seem to hear about the African tragedies?
People are living in atrocious conditions, and there are countless examples of human rights violations, including the use of child soldiers. There are severe mental health problems in the region, with people suffering from post-traumatic stress disorder following the events that they have witnessed or been a victim of.
Rape is being used as a weapon of war, and this is absolutely unacceptable. I should therefore like to repeat the question asked by the right reverend Prelate: what action are the Government taking to integrate the Preventing Sexual Violence in Conflict initiative in the DRC and throughout the Great Lakes region?
So what is the framework of hope that Mary Robinson has been talking about? In February this year, a UN-brokered accord aimed at stabilising the Democratic Republic of the Congo and the region was signed. The peace, security and co-operation framework was signed by 10 countries and it includes commitments at the national, regional and international levels to bring peace and stability to the eastern DRC and the region. This framework has been proactively pushed and supported by the UN, the UK and the US, and it has been a platform on which hope can be built. Included in this framework is a commitment by the countries in the region to stop supporting the many armed militias which operate in the region.
A UN-backed intervention brigade has meant a more proactive approach to engaging in the region, and it is this proactive approach which has undoubtedly influenced the outcome and the defeat of the M23. It is the African leaders—members of the African Union—who have been taking the initiative, but some very strong messages from the US and the UK have meant that countries which previously supported these militias have curbed their involvement. This has meant the defeat of this particular group.
We need an assurance that the natural mineral wealth of these nations will not be the cause of further conflict and destabilisation. We need an assurance from these countries that any extractive industries involved in the area will sign up and undertake commitments in relation to transparency and accountability. We need an understanding that local people will have the benefit from this wealth. It is the fact that the African countries themselves are the ones that own this framework that has made the difference.
There are still, however, tragedies unfolding in the wider region; the Central African Republic can be described as a failed state. There are more than 1 million people in the country who are at risk of hunger and the situation is likely to become worse in future months due to a poor harvest. There has been a dramatic escalation of violence since March which must be halted before it spins completely out of control and we see another potential Rwandan genocide on our plates, as suggested by the noble Lord, Lord Chidgey. We cannot stand by again and watch while our fellow human beings suffer in such a horrific way.
I would like to finish by asking the Minister the following questions. What recent discussions have the Government had with the UN special envoy for the Great Lakes region on the situation in the Central African Republic and the Great Lakes region more generally? A regional approach is the one that needs to be taken. Is this an approach that is being undertaken—not just by the African Union, but also by the UK Government and their EU partners?
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
I thank my noble friend Lady Berridge for introducing this timely debate. Both the Central African Republic and the Great Lakes region, in particular the DRC, are facing serious challenges. My noble friend laid out these challenges in harrowing detail. Both suffer from instability and violence impacting on civilian populations and have growing humanitarian needs.
In the Central African Republic, rising violence and vicious attacks against civilians have followed the brutal and unconstitutional seizure of power by the Seleka rebel coalition in March. Its forces have destroyed numerous villages, stoked faith-based violence and terrorised civilians with impunity. Although the Seleka has now—in theory—been disbanded, the violence continues.
The humanitarian situation there is deeply disturbing. The UN estimates that every one of the Central African Republic’s 4.6 million people has been affected in some way by this conflict. More than 600,000 people have been forced from their homes; 2 million are in desperate need of food assistance. The security situation means that humanitarian agencies cannot reach many of those in most need.
The Central African Republic has a new national transitional council, composed of former Seleka, civil society and former opposition politicians. Improving security must, however, be its first priority. It must ensure that civilians are protected, that perpetrators of human rights abuses are brought to justice and that the rule of law is restored. It must also ensure that a dialogue is resumed to reduce tension and increase understanding between religious groups and that humanitarian agencies are able to reach those in greatest need. The national transitional council has committed to the political process begun in Libreville, including a return to constitutional government in 2015. The international community will need to work with it to achieve this aim.
We welcome efforts by the Economic Community of Central African States and the African Union to find a political resolution to the situation in the Central African Republic and their initiative of a regional security mission. This will help to stabilise the country, protect civilians and assist the humanitarian relief effort while the political transition takes place. Last month the European Union Foreign Affairs Council agreed in principle to support such a mission, and we now look to the African Union before making a final commitment of resources.
Furthermore, the UN Secretary-General is due to report today on how the international community can support these efforts. This report should build on the momentum gained by last month’s Security Council resolution, which called for action on the political, human rights and humanitarian situation, and an assessment of the effectiveness of its peacebuilding office, BINUCA.
While we work with partners such as France to press for political progress, the UK will continue to offer practical support in line with its two immediate priorities: first, to ensure that help reaches vulnerable civilians, and secondly, to see security re-established. To ease immediate humanitarian suffering, we have provided £5 million this year to humanitarian partners such as the International Committee of the Red Cross to provide essential medical and food assistance. We continue to monitor the situation closely and stand ready to provide further humanitarian assistance. We will consider with partners how the regional security mission can be supported further.
The noble Lord, Lord Chidgey, asked about the French taking a leading role and the UK’s role. We are of course in contact with France, the USA and other international partners and will engage closely with them over the upcoming UN resolution. The UK has spoken on this at all three of the international contact group meetings and has provided the humanitarian aid to which I have referred.
Before I specifically answer some of the other questions raised by noble Lords, I would like to turn my attention to the situation in the Democratic Republic of the Congo. There are currently around 2.7 million internally displaced people in the DRC. Human rights violations against civilians, including sexual violence, are commonplace. Malnutrition and outbreaks of disease are endemic. However, we could be facing a more hopeful situation. There has been a recent breakthrough in the end of the M23 rebellion and hopes for conclusion of the Kampala talks give us a better chance of building lasting stability in the DRC than has been seen in many years. Ugandan President Museveni and other regional leaders should be commended for brokering this agreement, which will be an important step towards stabilising the region.
We therefore urge the region’s leaders to return their focus to implementing the UN-brokered peace, security and co-operation framework for the Great Lakes. This framework, which was signed in February 2013, must now be implemented. That work must now start in earnest. We urge the regions’ leaders to establish this quickly so that the impetus and fragile gains are not lost. Of course, there is no quick fix to resolving the conflict in eastern DRC. The DRC and its neighbours need to work together with the support of the international community to achieve peace and stability.
The UK has long been a partner of the DRC. We want to see a stable country which fulfils its full potential. The Department for International Development provides funding to those in greatest need, committing £790 million between 2011 and 2016. The DfID programmes are designed to respond quickly to displacement, epidemics and spikes in malnutrition, working with UNICEF and other partners. UK Ministers have been in regular contact with their counterparts in the region; for example, the Foreign Secretary recently spoke to the Rwandan President and Minister Simmonds spoke to the Foreign Minister of the DRC and Ugandan President Museveni. The UK is rightly credited with helping to bring about the reduction in external support to M23, leading to its decision to lay down arms.
My noble friend Lady Berridge and the noble Baroness, Lady Kinnock, raised the underlying religious tensions in this conflict. We are of course aware of reports of radical religious groups in the country and that some components of the Seleka coalition have pursued an agenda which has been divisive in terms of religious cohesion. However, we have no direct evidence of the presence of specific terrorist groups in the country at this stage. The Central African Republic traditionally has seen Christians and Muslims coexist peacefully but we are concerned about recent reports of religious tension. As the noble Baroness, Lady Cox, has said, the issue is much more complex than a single interreligious conflict. The point was also raised by the right reverend Prelate the Bishop of Wakefield, who I thank for his kind comments in relation to my recent comments on the persecution of Christians.
My noble friend Lady Berridge also spoke about the commitment of funds to a security mission. The UN and the EU are unable to make any firm commitments to a regional peace mission until the African Union presents a coherent strategy and details its costs. The UN Secretary-General’s report today is vital in determining these next steps. The UK supports a solution led by the African Union and the Economic Community of Central African States. The UN Secretary-General’s report into options for international support for MISCA—which, as I have said, is due today—will be important in determining what further support the international community can provide.
The noble Baroness, Lady Kinnock, asked why effective action had not been taken so far. Improving the security situation and enabling humanitarian aid to access those in need was for us the important basis for a solution. The EU has set aside funds to support the African-led security mission and a UN resolution is expected in the coming days. We think that that will mandate the mission.
My noble friend Lady Berridge also asked about humanitarian support. I referred to the £5 million which has already been committed but the UK is also urging other donors to step forward and support humanitarian action in the Central African Republic. While access has been restricted due to the ongoing insecurity in the country, agencies have been able to operate there and some aid is getting through.
The noble Baroness, Lady Kinnock, also asked about the 3,600-person peacekeeping force and when that would be deployed. On 19 December 2013 there will be an official transfer from the previous peacekeeping mission to the new African Union-led MISCA. Troops from Chad, Cameroon and the Republic of the Congo and Burundi are expected to take part. The right reverend Prelate the Bishop of Wakefield asked about sanctions. At this stage sanctions have not been ruled out. They will be considered when we can be sure that they will be effective and that they are targeted.
The right reverend Prelate and the noble Baroness, Lady Morgan, asked about preventing sexual violence in conflict. We firmly believe that preventing sexual violence and tackling impunity for these crimes is central to breaking the cycle of violence both in the DRC and more widely. The House will be aware of the Foreign Secretary’s launch of the preventing sexual violence initiative in 2012, which aims to address crimes of sexual violence by increasing the number of perpetrators brought to justice and to help states increase their capacity to do this. At this stage the Central African Republic is not a priority country for the PSVI but the international effort to restore security in the country will help to start to address this terrible problem. However, extensive work is being done within the DRC and we are working with the office of Zainab Bangura, the special representative on sexual violence in conflict, to support the DRC Government to co-ordinate the work of the international community.
The noble Baroness, Lady Cox, asked about support for the President in relation to development programmes and their monitoring. Our immediate priorities are to provide security and a political transition to a constitutional government. However, I will ask DfID to respond on the question of what the longer-term development programme will look like. I will certainly write to the noble Baroness. I will also ensure that DfID takes into account and on board the comments of the noble Lord, Lord Jay, regarding what developmental support could be offered specifically in relation to health.
The noble Baroness, Lady Morgan, also asked about the work of the UN special envoy, Mary Robinson. We have had extensive contact with Mary Robinson, strongly support her work and are working closely with her office in implementing her remit.
In conclusion, there is no doubt that the Central African Republic and the Democratic Republic of the Congo both face enormous challenges. The situation in the Central African Republic is severe. The national transitional council must work with the region and the international community to provide security, protect civilians, provide humanitarian assistance and ensure a return to constitutional government. In the DRC there are many problems to overcome but the M23 rebellion has ended and a framework for peace is in place. It will need the sustained commitment of the region and the sustained support of the international community, including the UK. With these elements in place I believe that real progress can be made both there and in the Central African Republic.
Anti-social Behaviour, Crime and Policing Bill
(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Harris of Haringey
(i) that the requirement is suitable and enforceable; and(ii) that it is reasonable for the person specified under subsection (1) to be responsible for compliance,and must”
Lord Harris of Haringey (Lab)
My Lords, the Minister and I have just made a fleeting appearance at the reception and dinner for the Police Service Parliamentary Scheme. It was a cameo appearance, at least as far as the Minister was concerned, as he had a speaking role. In his remarks he pointed out—I would not say with glee—that we had now completed our consideration of Clause 1 of this Bill. No doubt he is looking forward to the other 160 clauses. He did suggest that we might try to pick up speed. That was no doubt aimed at me as I was sitting directly in front of him.
This amendment, the first on Clause 2, relates to the section of the Bill that says that requirements under these injunctions “must”—I stress the word—
“specify the person who is to be responsible for supervising compliance with the requirement. The person may be an individual or an organisation”.
The purpose of this amendment is to try to flesh out what needs to be done and what the court should be satisfied about before it designates a person, either an individual or an organisation, to be responsible for the compliance with the requirements of the injunction.
Obviously the first thing is to specify the persons concerned. It would be useful for the Minister to give us a little bit more insight into the range of persons he thinks this provision will apply to. There is obviously a world of difference between that person being, for example, the parent or guardian of a young person who is accused of being responsible for anti-social behaviour and the responsible person being the local police force, the local authority or the local probation service. It would be useful to understand what the balance is expected to be between those sorts of requirements as far as the Bill is concerned.
The substance of the amendment is that before the court requires somebody to be responsible for compliance, it must be satisfied that the requirement itself is suitable and capable of being enforced, and it is reasonable for the person charged with the responsibility of ensuring that the requirements are met to take on that responsibility. But if we consider the circumstances of a parent—an individual charged with this responsibility—that may be onerous. If they are a parent, they may feel obligated to take it on, but it may be impractical. If the underlying problem is that the parent cannot control their near-adult children, what is the point of this? Is it in fact suitable, appropriate, and reasonable for that person to take on that responsibility?
If it is a local authority, probation service, housing authority or the local police service, how reasonable is it? Is the court going to hear evidence as to whether or not they will be able to enforce the requirement? Do they have the resources to enforce the requirement?
Earlier today, I was talking to someone who has been advising me on the Bill. As it happens, they witnessed a crime a few days ago. They went along to the station with another witness to report the crime. When they got to the police station they were told that, unfortunately, the police service does not have the capacity to take two witness statements at once because of the number of officers on duty at the time. If that is the situation, how confident can we be in the current financial situation that the police service will have the resources to be responsible for enforcing some of these requirements? If it is not the police service it could be local authorities, which are facing reductions in their budgets of 30% or 40%. Where will they find the resources to manage this? These issues need to be addressed.
The purpose of the amendment is to say that the court needs to be satisfied about these things. One of the great concerns about the ASBO regime was the number of breaches, but it would be very silly if we created a new system that would result in a series of breaches simply because the people charged with ensuring compliance do not have the resources, the ability or the facilities to make sure that enforcement is achieved.
I am sure that the Minister will be able to help me with something else. I have searched through the Bill and cannot find what is intended to be the consequence for the person designated under Clause 2 if they fail to ensure compliance with the requirements of the injunction. Will they themselves be in contempt of court? Does that mean that chief officers of police will be subject to two years’ imprisonment because they have failed to achieve compliance? What is the requirement? If there are no penalties for failing to achieve compliance, what is the point of this? Again, I would be grateful for the Minister to enlighten us as to precisely what will happen in the event of the person who the court “must designate”, in the words of the Bill, to ensure compliance if they fail to do so either through wilful neglect, because they do not have the resources to do so or perhaps because it is impossible to enforce compliance because the individual is beyond those sorts of controls. I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, I wish to speak to Amendments 20J, 22F and 96 in my name and that of my noble friend Lord Rosser. It is a slightly strange grouping. They do not hang together that well, but I hope I can help my noble friend Lord Harris on the points that we are seeking to address.
In principle we welcome the addition of positive requirements. There is no question about that. We introduced the concept, partly through individual support orders. The submissions that were made in the other place in the committee’s evidence sessions and the correspondence that we have received from local authorities and the police show that the point is not dissimilar to that made by my noble friend Lord Harris. It provides some clarification on how the requirements will be funded.
I took the opportunity, in the huge avalanche of a rainforest of paper that we have on the Bill, to see what the impact assessment said on the costs. Basically, every cost is caveated; the impact assessment is unable to make an estimate. Not all costs could be quantified and no benefits from reduced anti-social behaviour could be quantified. The costs took no account of the gains and losses. The Local Government Association is concerned that,
“given that use of positive requirements is predicted to impose an additional financial burden on councils, the overall estimates that the injunctions will be cheaper to use than ASBOs may not be right, and councils may be placed under an additional financial burden”.
The Association of Chief Police Officers gave evidence to the Home Affairs Committee; it stated its concerns about agencies’ capacity and capability to deliver this support in difficult economic times, and said that that had to be considered. I was taken aback by the remarks in Committee in the other place of the Minister, Jeremy Browne. He said that it was important to establish how possible clients would be funded at the point of injunction being issued in the court. He did not agree that individual organisations should be responsible for supervising the compliance should be liable for the costs. He said,
“to take it literally momentarily, where the local authority, for example, applied for an injunction that was to include attendance at a drug rehabilitation course, the teacher delivering that course could be put forward to supervise compliance. Although the teacher would be best placed to monitor attendance and engagement with the course, it would not be right for the teacher, or school or college, to cover the costs of the course. Instead, we could expect the local authority, as the applicant, to cover those costs”.
But he added:
“That is because the downstream benefits of changing the perpetrator’s behaviour fall to them and other agencies, such as the police”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 25/6/13; col. 172.]
Is the Minister saying that if we can change the behaviour of somebody who is involved in drugs and crime in some way, and the interventions for positive requirements reduce that offending behaviour, the police or the local authority saves money? It was as if they incurred the costs. We know that early intervention reaps rewards further down the line, but that does not help those bodies pay for the costs at a time when the Minister is imposing positive requirements on the authority.
I am interested to know what assessment the Government have made on the savings that have been made. I understand from the impact assessment that they are unable to quantify the costs, but the Minister in the other place is saying that they will save money, so they should spend the money in the first place. That does not seem to be a sensible way to pursue legislation such as this.
I am also curious to know whether any assessment has been made of the impact that having to meet those costs will have on the imposition of requirements. If a local authority or the police say that we cannot afford to do X, Y or Z, or, if we could, we cannot afford to monitor it, there is little point in imposing those requirements if there is no funding to pay for them.
It is highly likely that one of the drivers for positive requirements will be the costs involved. It is a bit of a Catch-22 situation if the usefulness of the positive measures is limited by the available funding and quality services to meet those needs. That could create a postcode lottery, because the position could differ across areas of the country. We all know that there are some vagaries in the criminal justice system, but the position for somebody in Manchester could be completely different from that for somebody in Basingstoke or Basildon, for example. That causes enormous concern. If the needs of the person on whom the requirement is being put are being met, that is fine, but the danger is that those needs will not be met because the funding is not available.
Lord Greaves (LD)
The noble Baroness has made some extremely interesting points. I was with her for quite a long time. Will she tell us the equivalent cost for pursuing an ASBO? Why does she think that an IPNA that is breached and results in imprisonment is actually weaker than an ASBO?
Baroness Smith of Basildon
The reason why an IPNA is weaker is because it is not an automatic criminal matter if it is breached. That is what makes it weaker. It is quite right that there is a higher test for bringing in an ASBO in the first place. It is not just a case of annoyance or nuisance, but harassment, harm or distress and if an ASBO is breached then it is automatically a criminal matter. It is not with an IPNA. That is why it is a weaker remedy for those suffering from severe anti-social behaviour.
Lord Greaves
Does the noble Baroness have the answer to my question about the cost of an ASBO? My understanding is that it is comparable, but I may be wrong. If I were to breach an ASBO and ended up in prison, or if I were to breach an IPNA and ended up in prison, would my experience in prison be much different?
Baroness Smith of Basildon
I just hope that that never happens to the noble Lord. I am sure that he would never give this House any cause to accuse him of nuisance or annoyance and therefore breach his IPNA. Actually, it would make a difference. If somebody breaches their IPNA and it goes to the full conclusion of being taken to court and their receiving a custodial sentence, the level at which they have breached is very low. With an ASBO, there is a much higher threshold. In terms of costs, my information is from the police, who say that it is a more complex process to pursue breach of an IPNA than it is with the automatic breach of an ASBO. We also see the number of breaches of ASBOs, because of their seriousness, coming down. That is why the police indicate to us that they think that there are significantly greater costs in dealing with a breach of an IPNA.
I do not know if the noble Lord had the opportunity to read the reports in the other place of the evidence-taking sessions before the clauses were debated. Gavin Thomas, who is the vice-president of the Police Superintendents’ Association, said,
“there is a cost because we have to have people to pull together the case, take it to court and enforce it, so there is a cost”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill, 18/6/13; col. 9.]
In written evidence to the Committee, the noble Baroness, Lady Newlove, who spoke eloquently at Second Reading, said that she was concerned,
“that the injunction to prevent nuisance and annoyance could potentially add to the workload of front line officers because of their lack of knowledge of civil law”.
That is a matter that has been raised by the police as well.
We hear quite horrific tales of anti-social behaviour. We should be under no illusion that it is just nuisance and annoyance on the odd occasion; there are some serious cases. As a former Member of the other place, I dealt with constituents. In one case, a man could no longer sleep in his home, another would sleep on the kitchen floor; somebody else was too frightened to go to sleep. Those were ongoing cases.
In some cases, enforcement was the problem, but we need to have the right tools. The Government are seeking in the legislation to reduce the number of tools available to those taking action and then to put in place additional costs, which will make action difficult to enforce. I am asking the Minister for an explanation of why, when ASBOs are becoming more effective, are working and have a value, they are being reduced.
The Minister is shaking his head at me, but there is a great deal of difference between somebody causing nuisance and annoyance and somebody causing harm, distress and harassment. They are very different and there are times when different measures are appropriate. So far, I do not think that the noble Lord has satisfied people in your Lordships’ House, on amendments to other clauses or on this one, as to why the Government are seeking to deal with just annoyance and nuisance while losing the measure of an ASBO, which has served us well. It is not perfect, and we are happy to see changes to it, but the changes which the Government propose do not address the problem.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I should begin by refuting the suggestion of the noble Baroness, Lady Smith, about our focus on IPNAs at the expense of other measures. She has admitted that there are six measures involved in anti-social behaviour prevention and control, so the IPNA is one part of a suite of measures in the Bill. She makes no mention of the criminal behaviour order, which clearly provides much of the cover which was given by the ASBO.
Baroness Smith of Basildon
The noble Lord is wrong. My second amendment refers to criminal behaviour orders and I spoke to those in the course of my speech. I am surprised that he says I did not mention criminal behaviour orders when I tabled a whole amendment on them.
Lord Taylor of Holbeach
Yes, but I am dealing with Amendment 96 and in speaking to that amendment, the noble Baroness made no mention of criminal behaviour orders. She sought—perhaps accurately, in her eyes—to make a comparison between the IPNA and the ASBO. The two are not meant to be the same or to deal with the same problem in the same way. There is a suite of six provisions in the Bill, which are all meant to deal with situations which the Anti-social Behaviour Act has not managed to address. ASBOs are not an effective power. I say from this Dispatch Box that they are becoming increasingly less effective. Let us look at the published statistics: up to the end of 2012, 58% of anti-social behaviour orders were breached at least once and just over 43% were breached more than once. A staggering 68% of ASBOs issued against under-18s have been breached. By any objective measure, if an order has been around for more than 10 years and had plenty of time to bed down but has such a high breach rate, that is not evidence of success. I am surprised that the noble Baroness is so wedded to the idea of maintaining it.
If one wants to seek the root cause of the failure, it is that ASBOs can take months to obtain. They fail because they leave victims exposed while being obtained and because they do so little to address the offending behaviour, so are we surprised that the number of ASBOs has declined year on year since 2005? That is why we are abolishing the ASBO and the failure that goes with it, and replacing it with more effective powers in the IPNA and the CBO. By replacing the hotchpotch of 19 ineffective and under-used anti-social behaviour powers with six new, flexible and more effective ones, we will give front-line professionals that toolkit which the noble Baroness sought in her speech. The new injunction will replace anti-social behaviour orders on application, anti-social behaviour injunctions, individual support orders and intervention orders. As I said in earlier debates, the injunction under Part 1 is modelled on anti-social behaviour injunctions which have been used successfully by social landlords for over a decade. For more serious cases, where a perpetrator has a criminal conviction, the criminal behaviour order will be available. Like the injunction, it can be used to impose prohibitions and requirements, but breach is a criminal offence with accordingly tough sanctions.
Baroness Smith of Basildon
I apologise for intervening on the Minister, but I wonder if he thinks he has answered the question that I asked about costs. If he does, his response was completely inadequate. I asked what assessment had been made of the costs and quoted the impact assessment, and I asked whether the Government had considered whether or not the imposition of positive requirements would be related to the funds available. The Minister has said that these will be made and funded locally, and that he makes no apologies for local government deciding how they are funded. If there are additional costs on local government, surely the Minister and the Government should have some understanding of what those costs are going to be. He may be coming to the point about what guidance will be issued, but I think that he said that there would be no guidance on what measures could be introduced.
Lord Taylor of Holbeach
I was coming to that point, but I shall just deal with the cost element. The impact assessment, as the noble Baroness rightly says, did not hazard a guesstimate of that figure; in many ways it would have been a meaningless guess because we cannot know all the facts. We cannot know the extent to which local organisations, local authorities and voluntary organisations are already participating in much of that activity which is designed to help young people, or indeed older people, who are in difficulties. Much of the voluntary sector is dealing with this work. The whole point of the framework of the IPNA is that it provides a framework in which groups such as this can operate effectively. We are certain that there will be savings as well as additional costs in the reduction of anti-social behaviour that is going to follow from these measures. I will continue, if I may, because the noble Baroness wanted to know about the guidance.
The emphasis on empowering front-line professionals and giving them the flexibility to respond to individual needs is the reason why we have not provided detailed guidance on this point. That said, we have published draft guidance for front-line practitioners where we have included a steer on positive requirements and issues that local practitioners might like to consider. Pages 25 and 32 of the draft guidance provide examples of the sort of positive requirements that might be possible. We have deliberately not set out to provide an exhaustive list, as we do not want to produce a limited menu. Instead, we want to allow local practitioners, who are best placed to judge what positive requirements are likely to have the greatest positive impact on an individual, to remain unfettered in their use of positive requirements and allow for new and innovative interventions to be developed.
As I said, this is a draft document and if further, more detailed guidance would help front-line practitioners we can look at this again as we work to produce a final version. If noble Lords feel they can contribute to producing the final document, they are, as I said earlier, most welcome to do so. It is a testament to our commitment that we have published draft guidance. I have stood at the Dispatch Box and had to talk about guidance which is to come, which may be part and parcel of the implementation of legislation, without having the document in front of me. In this Bill, we are fortunate: we have the draft guidance on which we can base our discussions. We intend to publish this on a non-statutory basis, but I am quite prepared to acknowledge that we are ready to consider whether our commitment to produce such guidance should be reflected in the Bill.
Baroness Smith of Basildon
I apologise to the noble Lord for intervening, but I want to clarify, to make sure that I have not misunderstood what he said. Is he saying that, because they cannot quantify the costs at the moment, the Government do not know what those costs will be? Will he give an assurance that the Government will meet those costs or is he saying there will be no contribution from the Government to any additional costs incurred by local authorities in IPNAs or criminal behaviour orders?
Lord Taylor of Holbeach
I can give the noble Baroness some sort of figures on the comparative costs. It has been suggested that it will cost £1,500 to pursue proceedings for breach of an IPNA and that was quoted. However, the National Audit Office reported in 2006 that the average cost of prosecution for breach of an ASBO was around £1,500. So, if the figure for pursuing a breach of Part 1 is correct, it will be no more expensive. In addition, the new injunction will be quicker to obtain than a stand-alone ASBO. The National Audit Office found the average cost of obtaining a stand-alone ASBO was about £3,100, compared with a cost of £1,600 for one of the existing injunctions which, like the new injunction, uses the civil standard of proof. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions and enable—
Lord Taylor of Holbeach
I will finish what I am saying, if I may. I will not sit down before the noble Baroness has a chance to intervene. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions, enabling agencies to act more speedily in stopping further harm to victims.
Baroness Smith of Basildon
I am grateful to the noble Lord for allowing me to come back on him, because he misunderstood. I was asking about the costs and the funding of positive requirements. Although I mentioned the cost of proceeding with the breach of an IPNA, that was not the point I raised when I intervened on the noble Lord. He must have had an earlier note. I am asking if I had understood his point about the cost of positive requirements and whether the Government would make any contribution, bearing in mind the additional burdens doctrine. Was he saying that there will be no additional costs in pursuing positive requirements?
Lord Taylor of Holbeach
The Bill makes no provision for the funding of costs.
Lord Harris of Haringey
My Lords, I assume that the noble Lord has finished. I found the reply that the Minister gave rather disturbing as regards the issues it covered and did not cover. He spent the first half of his remarks talking about Amendment 96. We have yet to hear the reason why it is necessary to repeal all the ASBO provisions in advance of bringing in the arrangements for the new injunctions. That is quite an important point. The Minister supports a Government who I think believe in free-market principles. If the ASBO and the procedures around it are so inadequate, do not work and are so costly, what is to be lost by allowing both to coexist, at least for a period, until we see how the new regime works? In practice, people—local authorities, housing bodies or whatever—might vote with their feet and decide whether to use the IPNA route or the ASBO route. That would be consistent both with the Government’s principles about a free market and with their localism principle, and would also allow a bit of reality to creep into this—which would be unique for this Government and probably for all previous Governments. People would discover which system works by looking at the arrangements that people followed at a local level. The Government need to explain why it is not possible for the two systems to coexist so that we can see which ones work and which ones do not.
Lord Taylor of Holbeach
The answer is very simple: we do not think that ASBOs are effective. We are proposing a Bill that deals with anti-social behaviour and in our view the measures that currently exist do not meet the requirement that we as a Government want to present as a remedy for anti-social behaviour. That is why we do not support the retention of the ASBOs. They are expensive, not effective in reducing anti-social behaviour and not effective in providing a remedial pattern of behaviour for young people who get into trouble. We want to ditch them and replace them with those measures which the Bill provides for, which give a much better and positive way forward for young people and protect victims.
Lord Harris of Haringey
My Lords, I do not think that anyone doubts that the Minister and the Government are keen to tackle issues about anti-social behaviour, as indeed were the previous Government, and as I suspect has been the case for very many years. Nobody is pretending that ASBOs are perfect or that they solve the deep-seated, underlying difficulties of anti-social behaviour. However, we are saying that these new arrangements are untried. We simply do not know whether they will work or whether they will be better. If they are so much better, as the Minister assures us they will be, then if the two coexisted on the statute book, people all over the country, when dealing with cases of anti-social behaviour, would opt for the noble Lord’s system as opposed to this dreadful, outdated system that he is apparently now so keen to scrap. However, if—just if—it turns out that under certain circumstances the ASBO route might have been better, that will no longer be available. I fail to understand what is lost by leaving in place the existing arrangements, at least for a period, to see how things work out in practice.
I turn to what the noble Lord calls the “positive” elements of the arrangements. These will not be cost-free. Ensuring compliance will involve costs. If an individual is involved—and some will relate to individuals—it will involve costs in terms of that person’s time and maybe their expenditure. If it involves an agency, such as a local authority, which is required to provide particular opportunities for individuals concerned, there will be the cost of providing those opportunities. There has to be transparency as to what those costs are going to be and how it is going to be delivered. If there is not—given that local authorities are facing very significant reductions in their budgets and the voluntary sector is facing a crisis in its funding, in many instances, or in the demand on its services—there is a real risk that the Government are creating these new injunction-based powers but setting them up to fail. I believe the Minister and the Government actually want to do something positive about anti-social behaviour, so I think it unwise to be setting up arrangements, and setting them up to fail, without addressing the question of how the funding is to be taken forward.
Briefly, at the end of my remarks, I return to the amendment that I proposed. The Minister has said that the requirement I am proposing should be included in the Bill is not necessary because it is already there. He quoted the Bill as saying that,
“the court must receive evidence”.
However, that is not the same as,
“the court must be satisfied”—
which is the phraseology that I use. The court could receive evidence but the local authority might stand up or be represented at the court and say, “We no longer have the resources to provide this”. The court could still, in the light of that information, none the less say that it is satisfied and will make the order. Alternatively—and this is also quite possible—a parent or guardian could say, “We give the undertakings. We are confident that we can prevent the recurrence of this type of behaviour and will take the necessary steps”. However, receiving that evidence and being satisfied are not the same thing.
I ask the noble Lord to consider these matters again and to come back to us before Report to say whether these requirements will work—or whether we should not be assured that we are not setting up individuals or organisations to fail by asking them to do things that they cannot deliver, that they are not funded to deliver or, frankly, that no one really believes will happen but simply satisfies them. These new arrangements, in which the Minister quite properly has a great deal of confidence, could otherwise eventually be deemed a failure simply because these issues were not addressed. As I am sure I will receive this information and those assurances between now and Report, I beg leave to withdraw the amendment.
Lord Flight
“(c) the anti-social behaviour in which the respondent has engaged, or threatens to engage, consists of intentional or deliberate anti-social behaviour of a potentially persistent nature”
Lord Flight (Con)
My Lords, I have tabled this amendment in support in particular of Westminster Council—my wife is a councillor there—but it has been supported on a cross-party basis by the other main city councils of Birmingham, Manchester, Nottingham and Southampton. I suggest that they cannot all be wrong in believing that there is an issue here. These major city councils have the quite demanding job of keeping public places free of nuisance for both residents and tourists, particularly in their city centres. Westminster has self-evidently the particular issue of a huge tourist presence in, effectively, most of the key places in London’s city centre.
This is not my natural territory. It has taken quite a lot of effort to get my mind round fairly obscure, and certainly complicated, legal issues. If I make the odd technical error, please accept my apology. This amendment is largely about the problem of persistent and aggressive begging in city centres. This has been an area where the ASBO has worked reasonably well. Local authorities can address the problem by applying for ASBOs; they can be obtained without the individuals involved having a criminal record, but when the ASBO is breached a criminal offence is committed and the local authority can have offenders arrested and prosecuted. Certainly, not only the politicians at Westminster but Westminster City Council staff believe that the present arrangements have worked pretty well in dealing with the problem of inner-city aggressive begging.
The first argument is, to put it simply, “If it ain’t broke, don’t fix it”. It is a difficult area. Under this Bill, as we know, ASBOs are to be replaced by IPNAs, but a breach of an IPNA is no longer an automatically arrestable offence. Local authorities can apply for an IPNA, but they would have to take evidence of a breach to court and apply separately for an arrest warrant relative to cases of persistent begging. This is not only hugely bureaucratic and cumbersome but simply would not work, because the offenders invariably have no fixed address; by the time the subsequent power of arrest were granted, it would be useless, because they would not be able to find the offenders. Concerns have been raised about the provisions in the Bill for this problem by Westminster council with Jeremy Browne, who was the Minister, and now with Norman Baker, but there have not been any meetings or no direct response has been received. Concerns have also been raised in the other place by Westminster’s MP, Mark Field.
My amendment in essence seeks to enable an IPNA to be used on a similar basis to ASBOs to deal with the aggressive begging problem. It adds a wider but not universal set of circumstances of,
“intentional or deliberate anti-social behaviour of a potentially persistent nature”,
to enable a court to be able to grant an IPNA with an automatic power of arrest if the IPNA is breached.
The Government’s response so far has been that IPNAs are designed to deal with lower threshold offences and to operate as a pre-emptive tool, so they do not want them to have beefed-up powers attaching to them across the board. My two comments are that IPNAs already are to have powers of automatic arrest for violent or a threat of violent behaviour, so the principle has already been breached. Secondly, my amendment does not give beefed-up powers across the board but only under special conditions of intentional or persistent and deliberate anti-social behaviour, which is what persistent and aggressive begging constitutes. Norman Baker’s stated objection to the stance of the main city councils was that what is proposed is a power of arrest to every injunction, but that is not correct; it is a quite specific power.
The Government’s main argument and objection to this amendment is that it is not needed as the Bill contains new powers that can deal with the problem of aggressive begging and, in particular, the two powers of the CPN and the public spaces protection order—and, I might add, in extremis the dispersal power under which police can clear an area of undesirable people. If a community protection notice’s warning is first issued and then breached, a CPN can then be issued whereby, if it is breached, police can have an automatic power of arrest. But the key is the additional stage prior to issuing a CPN, when the relevant offending individual or group has to be issued with a written warning notice.
Westminster, in particular, argues that warning notices would increase the time and costs of addressing the problems of persistent begging, and would be likely to decrease the ability of local authorities to respond promptly to these problems. If the requirement for the written prior notice of offending behaviour were removed, my understanding is that local authorities would be perfectly happy to use CPNs to address this issue. There is also the financial point that, under the present ASBO arrangements, the Crown Prosecution Service handles the prosecutions but, with CPNs, the local authorities would have to pay the prosecution costs.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I support the noble Lord, Lord Flight. I remind the Committee that I sit as a magistrate in central London, and in my time I have certainly given many ASBOs for persistent and aggressive begging. When I sit, it is relatively commonplace to have an ASBO application from Westminster City Council, and it is something that magistrates are experienced at dealing with. As I said at Second Reading, in my experience, magistrates are more sceptical about granting ASBOs than they were when they were first introduced, and certainly not all ASBOs that are applied for are given.
The noble Lord, Lord Flight, has set out the case very well. I have been lobbied by Westminster City Council and the central point is that, if the existing mechanisms within local authorities are used to dealing with a particular administrative structure, there will inevitably be a cost if one changes that structure. Therefore, I think that it is incumbent on the Minister to explain why he thinks that the new measures he proposes to introduce will work more effectively and potentially reduce those costs. As I said, certainly from the point of view of magistrates administering this, it is a relatively well oiled machine, and we take a sceptical view when we put them in place in the first instance.
Baroness Hamwee (LD)
My Lords, the noble Lord knows that I have concerns about this amendment. I hear what he says about other cities. I have obviously not been able to undertake a scientific assessment but there seems to be quite a variation in views—in London, at any rate—about whether this is the right way to go about the matter.
The language in the amendment seems to be very general;
“intentional or deliberate anti-social behaviour”,
could mean pretty much anything, as we heard earlier. I would have thought almost all anti-social behaviour could potentially be persistent; most conduct would be potentially persistent, but that is not really my concern. The begging that we have heard about troubles me a lot for a variety of reasons; one of them is the criminal gangs behind the beggars. I am not immediately convinced that this measure, dealing with those who are forced into the activity, will actually solve the problem or deter the activity. I am also concerned—though I accept this might be the position with the current arrangements—about the revolving door of arrests. Some are in the cells overnight and then they are out again.
There is other legislation as well; I am sorry that the Minister has apparently not responded at length. I had understood that quite a long letter giving the Government’s views had gone out. That is a matter for my noble friend. I have not seen the letter; I just heard that there was one. It dealt with the other legislation, which might be quite old. That does not mean to say that it is necessarily bad.
I went to the noble Lord’s briefing with Westminster City Council. I heard Councillor Aiken’s views very powerfully expressed. I did not gain the impression that everything was okay now, so I was a bit confused as to the argument against scrapping the current system. I may have been wrong, but I picked up the feeling that there were problems now.
Lord Flight
I would like to respond to that. Yes, there are problems; persistent begging is a very hard thing to deal with. I think that the Westminster argument is that its present tools include a tool which has had some success; it is concerned that the new arrangements, because of the double doing, would be less useful.
Baroness Smith of Basildon
My Lords, I listened carefully to what the noble Lord, Lord Flight, had to say in this debate. I noticed at the beginning that he was not 100% convinced that he had the right words in the amendment. That is less important in Committee than the intent of what he is seeking to do. Likewise, I was sorry not to get to the briefing last week with Councillor Aiken, but she also wrote to me. I was very struck by the comments she made in her letter. I do not think it is the point that the noble Baroness, Lady Hamwee, made that everything is perfect now. Her concern is that there are serious problems and she would be quite happy to see improvements in the legislation to help the council address the issues it is facing. The fear is that the new legislation will weaken its ability. The noble Lord is indicating that I am correct in my understanding of her views.
Councillor Aiken, who, I understand, is the cabinet member for community protection, is probably at the sharp end of this more than any of us in your Lordships’ House are in dealing with these matters. She says:
“While I recognise that the current legislation to deal with anti-social behaviour may require review”;
I think that all of us would accept that improvements can always be made. She goes on to say:
“It is therefore worrying that a Government committed to ensuring people feel safe in their homes and communities and are intent upon freeing up crime fighting capacity, is instead seeking to pass legislation which will weaken local power to protect communities and increase bureaucratic process around enforcement”.
It takes a lot for a councillor to be writing to Ministers and Members of your Lordships’ House with those kinds of comments, when all they are seeking to do is improve their position.
My impression from her letter, as well as information which I have looked for myself, is that the council is being pretty effective in tackling this very serious problem, and there may be a case that more tools are needed to assist them in doing so. They have some suggestions. The noble Lord, Lord Flight, suggested meeting councillors to listen to their concerns. I think that they would be very pleased to know whether their approach and their tackling of this issue would be improved by the Government’s proposals and whether their fears could be allayed. Clearly, there cannot be a situation whereby a council dealing with a serious problem affecting our capital city, and, presumably, a number of other cities, is worried that it is going to lose the capacity to deal with something that has to be addressed and which causes great concern to local residents.
I hope that the Minister or his colleagues can undertake to have a meeting with the council. That would be a sensible way forward and perhaps the noble Lord, Lord Flight, would report back on Report. He mentioned aggressive begging, and there are other kinds of aggressive behaviour, including harassment, that cause great distress to residents and visitors. I hope that the noble Lord will accommodate the comments made by the noble Lord, Lord Flight.
Lord Taylor of Holbeach
My Lords, I am very pleased to have the chance to talk about this issue because I am concerned that Westminster City Council, a flagship council, has expressed anxieties. I reassure my noble friend Lady Hamwee that the letter has gone to Councillor Nickie Aiken from my honourable friend Norman Baker, who was the Minister responsible for crime prevention and was the lead on this Bill in the Commons. I have met with my noble friend Lord Flight. I hope that we had a very productive discussion. Much of the information that he has been able to give came out of that meeting on Friday. It is now Monday and things have moved in a rather compressed way.
I will conclude my remarks in saying what I intend to do but, first, I should express that we are aware of the problems of persistent and aggressive begging with which a number of councils are faced. I attend the meetings of the safer communities board of the LGA fairly regularly nowadays because I enjoy them and find them very useful. When I went, I think that I was able to explain to those gathered, who included the leader of Bradford City Council—a large city—that the measures provide a portfolio of remedies to deal with this sort of circumstance. The criticism from Westminster City Council came to me rather out of the blue.
However, the Government appreciate those concerns and acknowledge the impact that aggressive begging can have on individuals, businesses and communities. I am aware that Westminster is working with its partners to do what it can to tackle the problem. I think that noble Lords will realise that it is extensive. Westminster has expressed its concerns. It is important that councils, the police and others work together on all these matters, which is one of the underlying themes behind this Bill.
As I have said, last Friday I met my noble friend Lord Flight. It seems that the concerns about the injunction to prevent nuisance and annoyance stem from its differences from the ASBO with regard to powers of arrest. The breach of an ASBO is of course a criminal offence and, as such, someone can be arrested simply for a breach. In contrast, the new injunction is a purely civil measure with civil penalties for a breach. Consequently, we do not consider it appropriate or proportionate for it to have an automatic power of arrest. As such, we have limited the court’s ability to attach a power of arrest to the most serious cases; that is, cases where a perpetrator has been violent or has threatened violence, or if there is a significant risk of harm to another person.
I understand the intention of my noble friend’s amendment and I am sympathetic to local councils’ concerns. He has mentioned other councils and I accept that others may have notified him of their concern. However, I should like to make two points. First, the effect of the amendment may not actually achieve its aim and, secondly and more importantly—we can change the amendment but it is a question of how the Bill operates—there are more appropriate powers that could be used as provided for in this Bill.
The amendment would require a threat of,
“intentional or deliberate anti-social behaviour”.
As has been mentioned by my noble friend Lady Hamwee, this is rather a broad brush. These words insert subjective elements that raise evidential thresholds for enforcement agencies and the courts. The courts would have to consider the state of mind of the perpetrator in ensuring that the power of arrest has been used lawfully. Before arresting an individual under the amendment, the police would need to satisfy themselves that the perpetrator had deliberately or intentionally committed anti-social behaviour. That may look easy to do on the face of it but may be different in practice. For example, it has been suggested that some of the foreign nationals who beg aggressively are coerced into these activities by organised crime gangs. My noble friend Lady Hamwee referred to that too. This is rather different from the current situation with the breach of an ASBO where there is no subjective element. That is why we say this amendment may not help councils in practice in the way that they hope.
However, there is a more fundamental reason why I believe the amendment is not necessary. I can understand why councils have focused on the injunction. It is, on paper at least, the direct replacement for the ASBO on application. However, it seems what the councils actually want are swift, efficient and cost-effective powers to prevent anti-social behaviour, supported by meaningful punishments. As I indicated earlier, as did my noble friend, such powers are in this Bill. The community protection notice under Part 4—which we will being coming to, I hope, soon—is intended to deal with particular ongoing problems or nuisances which negatively affect the community’s quality of life. The notice could be used to direct an individual to stop causing the problem and can, if necessary, be served on the spot. While a written warning is required, depending on the behaviour in question, it would not be necessary to wait too long before the actual notice was issued. It could almost be done immediately where appropriate and necessary.
The notice could be used to stop a specified action or wider behaviour, such as aggressive begging. It will then be available to councils as well as the police to ensure either agency was able to deal with the problem there and then. Breach of any requirement in the notice—for instance, failing to cease begging in a certain area—will be a criminal offence, subject to a fixed penalty notice or prosecution. Critically, a person may be arrested on suspicion of a breach. On conviction an individual would be liable to a fine of up to £2,500. That to my mind is a significant punishment.
Alternatively, where a persistent problem is detrimental to the local community’s quality of life, the public spaces protection order could be used by the council to impose restrictions. For instance, in areas where aggressive begging is a problem, a blanket ban could be imposed on it, ensuring that the council or police can act quickly when it occurs. In addition, the order can be used preventively, so if the council reasonably believed that the problem would simply move to another location—which is a real problem—it could use the new order there too. Local authorities would need to consult the police and other interested parties before seeking to impose an order, but the decision to use the new power would be theirs. It would be vested in local authorities. Again, breach of the order would be a criminal offence, subject to a fixed penalty notice or prosecution. Here again, a person could be arrested on suspicion of a breach. On conviction the offender could face a fine of up to £1,000.
My noble friend mentioned the dispersal power under Part 3, which may be useful to deal with individuals or groups causing problems by allowing the police to move them on immediately and away from the area where they habitually operate, for up to 48 hours. We will talk about how dispersal orders operate when we come to consider relevant amendments. Failure to comply with a direction is a criminal offence which will normally be tried in the magistrates’ court or a youth court for people under the age of 18.
There is a portfolio of measures in this Bill which can be used by local authorities, I think, effectively. The fact that begging persists here in the capital is an indictment of the fact that we still do not have effective measures to deal with it. I think that the Bill provides them.
I hope that I have been able to reassure my noble friend of my earnest desire to get this matter sorted. I am very pleased to meet with Nickie Aiken or for that matter any other councillors responsible for this area of activity in their local authorities, to try to explain to them how in practice they can use the measures provided for in the Bill to deal with what is a very serious problem.
Baroness Hamwee
My Lords, the Minister has given a very detailed reply as to the measures available, but I am sure that he would agree that none of that reduces the need to deal with trafficking and immigration control, which I think is actually behind quite a lot of what is happening which is so offensive.
Lord Taylor of Holbeach
In some circumstances there is undoubtedly some suggestion that people involved in begging have been brought here as part of criminal gang activity. But that is another crime and there are other measures to deal with it. Meanwhile, local authorities’ concern is to make sure that members of the public, tourists and businesses are not interfered with by beggars in public places.
Lord Flight
My Lords, I thank the Minister for that very detailed response. I am hopeful that what he described will be an effective measure for dealing with this issue. The only area where I still have some uncertainty, and where Westminster and other councils have uncertainties, is the double-stage aspects of both CPNs and the new public spaces protection orders. There is concern that warnings will be given out to people who will disappear and then come back again as soon as the police have gone. But I am grateful that the Minister has accepted the request to meet not just Councillor Aiken but any other of the local authorities concerned, to go through their concerns and thrash out a mechanism that can work. On that basis, I beg leave to withdraw the amendment.
Lord Harris of Haringey
“Local anti-social behaviour strategy
(1) An injunction under section 1 may be granted only if the Police and Crime Commissioner for the area in which the court sits (or the Mayor of London for courts in the Greater London area) has published a local anti-social behaviour strategy “the strategy” for that area.
(2) The strategy shall set out the approach to be followed in respect of anti-social behaviour by—
(a) the chief office of police for the relevant police area;(b) each of the local authorities in that area; and(c) such other bodies as the Police and Crime Commissioner (or the Mayor of London in the Greater London area) shall consider appropriate.(3) The strategy shall only be published following consultation with the persons specified in subsection (2).”
Lord Harris of Haringey
My Lords, I suppose that we should congratulate the Minister on now having dealt with three of the 161 clauses during the course of today. The amendment addresses one of the most extraordinary absences from the Bill, which is that there is no mention, as far as I can see, of the role of police and crime commissioners—or, in London, the Mayor’s Office for Policing and Crime. The noble Earl, Lord Listowel, earlier raised the issue of police and crime commissioners with the interesting suggestion that they might want to fund youth services to address issues of anti-social behaviour by juveniles.
Clearly, the role of police and crime commissioners in terms of addressing issues around anti-social behaviour should be central to the Government’s philosophy. These are the individuals who will be holding the police to account and doing so much to reduce the volume of crime and so on within their areas. So it is surprising that there is no mention of police and crime commissioners in the Bill.
In his reply to one of our earlier debates, the Minister talked about the tough financial climate in which all the agencies involved are operating and the importance of using resources wisely. That is why I put forward the amendment, which provides that there should be a proper, local anti-social behaviour strategy in every police force area. That should outline the approach that should be taken by the police service and local authorities in that area, and by other agencies that might be involved in reducing anti-social behaviour. That is so important because we all recognise that this is not an issue for which there is one magic bullet. There is no magic bullet associated with anti-social behaviour orders or with the new injunctions. There has to be a suite of measures, a series of actions taken at different levels by different organisations, to reduce the level of anti-social behaviour in a community.
Lord Taylor of Holbeach
My Lords, the election of police and crime commissioners put the public back at the heart of our drive to cut crime. I am pleased that the noble Lord, Lord Harris, has recognised how effective police and crime commissioners are.
Lord Taylor of Holbeach
Well, I welcome even modest conversions and am delighted that the noble Lord has proposed this amendment because I have always seen police and crime commissioners as being important.
Under Section 5 of the Act which introduced them, police and crime commissioners are required to issue and publish a police and crime plan, as the noble Lord said. They must do so within the financial year within which they were elected, and they are under a statutory duty to consult their chief constable in drawing up this plan.
The police and crime plan must set out the plans for, among other things, the police and crime objectives and the policing of the area for which the chief constable is responsible. In developing their plans, the police and crime commissioner must consult the public and, in particular, victims. The plan must also be scrutinised by the police and crime panel in each area before it is issued.
The Association of Police and Crime Commissioners has published details on its website about the individual police and crime plans and the key priorities in them. It is no surprise, at least to me—and I do not think that it would be to other noble Lords—that tackling anti-social behaviour is consistently cited as one of the top policing and crime objectives in local force areas. Out of 41 police and crime commissioners, 30 put tackling, preventing and reducing anti-social behaviour among their key priorities in their individual plans. Eight PCCs put reducing the impact of, and keeping people safe from, anti-social behaviour as among their individual priorities, and three further plans clearly set out to encourage the reporting of anti-social behaviour. Therefore, all police and crime plans make reference to anti-social behaviour.
The amendment proposed by the noble Lord, Lord Harris, would create duplication and add bureaucracy. If police and crime commissioners are required to produce individual police and crime plans for their own local areas—which is part and parcel of what they are required to do under the Police Reform and Social Responsibility Act—why should Parliament require them to publish a local anti-social behaviour strategy for their local area in separate legislation? Why should front-line professionals and the courts have to wait to use the injunction under Part 1 as required by this amendment?
This Government are serious about tackling anti-social behaviour and so are elected police and crime commissioners, as evidenced by the figures that I have given. Our anti-social behaviour reforms are about the police and their partner agencies putting the needs of victims first. This means giving the right powers to do this. I have said already that the new injunction is one of the key planks in our reforms. Agencies and the courts must be able to use this as swiftly as possible—I hope that the noble Lord does not see his amendment as a delaying tactic.
I understand the importance of PCCs’ involvement—indeed, some of our reforms provide an active role for them; for example, the community remedy, which is in Part 6 and specifically mentions police and crime commissioners. We will draw their attention through guidance and otherwise to the new powers—I hope that the noble Lord is aware of this—but what will not help anyone in putting victims first is to duplicate and delay using the new powers, which is what this amendment would do. I therefore invite the noble Lord, Lord Harris of Haringey, to withdraw his amendment.
Lord Harris of Haringey
My Lords, this amendment was not about trying to delay the process—I think that the Minister tries to ascribe to me motivations that I do not have. The amendment is about trying to make it work effectively.
I acknowledge that police and crime commissioners are required to draw up and should all have in place a police and crime plan. But it is a police and crime plan, and they draw it up in consultation simply with the chief officer of police for their area. That is the requirement in the legislation.
Lord Taylor of Holbeach
If the noble Lord will forgive me. It has to be presented to the police and crime panel as well.
Lord Harris of Haringey
It has to be presented to the police and crime panel, but the panel has no executive role, as far as that is concerned. It does not have a power to reject or amend it. It is simply there as part of a formal process. I am sure—or at least I am told somewhere—that police and crime panels are doing a good and valuable job in terms of monitoring the activities of police and crime commissioners, but they are not part of the consultative mechanism. They are not there to represent the interests of their local authorities and it is not regarded as their function to be, for example, a series of the crime and disorder leads from the various local authorities in their area.
It is a different function. It is a function about scrutiny, whereas crime and disorder leads in individual local authorities are there in an executive capacity. I do not think that the involvement of police and crime panels solves the issue. If one is to be effective in tackling anti-social behaviour, one needs to work with the local authorities and all the different agencies involved, including the housing providers. That is what this amendment is about.
Lord Greaves
I am trying to match what the noble Lord is talking about to my experience in Lancashire. It is a large, far-flung county from the Fylde coast to the Pennines, from Morecambe and Lancaster south to Skelmersdale and places like that—if there are any places like that. Perhaps the noble Lord can help me. I cannot understand what a new strategy document for the whole county, taking lots of resources in drawing it up, will add to anything in a place like Lancashire. Surely what is required is the allocation of resources and priorities at the county force level—which is Lancashire County Council, plus Blackburn and Blackpool—then local action plans and strategies at perhaps the borough level, tackling the problems on the ground.
Surely the answers, as the noble Lord said, will be different everywhere. The answers in old textile towns in Pendle and Burnley will be very different from Skelmersdale, which is a Liverpool new town suburb, or the rural areas of west Lancashire, or indeed the seaside towns of Blackpool and Morecambe, for example. What is surely needed is a series of local action plans involving the district councils and councillors and the bodies on the ground which are doing the work, as well as the police, not just another county-wide strategy which will get put on shelves and forgotten.
Lord Harris of Haringey
I am sure that the noble Lord, Lord Greaves, will forgive me if I do not join him in his encyclopaedic tour of the townships of Lancashire. In fact, this amendment does not necessarily suggest that there is a single county-wide strategy, because I, like him, would accept that what works in one area would not be appropriate in another. It talks about,
“the area in which the court sits”,
and there will be different courts in different parts of the county. The relevance of this is that each of the local authorities in the area should contribute to the preparation of the plan, because this must be something which is agreed at local level. It is the absence of that agreed joint strategy, working together at local level, which is the omission in this Bill.
This could be a subsidiary part of the police and crime plan, or it could be built from the crime and disorder partnerships which exist at local authority level, but what is missing is any cross-reference to those two different processes. If we are to be serious about anti-social behaviour, if we are to make things happen at local level and have the different agencies operating in concert, working together to try to deal with anti-social behaviour, there needs to be some linkage between the existing planning structures.
While I am quite prepared to accept that this amendment does not necessarily deal with the issue precisely, if the Minister does not bring back proposals on Report, then I might well bring proposals to try to link what is being done in this Bill with both the police and crime plan, which commissioners are asked to draw up, and the local crime and disorder arrangements, which exist between the local senior police officer in an area and the chief executive of each local authority area. On that basis of looking forward to the Minister coming forward with some further suggestions about how to integrate these documents, I beg leave to withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, this is a brief amendment to probe why the Environment Agency and its Welsh equivalent, the Natural Resources Body for Wales, are on the list in Clause 4(1). I will talk about the Environment Agency, which is the one I know most about. Surely the whole question of anti-social behaviour is essentially local while the Environment Agency is a national body, organised regionally. If, within the purpose of the new injunction system, guidance will be given to people to regard injunctions as the last resort and start with local preventive measures such as teams on the ground, working directly with adults and children who are engaging in anti-social behaviour, I do not understand what resources the Environment Agency will have for that work.
If injunctions are to have positive requirements attached to them then, as the noble Baroness, Lady Smith, has been explaining, that will require resources: having people on the ground and systems to support, monitor and manage people. I do not understand what resources the Environment Agency has for that. Bodies such as the Environment Agency may well have a role to play in working with other authorities but I do not understand why it requires the ability to apply for injunctions itself, when it seems that it will not have the ability to manage those injunctions or follow them up.
Baroness Smith of Basildon
I am sorry to intervene on the noble Lord but he referred to the Natural Resources Body for Wales. I wonder whether he has spoken to the Welsh Government, because they have made it clear that they object to this Bill. For any part of the Bill to be enacted in Wales, there would need to be a legislative consent Motion in the Welsh Assembly, which seems very unlikely at this stage.
Lord Greaves
I am sorry, but I did not quite get that. Is the noble Baroness saying that the Welsh Assembly is in favour of this or not?
Baroness Smith of Basildon
No. The Welsh Assembly is not in favour of the Bill and it would need a legislative consent Motion to be passed for it to be in force in Wales.
Lord Greaves
I am very grateful for that additional information, which is entirely different from anything that was within my ken or understanding. That is an interesting point but I only included the Welsh body since it made up the set. However, I would be very interested to hear the Minister’s explanation of why he thinks that the Environment Agency not just needs these powers, since other bodies can work with it and do the work, but why it is capable—why it has the resources and competence—to manage injunctions and the people whom they will be served upon. I beg to move.
Lord Taylor of Holbeach
My Lords, we will come to the Welsh relationship with the Bill later on in our consideration of it, if not with this particular amendment. However, I will speak to my noble friend’s amendment, which would see the Environment Agency and its Welsh equivalent removed from the list of bodies that can apply for the new injunction. As my noble friend may or may not know, the Environment Agency has been able to apply for anti-social behaviour orders since 2006. Alongside Transport for London, this was done by an order under Section 1A of the Crime and Disorder Act 1998. Noble Lords might not be aware of that provision, as it does not appear on the face of that legislation but was done under an order.
The Environment Agency has not used the anti-social behaviour order often but we believe that it should retain access to its replacement so that, as a national body, it can take fast and effective action to tackle serious environmental anti-social behaviour, rather than relying on the police or council. On Report in the House of Commons the list was extended to include the Natural Resources Body for Wales, to give the Environment Agency’s sister body similar access to the injunction. The Natural Resources Body for Wales manages some 6% of Wales’s land area, including many woodland visitor attractions and nature reserves. As such, it should be able to apply for an injunction when someone decides to act anti-socially on that land.
I understand the concerns over too many agencies having access to such an important tool, but I believe that the list included in Clause 4 represents those agencies best placed to protect communities from anti-social behaviour. Both the Environment Agency and the Natural Resources Body for Wales play an important role in ensuring that our environment is welcoming to everybody and they should, I believe, be able to lead court action when that enjoyment is put at risk by anti-social individuals. We will continue to work with bodies such as the Environment Agency to ensure they are prepared for the new power and on that basis I ask my noble friend to withdraw his amendment.
Lord Greaves
My Lords, I still do not understand the logic of having the Environment Agency: why not Network Rail, for example? I can think of a lot of national organisations for which it would be possible to make the same argument. The noble Lord said that the Environment Agency had not used this power very frequently. Will he write to tell me how many times it has used it since it got the power? That would be interesting and helpful.
The specific point I was trying to make is that if injunctions are a weapon of first resort then I can understand why the Environment Agency might want to use it against somebody who does something nasty on a bit of land that it owns, or jumps in a river when they should not. However, I thought that the whole basis of the Bill was that injunctions are not to be a weapon of first resort but a weapon of last resort. I asked what resources the Environment Agency would have to carry out preventive work and management of potential injunctees, if that is what they are called—potential respondents. I did not get an answer. I asked what resources the Environment Agency might have to manage the process of positive requirements. Again, I do not think that there is an answer. I think that the Government are making assertions rather than giving explanations on this.
Lord Taylor of Holbeach
Perhaps I may just explain. The agency currently has the power to issue ASBOs—that exists. If we were to take that power away, as ASBOs disappear, it would have no equivalent power, unless we replace them with a power which we consider to be most appropriate, the IPNA. I hope my noble friend will understand that we ask the Environment Agency, both in this country and in Wales, to do a lot on our behalf to protect the environment. This is a method whereby it can do just that. I would be very surprised if the noble Lord were not in favour of allowing the Environment Agency to have some successor power to its current power to issue ASBOs.
Lord Greaves
My Lords, I understand that very well. I understand that the Environment Agency has those powers, but we are told that it hardly uses them, which is why I am asking how widespread their use is, how many it has actually used since it got this power. That is what the argument is. I hope that I will get that information, but for the time being, I beg leave to withdraw the amendment.
“( ) Before this section comes into force, the Secretary of State shall provide guidance on the length of time that relevant courts will take to reach decisions on whether or not to issue warrants under this section.”
Baroness Smith of Basildon
My Lords, I think I can move this amendment fairly briefly. It concerns applications made for the issue of an arrest warrant for the breach of an IPNA. One of the things that strike us when we look through the clauses is that there is no timescale from the time when the application is made for an arrest warrant to when it would be issued or the application rejected—the Bill is completely silent on that issue. My attention was drawn to this by the report of the Home Affairs Select Committee, when it reported on delays in county courts, saying:
“We heard that this was likely to severely slow down the process for dealing with ASB”,
and the committee said how concerned it was. Local authorities have also expressed concern about delays in the county court system. In Clause 9(2), it seems that most of the applications would be to a county court; the only time it would go to a magistrates’ court would be if it was a youth court that had granted the IPNA. In other cases it would be a county court, and in some cases the High Court. If there were delays in the county court system, that would be a serious blow to the idea of moving swiftly—one of the major reasons that the Minister has given for having IPNAs rather than anti-social behaviour orders—in the introduction of these new injunctions.
There is another point that is not covered by the amendment but is also relevant to this. All the legislation should be subject to post-legislative review after five years. That seems quite a lengthy time on an issue like this where, if there is a problem, it will have to be dealt with much more quickly than waiting five years to see if there is in fact a problem. With issues of anti-social behaviour rising so high in public concern—and indeed in the Government’s concern, given the Bill before us—it would not be reasonable if we passed legislation but were then not able to enact it because of the delays that are currently being seen in the county courts.
The proposal to the Minister is that we look at this issue first and the Government make an assessment of, and issue guidance on, how long it should take for a county court from the moment it gets an application for an arrest warrant for a breach of an IPNA to when that court has to make a decision. If the Government could issue that beforehand, that obviously would speed up justice, which I understand is the purpose of this measure. That fairly briefly sums up and describes why we are putting the amendment forward. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 21C in this group. It is extraordinarily inelegantly drafted, but I hope that the Minister is aware of my concerns that lie behind it. Where a respondent has certain requirements imposed on him as part of the IPNA and these have rehabilitative or therapeutic aspects—indeed, in many cases one would hope that they did—the further proceedings should not be taken in such a way as to prejudice the benefit of those requirements. My straightforward question—I was going to say “simple” question, but it might not be quite that simple—is to ask for some assurance from the Minister that will help to allay that concern.
Lord Taylor of Holbeach
Amendment 21B, tabled by the noble Baroness, Lady Smith, would require the courts to take into account whether or not to grant applications for arrest warrants in cases where an arrest warrant was not attached to prohibitions in the injunction at the time of its issue but was sought subsequently, when the breach had occurred.
We are not introducing a new and untested power under Clause 9. The courts are used to handling applications for arrest warrants: for anti-social behaviour injunctions on which the IPNA is modelled and gang injunctions, as well as other injunctions. We should therefore bear in mind that the courts are already experienced in handling applications for arrest warrants and dealing with breach proceedings and they are experienced in doing so without needless delay or copious guidance. So while I agree with the point made by the noble Baroness, Lady Smith, on the importance of swift action—indeed that is one of the reasons we are reforming the anti-social behaviour powers—I am not persuaded that statutory guidance is needed on this point.
My noble friend Lady Hamwee has also tabled an amendment to the provisions on powers of arrest. The purpose of Amendment 21C is to prevent an arrest warrant being issued against someone who breaches a requirement in their injunction. They would only be able to be brought before the court to answer the breach of a prohibition in the order. With respect to my noble friend, I do not agree with that. Whether a term in an injunction is a prohibition or a requirement, they form part of an order of the court. They must be complied with. The requirement to do something about the cause of your anti-social behaviour is as important as the prohibition to stop it. The courts must have the power to enforce them both. If a person is not forced to do something about their behaviour by complying with a positive requirement, it is likely that they will eventually breach the order and cause further problems. That has been the problem with anti-social behaviour orders.
As my noble friend points out, this is different from the approach we have taken in Clause 3. At the time an injunction is made, a power of arrest can only be attached to a prohibition and not to a positive requirement. The reason for this distinction is that the test under Clause 3 is, rightly, a high one. A power of arrest can only be attached where there is a threat of violence or harm. It is difficult to see how this test could be met by breaching a positive requirement. However, the provisions in Clause 9 for obtaining an arrest warrant do not include such a high test because here the focus is on enforcing the injunction, not on preventing an immediate risk of violence or harm.
On the basis of this explanation, I hope that the noble Baroness, Lady Smith, will be content to withdraw her amendment.
Lord Beecham (Lab)
My Lords, the Minister has not addressed the thrust of my noble friend’s amendment, in terms of the potential for delay. This is an area where, by definition, the quicker one proceeds to a resolution of the matter, the better. There are some constraints in the way the court system currently works which make that rather more difficult. A number of proposed court closures have affected both county courts and magistrates’ courts. I assume that these breaches would be basically dealt with in the county courts, but there have been closures there as well. Do the Government have any indication of how long it will take to secure these injunctions, in the light of that development and the general pressure on the court system?
It is not necessarily the case that a matter can be easily resolved at a first hearing. There is also the question of the operation of legal aid under the rather restricted system we now have. One assumes, and perhaps the Minister can confirm this, that legal aid would be available for those who qualify, on financial grounds, to defend an application for an injunction. There seems to be a potential for an undesirable delay, which may or may not be necessary. The thrust of my noble friend’s amendment is that the Government should endeavour to begin properly and assess the likely timescales and the likelihood of delays and then to give guidance to ensure that, where necessary, the relevant resources can be made available. Could the noble Lord deal with those issues?
Lord Taylor of Holbeach
My Lords, the noble Lord has asked me a number of detailed questions. If he does not mind, I will look at the record and write to him, as I do not have the briefing here to be able to reply in detail to all that he wishes to know.
Baroness Smith of Basildon
I am grateful to the noble Lord. He did not fully address a couple of questions in the points that I made. One of the issues was about delays in county courts. I did not say that county courts were facing delays—that came from local government, the police and the Home Affairs Select Committee in the other place. The other point I raised was that, if he is not prepared to consider guidance prior to this being introduced to ensure that county courts are able to deal with these matters in a timely way, will he agree to consider and bring back to your Lordships’ House at Report a statement on whether, rather than having guidance beforehand, it is possible to truncate the normal five-year review period to see whether it is working? This issue should be reviewed after one year to see whether there are delays in the county court system which slow down the process of justice, or whether, as the Minister said, everything is working fine and there is no problem.
The delays at the moment are occurring for a number of reasons—they are under pressure to reduce staffing in county courts, and my noble friend Lord Beecham also raised some of the issues. I also understand that there are more litigants in person because of the reduction of eligibility for civil legal aid. Both those issues add to the delays in the system. We do not need to have a process whereby people suffer anti-social behaviour when someone has breached their IPNA and then there is a lengthy delay while they wait for the courts to assess whether an arrest warrant can be issued. Therefore, if the Minister rejects out of hand the issue of guidance beforehand, will he agree to look at truncating the review period and review how it is working after a year rather than five years?
Lord Taylor of Holbeach
I will take a look at the record and if I feel that it will be productive and I can add to the position they have stated I will write to the noble Lord, Lord Beecham, and the noble Baroness. I cannot commit to a particular timeframe, but if there is evidence of a problem to which the noble Baroness is able to draw my attention, I will deal with it.
Lord Beecham
It occurs to me to ask the noble Lord whether there have been any consultations with the judiciary about this aspect. I assume that that may have been the case. Presumably the judiciary will have a view on the imposition of a new burden on it. We talked about the new burdens doctrine earlier this evening as regards the costs of some of the proposals in the Bill on local government and whether they will be met. From a local government perspective I cannot say that I was very thrilled with the Minister’s response to that; he seemed rather to ignore it. However, this is a different sort of new burden—one placed on the courts system. That being the case, one would have imagined that this would have been discussed with the judiciary at some level. Has the noble Lord any knowledge of such discussions taking place, or were any representations made as a result of consultations on the Bill?
Lord Taylor of Holbeach
I was anxious to move on, as noble Lords may have guessed, but I think that the sentiment of the House is that the night is perhaps getting on—although I was just getting into my stride. I have found answering these amendments somewhat more difficult than others as they stray into a legal capacity where my skill base is probably not as substantial as that of the noble Lord, Lord Beecham. None the less, I have said that I will look at the record and write to noble Lords on the basis of the points they have made when I am able to give them a fuller and more reasonable answer to the points they raised. No doubt we will have plenty of opportunity to deal with that in future. In the mean time, I ask the noble Baroness to withdraw her amendment.
Lord Beecham
The noble Lord has just reminded me that I really ought to have declared an interest. I am still a solicitor, not so much practising but an unpaid consultant in the firm for which I used to act. I am only sorry that a particular noble Baroness is not in the Chamber because I used to appear before her father in the county court when he was sitting as a district registrar—an experience not to be recommended, I have to say, to those who followed me.
Baroness Smith of Basildon
My Lords, I beg leave to withdraw. I understand the noble Lord is going to write to me about the issue we raised.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
The question is that Schedule 2 be the second schedule to the Bill.
Baroness Hamwee
My Lords, I propose to speak to this; I realise that a number of people in the Chamber will be aware of that, but not the Chairman. I do not know whether the Committee would wish me to do that now or to save my fire-power. I am just aware of interest in the time, and the very creative way in which the time that I think we had agreed to finish had been reached.
The Deputy Chairman of Committees
I put it that Schedule 2 be the second schedule to the Bill, but I did not take the voices on that, so the noble Baroness is entitled to speak on this if she wishes.
Baroness Hamwee
In that case, my Lords, I apologise to the House but I do want to raise at this point whether Schedule 2 should stand part of the Bill. The Minister is aware of the particular concern that I have, which is that the schedule provides for sanctions in the event of a breach of the injunction. My concern is about the sanction applicable to children—the sanction of imprisonment. Children who breach an IPNA can be given a supervision order or, if they are over 14, up to three months’ detention. I do not think that the Minister will be surprised at concern as to whether such a sanction is proportionate, productive and compatible with children’s rights, for reasons of which the Committee will be very well aware.
Detention of any length in the case of children is something that many noble Lords are concerned about—whether it is not only not effective but also particularly harmful for children. I am not aware of evidence that imprisonment for breaching an ASBO acts as a deterrent for children committing anti-social behaviour. We are all aware of the potential harm for children’s development and the impact on their rehabilitation. We all know stories about fast-tracking children into the criminal justice system by dealing with them inappropriately at a very early stage in what may or may not—one hopes not—turn out to be a criminal career. Only the most serious crimes committed by children lead to custodial sentences. The IPNA is, of course, a civil measure, and detention is a very disproportionate sanction for a breach when the child has not actually committed a criminal offence. In brief—and I have kept it brief—I would be grateful if the Minister could tell the Committee how detention for children can be justified in this way.
Lord Taylor of Holbeach
My Lords, I hope that the Committee will forgive me if I rattle through my notes here, as I am aware of the lateness of the hour. I am grateful that my noble friend Lady Hamwee has raised this issue; it is an important point about the justification of detaining under-18 year-olds if they have breached the terms of an injunction in Part 1.
It is important to remember that, although the test for an injunction is the civil standard of proof, in the event of the breach of the test what applies will be the criminal standard of proof—beyond reasonable doubt. The court must also consider whether the young person has a reasonable excuse for breaching the injunction. Only a young person over the age of 14 can be detained and for not more than three months. Currently, under the anti-social behaviour regime, a young person can be detained for up to two years. It is also important to say that detention can be used only as a very last resort,
“where the court determines that because of the severity or extent of the breach no other power available to it is appropriate”.
Secondly, when the breach is established, it will be a civil contempt of court. This means that a young person will not be saddled with a criminal record, unlike with the breach of the anti-social behaviour order. We have also said in draft guidance that informal approaches should be used in most cases involving young people. When agencies believe that a more formal intervention is necessary, the courts must have the power to deal with young people who have not responded to the informal approaches or who wilfully ignore the terms of their injunction.
I hope that I have made it clear to my noble friend that these powers are used extremely sparingly. They are certainly not a power of first resort—they are of last resort only.
Baroness Hamwee
My Lords, I have already made clear this afternoon my concern about reliance on guidance. I wonder whether, if this sanction is so rare, a child would find himself faced with it, and there is no other basis on which to consider detention—that is, if you believe that detention, even used sparingly, is a correct approach. I expect to come back to the matter, and apologise to the Committee that, in the rush to get amendments tabled with the change of timing of this Committee stage, I missed this last week.