Grand Committee
(10 years, 11 months ago)
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Children and Families Bill
(10 years, 11 months ago)
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The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, this is the resumed Grand Committee on the Children and Families Bill. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells ring and resume after 10 minutes. The Lord Chairman’s watch is the final arbiter. I understand that the Committee is currently debating Amendment 263, which has already been moved.
Baroness Young of Old Scone (Non-Afl)
My Lords, I hope I am not the only person who is going to speak at this point. I would find it really awesome to be the only one who caused this rather rare event of an amendment being carried over between two sessions of business.
I support Amendments 264, 265 and 266 on standardised packaging. I do not want to make too many of the points that have already been made—at breakneck speed, may I say; it showed that we can speed up if we put our minds to it—but will bring in a few others. There really is quite a consensus stacking up that there is a pressing case for standardised packaging.
The World Health Organisation says that standardised packaging would produce,
“the maximum reduction in the marketing effect of tobacco packaging”.
Australia has adopted it, as everybody knows, and the early evidence is that the standardised packs there are making smoking less appealing and have not caused any problems for retailers, which was one of the predictions. Scotland and Ireland have committed to it in principle, and I have it on very good authority that the Health Minister in Wales is convinced of the evidence. New Zealand, Canada, France, Norway and India are all considering this way forward.
We have huge support here from the medical colleges, including the Royal College of Paediatrics and Child Health, from the BMA, and from charities such as my own charity, Diabetes UK—I declare an interest as chief executive—as well as Cancer Research UK and the British Heart Foundation. They all believe that there is an increasing body of hard evidence. Of course, the public support standardised packs, with 64% polling in favour.
Standardised packs are really important because packaging is the last advertising route left to manufacturers and tobacco companies are spending a huge amount on pack design, and they do not do that for no reason. They recognise the truism that kids and young people are attached to brands. If you have ever tried to persuade your child to buy a pair of supermarket trainers you will know exactly how attached to brands they are.
When I was a kid and all my friends were starting to smoke, there was a league table of cachet. I am really old so Navy Cut was considered a bit more gentlemanly than Wills Woodbines. Embassy and Regal were the great working man’s fags and of course Silk Cut was for the ladies. Then the 1980s came and people took up Camels or Gauloises or, the height of cool, Lucky Strike. I was terribly tempted, I must say, by Balkan Sobranie, which were wonderfully coloured little cigarettes with gold filters. I had a friend, Brian, who smoked them and I used to sit there with one unlit, toying with this beautiful, chic sophistication while he puffed away. Alas, he died at 51 of lung cancer.
Helena Rubinstein used to say:
“In the factory we make cosmetics but in the store we sell hope”.
But of course we are not talking about selling hope; we are talking about selling addiction, cancer, heart disease, poor quality of life and early death for our children and young people.
Noble Lords have already shown that more than 200,000 kids aged between 11 and 15 start smoking each year. We really should take the step. Why do the Government continue to delay? I am sure the Minister will tell us. If they are waiting for the emerging impact of the Australian policy, they should not. The conclusive evidence could take two or three more years with another 500,000 kids addicted to a killer habit. We know that HMRC believes that there is no evidence that standardised packaging would increase the illicit trade that is one of the concerns, so there is no case for waiting for the Australian evidence. Why does the Minister believe there is a case for further delay? Will he please simply give in and get the Government to support Amendments 264, 265 and 266? I particularly commend Amendments 265 and 266, which strengthen the amendment further.
Baroness Thornton (Lab)
My Lords, the noble Earl and I have been discussing the regulation of tobacco products since 2008. At that time he was often sceptical about the efficacy of our proposals for the retail marketing of tobacco products. I particularly welcome these amendments because it is important that we keep this issue alive. Since 2010, my noble friend Lord Hunt and I, as well as others, have asked a series of questions about the enactment of the legislation concerning the display of tobacco products. I congratulate the noble Earl on making that happen successfully. It has been a success: it is now normal to walk into your corner shop and not see tobacco products side by side with comics and chocolates, which used to normalise tobacco for our young people.
It is important to be clear in what we are talking about. There are all the statistics in the world that people can talk about in terms of cancer, addiction and all those other things. However, we are talking about whether we are prepared to allow the over-powerful and wealthy tobacco companies to gain their next market for the profits they need to make from tobacco products. That is what this amendment is about. They can exist only if they continue to recruit young people to tobacco addiction so that they have their next generation of smokers, and that is what this is about. It is about reducing the number of young people who, by becoming addicted to tobacco and tobacco products, provide tobacco companies with their next generation of smokers. We know how hard it is to stop smoking once you have started, and I speak as an ex-smoker.
I hope that, over the years when the noble Earl has distinguished himself as the Minister in his job at the Department of Health, he has had access to all the information and research, and now has at his disposal all the facts about tobacco addiction and all the terrible diseases that this brings to everybody, so that he will be convinced that we need to take this forward. I hope he will tell the Committee either that the Government will support these amendments, or that they are not necessary because the Government intend to take plain packaging forward as quickly as possible.
Lord Judd (Lab)
My Lords, my noble friend just referred to how difficult it is to break the habit once you have formed it. I was a smoker in my youth. I progressed to a pipe, and on one occasion I was in some gathering with fellow young people when the bowl of my pipe dropped off into a pint of beer. I realised that this was a message from God and that one or other had to stop. I had little difficulty in choosing beer with which to continue. We all have these experiences. I am sure I am not alone in remembering with some guilt that, having joined the smoking culture—certainly the presentation of tobacco and cigarettes was an important part of the wooing of a person into the habit—I used to take tremendous pride in choosing the right cigarettes for my father on his birthday or at Christmas. That was very important, because he was a smoker and I was able to present him with a well wrapped packet of what he would like. Later in life, he suffered a severe stroke which left him speechless for the rest of his life, and I have always had an element of guilt about the fact that I no doubt contributed to that development in his health.
I do not understand why we prevaricate on these issues, as we are talking about a killer. Let us get this absolutely straight: it is a killer. We have no hesitation in saying that we must have rules about seat belts in cars because children get killed in accidents. We have special rules about children in cars because of how vulnerable they are. Why, if we take this seriously for seat belts and the rest, do we not take it equally seriously for tobacco?
My final point is that, as a society, we are agonising over the difficulties faced by our health service as it tries to grapple with the pressures on it. By enabling and encouraging young people to become part of the smoking community—by allowing them to drift into it or, indeed, by encouraging the deterioration in their health because of our failure to take rigorous action—we are deliberately adding to the problems of the health service. It seems to me that this is not only wrong but irresponsible. On the one hand to be grieving and agonising about the problems of the health service and the shortage of funds, and on the other hand to be aggravating it by our failure to act where we could act, seems to me irrational behaviour.
I commend noble Lords who have tabled these amendments, which certainly deserve support. I believe we shall be looked at very critically indeed in history for having prevaricated and pussyfooted for so long on such a crucial issue.
Lord Wigley (PC)
My Lords, I was going to make rather a longer speech the other night, but when I listened to the noble Baroness, Lady Finlay, present Amendment 263, most of the points in my speech were covered. However, I add my voice in support of what she said and of the other amendments before us today.
When I was 15, I remember being called home from school, as my father had had a very severe heart attack. He smoked between 40 and 60 cigarettes a day. I was there when the doctor told him, “You know what has caused this: it is your smoking”. I avoided smoking as a result—it brought the message home to me. When I used to travel in the car with him, invariably the little side window on the driver’s side would be slightly open, and most of the smoke would come back to me. We have legislation that protects people who have to work in vehicles from exposure to smoke—my goodness, we should be protecting children in a similar situation.
People say, “What next? You’ll be saying that people cannot smoke in their own homes”. The difference is that, in their own homes, children can go to another room—up to their bedroom or wherever—but when they are travelling in a car they cannot do anything like that. I very much hope that the Committee, and in due course, on Report, the House, will take on board an amendment along the lines of that moved by the noble Baroness, Lady Finlay. There is certainly widespread support on the Cross Benches for these amendments. If the Government do not move something themselves, I suspect the House will move on their behalf and that this will go forward into legislation.
Lord Palmer (CB)
My Lords, I fear that I may well be a lone voice in not supporting this amendment, even though I think smoking is a revolting habit and that everything must be done to encourage young people to refrain from it. There has been a lot of research into this, and a far more effective way to reduce youth smoking would be to ban the proxy purchasing of all tobacco products for under-18s, as is the case currently for alcohol.
I declare an interest as chairman of the Lords and Commons Cigar and Pipe Smokers’ Club and am, for my sins, a shareholder in BAT.
It must not be forgotten, particularly following the points made by the noble Baroness, Lady Young, and the noble Lord, Lord Judd, how much revenue is raised by the sale of legal tobacco products and, more importantly, how much income the Treasury is deprived of through illicit imports. I have a nasty feeling that if this amendment is agreed to, or voted on on Report, it will only compound that terrible figure.
The Lord Bishop of Chester
My Lords, I will speak very briefly. Over the years I have been attracted by most vices, but never to smoking, so in the circumstances it is easy to speak against it. I will add that it is not just a domestic issue. The noble Lord says that he has an interest in BAT. What astonishes me is the way in which the growing awareness in this country of the dangers of smoking seems to be so slowly taken up in the developing world. We have a moral need, not only in relation to our own children but to the developing world, to make clear the dangers of smoking. It really is a global issue. It behoves particularly the wealthier countries—not least if the interests of big business are engaged, as undoubtedly they are, or those of the Exchequer—to give a proper lead. I think these amendments do just that.
Baroness Howarth of Breckland (CB)
My Lords, I want to speak briefly because the health arguments have mainly been made. I want to make two rather different points. I support both of these amendments. I have a long-standing reputation for campaigning in this area. I find it interesting that the industry has suggested, from time to time, that packaging makes no difference. If it makes no difference, why is it so important? Let us get on and take it off the shelves. We have all the evidence to show that children are attracted to packaging and we all know our own instincts. I have never smoked, but both my parents died from smoking related diseases. My mother was addicted and said that I should stop anyone else I could from smoking.
My other point is on the smoking in cars amendment. Having said that the medical arguments are substantially made, which the Minister knows whatever the position he has to take on this, there is also a clear safety issue about smoking with children in cars. Anyone who has driven with two arguing children strapped in the back of their car—because children argue in the backs of cars, and if yours do not, then they are remarkable—will know how distracting it is and how you have to absolutely keep your concentration up. So I have always found it strange that we do not stop people being distracted by fiddling into a bag or a pocket for a packet of cigarettes, finding something to light up with and taking their eye off the road—we have all seen it—while they light a cigarette. They then have a cigarette in one hand while they are driving their children in their cars. This is an added reason for ensuring that people cannot smoke with children in cars. You might say that where there are two people one of them may smoke, but there is the medical reason and this additional safety reason. I have no idea whether there are any statistics on accidents because people have been smoking in cars, but when you think of the legislation we have to stop people using mobiles, which in some ways are much more automatic, I cannot understand why we do not have similar legislation to protect children, not only for the medical issues in relation to their health but also for sheer practical safety reasons.
Lord Storey (LD)
I will speak to Amendments 263 and 264. If you said to some parents that you were going to put their son or daughter or both in a tin box, cut some holes in the box, then fill it with smoke, put it on wheels and drive it around all the time, they would think you were absolutely mad. The tin box is almost like a coffin because you are killing children. You are literally killing children.
My parents were heavy smokers; they smoked 40 Senior Service every day. In fact, they smoked so much that our living room ceiling turned yellow once a year and had to be repainted. I always remember that when my father drove me through the Mersey Tunnel he would say, “We’ll have to put the window up because you can die from carbon monoxide poisoning, you know”, yet—perhaps this is why I get chest infections regularly—he was putting our family in that sort of situation. Of course, he did not know about the effects.
All of us look back at things in our lives that we are really proud of. The thing that I am most proud of in politics was that we introduced Smokefree Liverpool. Thanks to support from noble Lords of all groupings, we were able to influence, in a small part, government thinking. You often get people saying, “Oh, it’s the nanny state. We don’t want a nanny state. We don’t want people telling us what to do. If we ban smoking in cars, the next thing will be that we ban it in the house as well”. Well, nannies are there to protect and look after children, and a nanny state should be there to look after and protect children.
Children are particularly vulnerable to second-hand smoking as they breathe more rapidly and inhale more pollutants than adults. ASH has shown that parental smoking is a causal factor of asthma in children, and that the prevalence of asthma increases when the number of smokers in a car or in the home increases. Children exposed to second-hand smoking also have an increased risk of lower respiratory infections, bronchitis, middle ear disease, bacterial meningitis and sudden infant death syndrome. There is also a very social issue, one that is directly related to making our society fairer. Evidence has shown that children living in the poorest households have the greatest levels of exposure to smoking and that passive smoking has been shown to affect children’s mental development and school absenteeism. That clearly undermines our efforts to increase social mobility. Experts have suggested that banning smoking in cars while driving with children is an important step in limiting the effect of second-hand smoking.
For those more interested in the economic side, the numbers are staggering. The health disorders caused by smoke-generated disorders cost the NHS about £23.3 million a year. In particular, £4 million is spent on asthma drugs for children up to the age of 16. The future treatment costs for smokers who take up smoking as a consequence of smoking by a parent could be as high as £5.7 million each year. Parents need to consider that, in choosing to smoke, they will find it difficult to explain to the children why they in turn should not smoke. The NHS has shown that children who grow up with a parent or family member who smokes are three times as likely to start smoking themselves. As we can see, the issue has implications for public health and our society in general, and ignoring it would mean ignoring the poll in 2009 which found that a majority of adults in England were in favour of banning smoking in cars, with 74% opposed to smoking in cars with children. The message is clear: if we really care about our children and want to improve their health and social mobility, this is a step that we can take.
I can look back, as no doubt all of us can, at moments in our social policies where there has been resistance from some quarters, whether it be from government or a powerful lobby, but the will of people has always come out. Noble Lords may remember the row about seatbelts: “Ooh, you can’t have the nanny state making people wear seatbelts”. In the end we had the courage to fight for that, and we cut the number of deaths in traffic accidents considerably. There was even a fuss about making people riding motorbikes wear crash helmets; there was a feeling that, “We shouldn’t do that. The nanny state is interfering by telling people that they must wear a helmet”. It is quite right that they should wear helmets. More recently, we have had the issue of smoking in public places. As a Government, we have a duty and a responsibility to do this.
Governments of all political persuasions have to think very carefully and be led by evidence, not by emotion or lobbying. I understand that the issue of plain packaging for tobacco products is something that the Government were committed to but they wanted to see quite clearly that the policy that was agreed, particularly in Australia, brought results. It is now clear that that policy is having an impact, and I hope that the Government, having initially said, “Let us wait and see”, might now say, “Come on, this is an opportunity to move forward”. I look forward to the Minister responding to the pressure from your Lordships here.
On children in cars, I would prefer that we agree the amendment in its entirety, but if we cannot do that, we could think about taking the first step by having public information, as we used to do. We could provide adverts and publicity material so that parents could see what needs to be done. But if we really want to be progressive and move forward, we should support these amendments.
Baroness Tyler of Enfield (LD)
My Lords, I rise extremely briefly because I had my go on Monday. I want to add just one point to what my noble friend Lord Storey has said. Some people are saying, “Let’s start with an awareness-raising campaign. Let’s see what we can do there. We don’t need to go straight to legislation”. I do not agree with that. The most effective example that I can cite was the introduction of legislation for the wearing of seatbelts. Awareness-raising had been tried, but it achieved only 25% compliance rates, but soon after the legislation was introduced, alongside the awareness-raising effort—you need both; it is not one or the other—91% of adults started to wear seatbelts. As my noble friend said, it is clear that it has saved lives. I think that very few people in this country, and certainly the polls show it, now think that that is an infringement of civil liberties.
Lord Hunt of Kings Heath (Lab)
My Lords, I should perhaps declare an interest as chairman of an NHS foundation trust, as a consultant trainer to Cumberlege Connections and as president of GS1. I welcome this debate. I am delighted to see Amendments 263 and 264, and I have put my name, alongside that of my noble friend Lady Hughes, to Amendments 265 and 266, which are essentially amendments to Amendment 264.
As my noble friend Lady Hughes said on Monday, ever since the advertising ban came in, cigarette packaging has been the way in which tobacco companies have sought to market their products. That is why they spend millions on developing their packaging by testing its attractiveness to potential new customers, and that is why standardised packaging is such an important issue. Amendments 265 and 266 build on the excellent Amendment 264. Essentially, we seek to strengthen that amendment by requiring the Secretary of State to make regulations rather than by simply giving him the discretion to do so. It is important that Ministers are left in no doubt that they need to introduce standardised packaging, which is why I hope that those noble Lords who have proposed Amendment 264 and spoken so eloquently to it will accept our amendments to strengthen the provision. What has happened over the past two years or so would suggest that it is better not to give Ministers discretion in this area.
When the noble Earl comes to wind up, it would be helpful if he could explain the Government’s change of view on this matter. He will know that the former health Secretary, Andrew Lansley, said:
“The evidence is clear that packaging helps to recruit smokers, so it makes sense to consider having less attractive packaging”.
It was widely reported in March this year that legislation to enforce plain packaging for cigarettes would be included in the Queen’s Speech. In April, the then public health Minister, Anna Soubry, said that, having seen the evidence, she had been personally persuaded of the case for standardised plain packaging for cigarettes, but in July we heard the announcement that this was going to be postponed because we would wait and see what happened in Australia.
Will the Minister explain to us why the Government changed their mind and does he agree that the systematic review of all the evidence on standardised packaging commissioned by his department and published alongside the Government’s original consultation showed clearly the strong evidence that standardised packaging would help to reduce smoking rates by reducing the attractiveness and appeal of tobacco products and increasing the noticeability and effectiveness of health warnings and messages? Will he also acknowledge that two internal Philip Morris International corporate affairs documents from February and March 2012 showed that the top lobbying message for the world’s largest tobacco company was to use the strapline, “Wait and see what happens in Australia”? Why have the Government fallen for that attempt? Why on earth should we wait to see what happens in Australia? Cricket aside, I have great fondness for Australia and Australians, but why on earth are we waiting to see what happens there?
We have always been a world leader in this area with actions such as introducing smoking bans in pubs and enclosed spaces, ending tobacco companies’ sports sponsorship and billboard advertising, raising the legal age for purchasing cigarettes and the introduction of graphic warnings on cigarette packs. We have been a leader and our actions have had an impact. We have seen a dramatic reduction in the number of young smokers. Why on earth do we not want to continue in that vein? The Government will be in no doubt about the strength of feeling in your Lordships’ House and I have no doubt whatever that it wishes to see action taken on this issue. I hope that the noble Earl will be able to give us some comfort that the Government recognise that we should get on with tackling this issue.
Baroness Howe of Idlicote (CB)
My Lords, we have heard time and time again both here and in the other place of the clear benefits that plain packaging on cigarette packs would bring to children’s future prospects. Indeed, we have already had clear evidence from other countries of the benefits of taking this measure, as we have just heard, and I need not repeat it. We have also been told of the serious and life-limiting impact that passive smoking in cars can have on young people’s lives. Children often do not know the true risks of passive smoking in vehicles until they have already been exposed to it and certainly cannot be expected to make informed decisions about smoking, particularly not those from the most vulnerable backgrounds. For many the very real risks are not understood until, crucially, they are already addicted.
The knowledge that more than 200,000 children in the UK started to smoke in 2011 should alone be quite enough to urge us to take this preventive action. Awareness campaigns and sharing information are crucial measures, and will continue to be so, but we can see that they are clearly not enough. Surely, we have a responsibility to protect children from something which we already know is devastating. Therefore, I strongly support this group of amendments.
Lord McColl of Dulwich (Con)
My Lords, I, too, support these amendments, and my name is attached to Amendment 264. I should declare that I have a history as regards smoking as I used to be a chain smoker but gave it up when I was six. About 15 years ago in your Lordships’ House I introduced an amendment to ban smoking in public places. I put it on the back of a criminal justice Bill, which is a convenient way of moving things. I was amazed that the House was full right up to midnight when my amendment was discussed. I fondly imagined that everyone had come to listen to my wisdom, but little did I know that the House had filled with smoking barons waiting to pounce. However, I got my own back on them because at the end of the debate I thanked everyone for their contributions and, instead of saying, “I beg leave to withdraw my amendment”, for some reason or other I said, “Amendment not moved”. They all looked very puzzled because we had just spent hours discussing it. However, the noble Baroness on the Woolsack quickly said, “Amendment not moved”, passed on and they lost the opportunity to vote. They were furious and I was very pleased. As a professor of surgery, of course, I fully back any move to reduce the amount of smoking and I am convinced that these amendments would do that.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this has been an instructive debate and let me say immediately that I have listened carefully to all the contributions, both today and on Monday. Perhaps I may start by addressing Amendment 263. I should say at the outset that I have enormous sympathy with the aim of this amendment, which is to protect children’s health from the harm that can be caused by second-hand smoke, and I am grateful to the noble Baronesses, Lady Finlay and Lady Massey, and the noble Lord, Lord Faulkner, along with my noble friend Lady Tyler for bringing this important issue to our attention.
We all agree that we do not want to see children exposed to second-hand smoke anywhere. The evidence of the harm caused by second-hand smoke is clear, but many children continue to be exposed to it, both in the family car and in the home. The question posed by this debate is whether legislation is the most proportionate and viable means of addressing the problem. We need to consider that question carefully and I must say that, while supporting the spirit of the amendment—which I certainly do—the Government are not convinced that creating new criminal offences is the right approach.
Of course, in some people’s minds there are civil liberties considerations, which might include what is often perceived as state intrusion into people’s private space. That is a complex area worthy of a debate on its own, but of course I acknowledge that any arguments on that score need to be balanced against the need to protect children. Since 2007, evidence shows that smoke-free legislation has been effective in reducing exposure to second-hand smoke in virtually all enclosed work and public spaces, public transport and work vehicles. Compliance with the law is high and we now benefit from clean air at work, in pubs and restaurants, and on public transport. However, it does not automatically follow from that that it is right to extend the scope of legislation to cover private cars.
There are many practical issues to be considered, particularly around effective enforcement, which is not something that we have heard much about during the course of the debate. Smoke-free legislation in England is enforced by local authority environmental health officers. They do not hold powers to stop vehicles or to detain people in vehicles that are already stationary. Consequently, it would be very difficult for them to take effective enforcement action without the assistance of the police. Since this is a public health issue rather than one of road safety, I expect that such an additional duty on top of their many other responsibilities would be a cause for concern for the police. The Chartered Institute of Environmental Health has identified other practical difficulties around enforcement. These include accurately identifying which vehicles are required to be smoke-free. For example, small children may not easily be visible from outside the vehicle. Further difficulties include obtaining evidence of smoking, identifying the driver and passengers, and proving the age of the child.
I hope that the Committee agrees that there would be real practical difficulties in effectively enforcing such an offence. If we cannot credibly enforce the law, then the credibility of the law itself is called into question. That is why the Government firmly believe that, rather than focus on what would be a complicated and resource-intensive enforcement process, we should continue the non-legislative approach that the evidence shows is working; namely, encouraging positive and lasting behaviour change among adults who place children’s health at risk. My noble friend Lord Storey urged us to do this. Our comprehensive tobacco control plan states:
“Rather than extending smokefree legislation, we want people to recognise the risks of secondhand smoke and decide voluntarily to make their homes and family cars smokefree”.
That is why Public Health England, building on last year’s success, ran another hard-hitting marketing campaign in June and July this year. The campaign aimed to encourage smokers to stop and think before smoking in front of children, whether in the home or in the car. It also encouraged smokers to order an NHS smokefree kit with tips on making the home and car entirely smoke-free spaces, together with support to help quit smoking altogether.
This year’s campaign is currently being evaluated, but emerging findings are encouraging. They show that the campaign has been successful in raising awareness and in changing attitudes and behaviour, with almost three-quarters of those surveyed agreeing that smoking out of an open door or window was not enough to protect children from second-hand smoke. Of those surveyed, 37% reported that they had taken action to reduce their children’s exposure to second-hand smoke, compared with 29% in 2012. In addition, 73% agreed that the adverts made them realise that smoking out of an open window was not enough to protect children, and there were nearly 85,000 orders for smokefree kits. That is an increase of 48% on the 2012 campaign.
The right reverend Prelate the Bishop of Chester rightly suggested that this is a global issue. I agree. We are, however, considered to be a leader in tobacco control internationally. The World Health Organisation has assessed us to be number one in Europe in this area, and through the Framework Convention on Tobacco Control we share this good practice as much as we can.
The noble Lord, Lord Palmer, suggested that the Government ought to introduce an offence of proxy purchasing. I know that shopkeepers and others are interested in making it an offence to buy tobacco for young people under the age of 18. I am sympathetic to that concern, but even were such an offence to be introduced, it would not stop family and friends sharing cigarettes with children. Therefore, we get back to the argument about behaviour change, which I think is more relevant here.
The noble Baroness, Lady Howarth, made an interesting point about this being considered as a road safety issue. I agree that any activity such as smoking—getting out a cigarette, lighting it, disposing of hot ash or stubbing the cigarette out—is likely to distract the driver, particularly if carried out in a moment that is critical for road safety. However, there are a host of things drivers do that have the potential to be equally distracting, be it eating, drinking, adjusting the radio, consulting directions or whatever it may be. First and foremost, it is the driver’s responsibility to drive safely at all times. Section 41D of the Road Traffic Act 1988 already provides a perfectly adequate offence if a driver fails to maintain proper control of a vehicle while driving. While a specific offence has been created for driving while using a hand-held mobile phone, the Government do not believe that there is any need to introduce a new and separate offence of smoking while driving.
I welcome the debate on this important issue and I can assure noble Lords that we shall consider carefully the findings of this year’s marketing campaign and decide what further action may be needed. I can assure the Committee that the Government will continue to work to protect children from second-hand smoke in family cars and in the home. We are not complacent but we remain to be convinced that legislation is the most effective and proportionate way of achieving this.
Baroness Young of Old Scone
My understanding of this is that, because the Government would not come forward with a more general provision, this amendment has been hitched on to the Bill in desperation because it seemed to be a sensible place to try to get it into. The convolutions that the Minister is rightly pointing out would be solved at a stroke if there were to be a ban on differentiated packaging across the board and standardised packaging were introduced for all cigarettes.
Earl Howe
That indeed is my understanding. Noble Lords have taken the opportunity of this Bill to raise the dangers of smoking, particularly of passive smoking for children, and I have no issue with that. I merely point out that there are problems with the amendment as drafted. I am not saying that it would not be possible to draft another amendment which noble Lords might care to consider between now and Report. Being able to enforce these provisions as drafted is also a significant aspect. For example, it may be hard to judge whether a product could reasonably be expected to attract children, as the amendment would require, or to determine what might be aimed at or would attract 18 year-olds but not, let us say, 17 year-olds or 13 year-olds.
I am grateful to noble Lords for raising this important issue and for keeping this debate at the front of our minds. It is a debate that we need to continue. As I have said, the Government have yet to make a decision on this policy, but if we were to bring in such a measure, we would not want it to be circumscribed in the way that is proposed. We would not want to set up a situation in which both branded and standardised packs could be sold legally depending on where they were sold and what other products were sold alongside them. I therefore urge noble Lords not to press their amendments and respectfully suggest that they consider other avenues for bringing this matter before the House on Report.
Lord Hunt of Kings Heath
I always admire the noble Earl’s eloquence when defending the indefensible and he has done that par excellence today, but is not the reality that this is an opportunity for the Committee and the House to express a view in principle on the issue? It would then be up to the Government. As the noble Earl knows, when that happens, the Government simply come back with an amendment at Third Reading to deal with the technical issues. Surely the issue here is whether the House goes forward to a vote in principle, which I hope it might be able to do.
Earl Howe
Well, my Lords, if I could repay the compliment to the noble Lord, Lord Hunt, he has very eloquently presented the case for the Government to go away and think further about this, which indeed we will do. I come back to what I said at the beginning of this debate: the message from this Committee has been delivered loudly and clearly. I am grateful to noble Lords for that. I say again that the Government’s mind is not closed on this issue.
Baroness Howarth of Breckland
As one of those who are not quite so eloquent but are equally committed to the cause, I think that the Government would be in a far better position if we had some timescale. We now know when Report stage is likely. I am much attracted to what the Minister said. I would much prefer that we had a universal position that protected adults as well as children because of, as he said, the influence that adults have on children. Many more noble Lords might, like me, be influenced if they knew that something was likely to happen. The anxiety is that, unless we press this, nothing will happen.
Baroness Finlay of Llandaff
My Lords, it falls to me to respond. I am most grateful to all noble Lords who have spoken. I am grateful that nobody has spoken against the amendment that would prevent people smoking in cars when children were there. The evidence is overwhelming. This must fall squarely within this Bill; it is about protecting children from harm. If I may draw on the analogy of a tin box used by the noble Lord, Lord Storey, that would be classified without doubt as child abuse. It would fall to the police to prosecute in such a case—indeed, with other traffic offences, it falls to the police.
I was intrigued to hear that the Minister places so much faith in the public education campaign and cites cost of enforcement as a problem. How much has the public education campaign cost in total, including its evaluation, and what are the cost estimates for the police?
In Wales there has been a public education campaign since 2012 to try to stop people smoking in cars when children are present, and it is currently being evaluated. I live there and I can tell noble Lords that it is not working. In supermarket car parks you see children being offloaded into the back of the car, the shopping offloaded into the boot and a cigarette offloaded out of a packet into the driver’s mouth before they set off. I would dearly love to tap on the car windows of those people and say, “You can’t do that” because they are endangering the children in the vehicle. I also refute the notion that it would be very difficult to identify who is smoking when there are children in the car. The Government are committed to children’s health and well-being and have shown that commitment in many different ways—for example, through sporting initiatives—yet they allow a practice to continue which permanently damages children’s lungs and physical development and leads to premature death in some cases. Indeed, the instances involving asthma sufferers cannot be ignored.
I remind the Minister that the legislation on smoking in public places has brought about huge behavioural change and been extremely successful. I have been repeatedly thanked for that legislation by smokers and non-smokers, as must have happened to other noble Lords who campaigned prior to that legislation going through. That legislation has made it easier for them to attempt to stop smoking or to cut down. I can honestly say that nobody has been angry with me about the legislation having gone through, although some anger was shown when it was being discussed.
I was intrigued by the Minister’s comment about the complexity of Amendment 264 vis-à-vis producing standardised packaging. He may not wish to comment on the detail of it, although I am happy to give way if he does. However, I hope that he will meet me and other Peers who are interested in this issue to explain what problems may arise in this area. I am grateful to him for his critique of the amendment and see exactly what he means. We certainly need to take it away, redraft it and bring it back on Report. We do not want to make it harder for retailers who sell other things to children, such as comics, by differentiating and having some kind of two-tier system.
As regards the point raised by the noble Lord, Lord Palmer, in relation to illicit products, Margaret Hodge, chair of the Public Accounts Committee, found that the illicit market reduced from 20% to 9% between 2000 and 2012-13. The 9% figure applied also to 2010-11, although it dipped to 7% in one year. Margaret Hodge commented that the tobacco manufacturers are complicit in this illicit trade by,
“supplying more of their products to European countries than the legitimate market in those countries could possibly require. The tobacco then finds its way back into the UK market without tax being paid. The supply of some brands of hand-rolling tobacco to some countries in 2011 exceeded legitimate demand by 240%”.
I understand that oversupply to Ukraine has been identified, which fuels a £2 billion black market that has reached across the EU, and that in 2011 Japan Tobacco International was investigated and is now under official investigation by the European anti-fraud office. So I am afraid that it is not a nice story. I am not certain that the argument about revenue saved can possibly be stacked up against the cost of lives shortened, health damaged, children left orphaned and all the other things that we know go on. I beg leave to withdraw the amendment but we will be coming back to it at the next stage of the Bill.
“(7) Entitlements provided by regulations made under this section may be transferred to another family member or other related party in the following exceptional circumstances—
(a) where a mother is incapacitated;(b) where a medical practitioner prescribes that the mother is unable to look after the child; or(c) where the mother dies in childbirth.”
Lord Stevenson of Balmacara (Lab)
My Lords, we have moved on to Part 6 which has been greatly anticipated on my side of the House and, I am sure, with equal enthusiasm and excitement by my noble friend the Minister. We have a substantial number of amendments to get through and I know there is pressure on all sides to try to complete this within the time. We will do what we can to achieve that but there are still some very important issues that we want to pick up and I make no excuse if we spend some time debating them. Having said that, I reassure the Minister that, by and large, the Opposition are very pleased to see many of the measures that are proposed in these parts of the Bill. We have comments for discussion and we will do our obvious constitutional duty to scrutinise those things that are there, but we are not making major objections to them. We seek to refine, occasionally to add and perhaps to probe the Government a bit more on some of the reasons why things do not appear as we would like them to. I am also grateful to the Minister for allowing us a chance to talk to him and the Bill team which was very useful.
Amendment 266AZA would ensure that there is flexibility in the legislation for exceptional circumstances. The purpose is to ensure that if children need to be looked after in exceptional circumstances, the parental leave enabled by the substantive clauses can be allocated to someone else such as a grandparent, an aunt, an uncle or even the father if he would not ordinarily qualify.
It does not take much to imagine how devastating exceptional circumstances could be. It may be that the mother becomes incapacitated, very ill or even dies in childbirth, or that there is some other complication such as a late-pregnancy stillbirth—something that my mother suffered—that will require urgent and immediate assistance but also longer-term assistance over the period covered by the shared parental leave. At present they would be able to take only a limited amount of time—almost certainly unpaid time off for dependants—if indeed it were granted by their employer.
Similarly, there may be circumstances in couple families where the mother is unwell but the father does not qualify for shared leave to care for the new baby. The Bill should make provision for exceptional circumstances when shared parental leave and pay could be transferred in such difficult and, as I have said, exceptional circumstances. Surely we ought to be doing everything that we can to support families in these circumstances.
We had a previous meeting with the Minister in which we had a brief discussion on this point, and I have read the response of his honourable friend in the other place. I understand that he may feel that the amendment could distract from the main thrust of the Bill and that his initial position may be that the Government do not expect parties who are not parents or partners to share parental leave. I also fully understand, to anticipate other amendments due to come up shortly, that the Government do not want to weaken the engagement of fathers in raising their children. We accept that there is strong evidence that the early engagement of fathers in caring for their children leads to positive outcomes for children. However, the amendment is really about exceptional circumstances, already outlined, in which other statutory provisions may just not work or, if they did work, would not be sufficient, as in the case of a late stillborn child, where of course by definition shared leave cannot be invoked.
If the Government cannot accept this amendment—although I hope that they will—perhaps the Minister will acknowledge that they might consider using the provision under the new sections in the Bill to make regulations for these sorts of extenuating circumstances. I beg to move.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, I thank the noble Lord, Lord Stevenson of Balmacara, for bringing this matter to the attention of the Committee, and for his broad support for the shared parental leave provisions.
The noble Lord’s Amendment 266AZA proposes that in certain prescribed circumstances, other family members or related parties should become entitled to shared parental leave. The circumstances that he has outlined include where a mother is incapacitated, where a medical practitioner prescribes that the mother is unable to care for her child, and where the mother dies in childbirth.
Nobody would wish for any family to have to deal with these difficult and sometimes tragic situations. Unfortunately, many families have no choice. The challenge of looking after a very young child in these situations may be overwhelming. Often relatives or family friends step in to help those concerned, and it is important that we recognise the extremely important contribution that these individuals make, often in particularly challenging circumstances.
However, it is essential to remember what the introduction of a new system of shared parental leave and pay is aiming to achieve. This policy aims to facilitate shared parenting. This means encouraging greater paternal involvement. Many fathers want to be more involved in the upbringing of their children, and there is clear evidence that this brings real benefits not only to the parents but to children and young people themselves.
In the circumstances that have been raised during this debate, shared parenting—in a very literal sense—is not possible. The amendment tabled by the noble Lord, Lord Stevenson, would enable the sharing of leave with another family member or related party when the mother is unable to care for her child, either through incapacity, illness or death.
The way in which shared parental leave may be taken in circumstances where the mother dies will be set out in regulations. For the benefit of the Committee, I will outline how the Government envisage that this will work. If the mother dies before the parents have opted in to the new system—for example, if she dies during childbirth—an eligible father or partner will become entitled to the full balance of shared parental leave and pay. If the parents have already opted in to the new system, any outstanding leave and pay for which the mother was eligible will become available to the father or partner, if he is eligible.
The Government do not intend to make equivalent provisions where the mother is incapacitated or where a medical practitioner prescribes that a mother is unable to look after her child. This is because the mother may need to remain on maternity leave, or may make a recovery and wish to use the balance of her shared parental leave in the way in which she had originally envisaged. It may not always be possible to determine how permanent a change in situation is.
The Government recognise the extremely valuable contribution that relatives and friends make to support families at a difficult time. However, we do not believe that these individuals should become entitled to shared parental leave and pay. It is essential that we send the right message to fathers that their role as a parent is as important and valued as that of the mother.
I am grateful for the opportunity to discuss these issues with the Committee and I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his reply, which was not unexpected. I return to my original point: this is really a question of humanity and trying to recognise extreme circumstances. I asked the Minister to consider whether some of the aspirations in this amendment could be met within the general flexibility that is provided elsewhere in the Bill, but he declined to say that he would. Of course, it still exists so one can still hope that that message will be recalled when and if these issues come up. To be perfectly frank, there are circumstances in which fathers who have not had the statutory 26 weeks’ employment at the requisite rates within a single employer simply cannot get eligibility for the sort of leave that would come up under these exceptional circumstances. Sadly, these people will miss out, so there is a gap. We shall reflect on what has been said and read carefully what has been opined to the Committee and may come back to it, but in the interim I beg leave to withdraw the amendment.
“(8) Regulations under section 75E may provide for the taking of leave under section 75E in a single period, or in non-consecutive periods, or in periods shorter than the period which constitutes, for the employee, a week’s leave.”
Baroness Lister of Burtersett (Lab)
My Lords, Amendment 266AA would introduce regulations to enable shared parental leave to be taken on a part-time basis, if desired, rather than in blocks of at least a week. I am grateful to Working Families for its assistance with this amendment, which has the support of a long list of organisations, and to the noble Viscount for meeting me and Adrienne Burgess of the Fatherhood Institute recently.
The amendment attempts to hold the Government to their original proposal in the Modern Workplaces consultation: that parents would be able to take the new form of leave in,
“smaller chunks or on a part-time basis”,
if their employer agreed. This was warmly welcomed by both family organisations and employers, yet the Bill reverts to a minimum period of a week at a time. There are many arguments in favour of part-time leave, which is a feature of many parental leave schemes elsewhere in Europe. It would help low-income parents who may not be able to afford full-week periods of leave for any length of time. The TUC points out this week that inadequate financial support for new parents impacts disproportionately on low-income families. Indeed, more flexible leave that could be used to complement part-time work was proposed in a Joseph Rowntree Foundation report on tackling in-work poverty published just last week.
It would allow for a smooth transition back to work, which could make it easier to settle children into childcare. It could encourage fathers, who might be reluctant to take a full-time block of leave, to take parental leave. In doing so, it could help usher in the change of culture of redefining early parenting as a joint responsibility that the Government keep talking about and that many of us want to see. I shall expand on this when I move Amendment 266B. It could provide parents with flexibility and could make it easier for employers. It is worth noting that, in a recent survey by the Family and Childcare Trust, flexible working was parents’ top priority for improving the quality of family life. This is just one aspect of flexible working, but it is an important one.
The Government have said that they are sympathetic to the idea but are concerned at the administrative complexity involved. They have suggested an extension of keeping-in-touch days as an alternative solution. While such an extension is welcome, it is not a substitute for part-time leave. Parents do not have to be paid for attending keeping-in-touch days, which are designed for a different purpose.
If the Government are genuinely open to the idea of part-time leave, surely it would make sense to make provision for it to be introduced at a later date by secondary legislation, once it has found a way through the administrative hurdles. I therefore hope that the Minister will be willing to take this away and give it further consideration. I cannot believe that where there is a political will there is no legislative and administrative way. If the Minister is not prepared to consider taking such regulation-making powers, I can only assume that there is no political will to inject this important element of flexibility into the parental leave scheme, despite the fact that flexibility lies at the heart of the scheme’s policy objectives as set out in the impact statement. I beg to move.
Baroness Tyler of Enfield
My Lords, to explain why I am sympathetic to this amendment, while I am supportive of what the Government are seeking to do through shared parental leave, which is absolutely right, the amendment raises two particularly important points. One is the position of parents on low incomes who will find it difficult to afford long periods of leave, particularly if they are working at less than the minimum wage. We know that the number of people working at, or even below, the minimum wage is significant.
Secondly, the amendment would allow that smooth transition back into work which may help children settle into childcare. From the work that I have done in other contexts around childcare, it is clear that it helps some children to be eased into childcare on a part-time basis, rather than going for a whole week’s worth. For those two reasons, I am particularly sympathetic and attracted to the amendment, although I cannot pretend to have been involved in all the detailed thinking around it.
Lord Stevenson of Balmacara
I support my noble friend Lady Lister in her amendment and have added my name to it. I thank the noble Baroness, Lady Tyler, for her contribution to this debate. This matter seems central to the thrust of this section of the Bill and it seems odd that the logic set out in the original consultation paper and impact assessment has not been brought to a proper resolution within the Bill.
Two issues are clearly at play here. It seems perverse not to permit people who may have a complicated and difficult transition between full-time caring and going to work to do that in chunks of less than a week. Although this has been explained to me by two notable experts, I still do not quite get why it is so difficult to calculate pay in terms of less than a week. I understand the complications of doing it on a shared-parenting basis, because there are two sets of employers and two sets of payments to be looked at and, obviously, the Government are the third person in the room. Even so, when I was last involved in serious payroll work, we had pretty good figures for what it cost to operate in terms of an hour, a day or a week. That came up particularly in relation to strike action. I am sure that the noble Viscount will have been in similar situations, although I am sure that workers in his businesses were never on strike against him. However, when workers go on strike and you have to deduct pay for it, you have to work out exactly what it is, otherwise you get into trouble. In the systems that I was operating, we had a clear view of what the cost was at that level. If you can calculate what it costs per hour to employ somebody, you can presumably also make the system flexible enough to allow them to work in less-than-week blocks, which is one of the proposals in the amendment. On part-time leave, all the points have been made and I support them.
Viscount Younger of Leckie
My Lords, the Government understand the intention behind the amendment and I am glad of the opportunity to have this short debate on the issue today. Before I respond to this specific amendment, I should like to take a moment to set out the rationale behind the introduction of shared parental leave and the importance of these changes for families. Bearing in mind the tenor of the comments made earlier by the noble Lord, Lord Stevenson, about brevity, I shall attempt to be brief.
The restrictions in the current maternity and paternity system are outdated and do not reflect the way in which modern families want to raise their children. They compel mothers to take the bulk of the time off and give fathers no choice but to stay at work in the early stages of their child’s life. This approach maintains the outdated perception that a mother’s place is in the home and a father’s place is at work. It is known to damage women’s career prospects, because employers expect young women to take large amounts of time out of the workplace to raise children. It can also mean that mothers feel unsupported in caring for a child, and fathers do not feel involved in their child’s upbringing.
It is right that mothers are able to take all the leave that they need to recover from birth and to bond with their new baby. However, they should be able to return to work without sacrificing the rest of their leave. This should be available to the family to use in whatever way they choose. For some families, this will mean that the father takes on the majority of the caring responsibilities very shortly after birth. For others, it will mean mixing periods of work with periods of leave to share childcare. This Bill will make this possible for the first time. The introduction of shared parental leave and pay aims to give families flexibility in how they share childcare when they have a baby. The current arrangements are rigid and inflexible, enabling only one parent to take leave at a time and allowing parents only to “take it in turns” to care for their child.
The changes introduced by the Bill will enable parents to take leave in blocks as small as one week and will remove the restriction on parents taking leave together. The Modern Workplaces consultation, which the Government published in May 2011, set out the Government’s ambition for leave to be taken in blocks of less than a week to allow parents to take leave on a part-time basis. Unfortunately, in this instance, this worthy ambition has not been possible. I will explain why.
The UK has one of the most flexible labour markets in the world. UK employment legislation gives employers and employees freedom to agree individual contracts between themselves, without restricting them to set working hours or working patterns. Shared parental leave is flexible. It will allow parents to choose how to share it between themselves and to take leave as an individual right, in discussion with their employer. This variation in working arrangements creates a difficulty when trying to allow shared parental leave and pay to be taken in part-week blocks.
Here, I disagree with the noble Lord, Lord Stevenson, over the mathematical calculations. One parent may have a standard working week of 37 hours a week, or 7.2 hours per day, and their partner may work 16 hours per week working two eight-hour days. Calculating the ratio of the weekly entitlement to shared parental pay that should be paid when an individual takes one day off would be complex for an employer. However, this is magnified when a parent decides to transfer their remaining part-week entitlement to their partner for them to use. It would be even harder for small businesses, without access to an HR resource, to administer. The Government are mindful that shared parental leave and pay will be an innovative system. To add into the new system the facility to take leave and pay in periods of less than a week risks creating significant additional costs and burdens for employers.
The Government instead propose to allow shared parental leave to be taken on a part-time basis, using a principle that is already well used and understood by employers. Under existing maternity leave provisions, mothers are able to return to work for 10 individual working days without ending their maternity leave or losing their entitlement to maternity pay for that week. These are called keep-in-touch, or KIT, days. The Government propose to give parents on shared parental leave additional keep-in-touch-style days to allow part-time working on shared parental leave without affecting entitlement to statutory shared parental pay. It is intended that these days will have a different name in the context of shared parental leave, which I hope addresses one of the points made by the noble Baroness, Lady Lister, because the intention for shared parental leave would be different from the intention for maternity leave. The name would reflect the fact that these days can be used to achieve a part-time working pattern or a staggered return from shared parental leave.
The Government are aware that some interested parties, such as the TUC, are concerned that there is no requirement on an employer to pay an employee more than their statutory payment when they are taking a keep-in-touch day. The Government will provide guidance to employers on how to use these provisions and will strongly encourage employers to pay an employee their full contractual rate if they work on a keep–in-touch day.
The Government believe that it is important to maintain the flexibility in keep-in-touch days to allow parents to return to the workplace for short visits. The Government do not wish to discourage these sorts of visits by forcing an employer to pay an employee’s contractual rate. However, where an employee is undertaking work, it is appropriate that that employee is paid accordingly. Keep-in-touch days are entirely discretionary for both an employee and employer to use. An employer cannot insist that an employee uses a keep-in-touch day and an employee cannot insist that their employer allows them to work part-time by using a keep-in-touch day.
As I have mentioned, shared parental leave and pay is an innovative system and will need time to bed down. It is right that proposals for leave and pay to be taken in periods of less than a week should be considered alongside any review of the shared parental leave system. The noble Baroness, Lady Lister, asked why we do not take powers in the Bill to allow shared parental leave to be taken on a part-time basis, to be set out, in effect, in regulation. The Government are sympathetic to this proposal but without a clear policy to enable the shared parental leave to be taken part-time, regulations cannot be designed at this time. My department has explored this fully and will continue to consider it as part of the review of shared parental leave.
I hope that reassures the noble Baroness that the Government share her ambition and I ask her to withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to the noble Baroness, Lady Tyler, and my noble friend Lord Stevenson for their support for this amendment. The noble Baroness’s own experience is extremely important in terms of easing children back into childcare.
I will say more about this when I speak to my next amendment but I very much share the Government’s philosophy, as set out by the Minister, on shared parental leave. That is why I am so disappointed that they are not willing to go that little bit further.
I can see that there are administrative difficulties; I am not convinced that they cannot be sorted out. I am slightly encouraged by what the Minister said about changing the name of the keep-in-touch days and sending out guidance to employers about payment. I do not know whether the Minister has any figures now—perhaps he could let me know—on what proportion of such days are paid at present. It would be quite helpful to know that, perhaps before Report, in case we want to come back to this matter.
No one is asking for these regulations to be drafted now. Quite often a Bill will go through and regulations are not drafted for some time afterwards. Would it not be easier to put them in the Bill now? Even if nothing is done until the review takes place, at least they are there without having to legislate again, if by that time it becomes clear that part-time leave is really necessary for the shared parental leave provisions to fulfil the goals that we share with the Government. I hope that the Minister might be willing to think again about that. We are not asking for those regulations to be laid now, simply that the framework is there to enable flexibility in the future. On that basis, I withdraw the amendment.
Lord Touhig
“( ) Where, during an employee’s shared parental leave, it is not reasonably practicable by reason of redundancy for the employer to continue to employ him or her under an existing contract of employment, the employee is entitled to be offered a suitable alternative vacancy that arises during the shared parental leave period.
( ) The shared parental leave period means the period from the date of notification of intention to take shared parental leave, ending at 52 weeks from the birth of the employee’s baby.
( ) Where there is a suitable alternative vacancy with the employer or his successor or an associated employer, it must be offered before the end of the existing contract of employment and takes effect immediately on the ending of the previous contract.
( ) The new contract of employment must be both suitable work for the employee and appropriate for him or her to do in the circumstances and its provisions as to the capacity and place in which he or she is to be employed, and as to the other terms and conditions of employment are not substantially less favourable than if he or she had continued to be employed under the previous contract.”
Lord Touhig (Lab)
My Lords, the purpose of my Amendment 266AAA is to replicate vital existing protections afforded to women on maternity leave within the new system of shared parental leave. It provides protection to parents for the entire period during which they are entitled to take shared parental leave, rather than simply the period when they are actually away on leave. The amendment replicates the approach taken by Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999. This states that in the case of a redundancy, women on maternity leave must be offered any appropriate alternative vacancy. Such protections have been crucial in giving women the confidence to take the statutory maternity leave to which they are entitled, thus overcoming the fear that in so doing they may be adversely affecting their job or career prospects.
It is important that the new system of shared parental leave allows parents to feel a similar level of confidence when taking leave. The intention of the new system is that parents can take leave in short, discontinuous blocks. Consequently, for this to happen, protection must not be limited to those periods when a parent is actually on leave, as this would discourage parents from using the new system of shared parental leave in the way in which the Government hope and intend that it should operate.
The importance of designing appropriate protections for parents taking leave under the new system has already been acknowledged by Ministers in the other place. This amendment not only creates the necessary protections to ensure that parents have the confidence to use the new system of shared leave as intended but creates a system of protections that is easy for both employee and employer to understand. The clarity and scope of the protection offered by this amendment will give parents the confidence they need to fully utilise this new scheme of shared parental leave. I beg to move.
Lord Stevenson of Balmacara
My Lords, Amendments 266AB, 266AC and 266C in this group stand in my name. Taken together, these would ensure that existing protections in relation to redundancy and leave are not lost by requiring rather than permitting regulations regarding redundancy during shared parental leave to be made and to include provision requiring an employer to offer alternative employment.
Amendment 266C would enable a parent who has taken a period of leave of 26 weeks or less to return to the same job, and not just a job within the same employer. My noble friend Lord Touhig has set out the general case for where these amendments would take us. I would like to pick up a particular aspect of that which is the growing concern about discrimination. Maternity rights and employment regulations that enable parents to balance work and family responsibilities have been key drivers in giving women greater access to work and, importantly, an independent income. Over the past few decades, thanks in no small part to changes to workplace protections, women have entered and stayed in the labour market in unprecedented numbers. However, there is still far to go. Our workplaces have not adapted to meet the needs of this changing and gender-diverse workforce. Women pay a penalty in the workplace as a result of spending time away from the labour market to have and care for children, and this time away often negatively affects future career prospects and earnings. This “motherhood penalty” helps hold the glass ceiling intact and reproduces gender stereotypes about women as the “caring sex” that fuel occupational segregation, to which the Minister referred in a previous debate. People often talk about jobs being characterised as men’s or women’s work. For too many women, this still culminates in pregnancy discrimination more generally in the workplace.
One of the cumulative impacts of the effects of the “motherhood penalty” is that it ultimately leads to a lack of women in positions of power at the top of all quarters of political, public and professional life. We surely all feel that that is out of date. Even before the recession began, it was estimated by the Equal Opportunities Commission that up to 30,000 women lost their jobs due to pregnancy discrimination each year. There has been no similar research into the incidence of pregnancy discrimination following the economic downturn, but all the indications are that it has increased significantly. In times of austerity, when employers cannot afford to take any perceived risk to making profit and growing business, discrimination against women in the workplace is likely to rise as women, particularly of child bearing age, appear to be the riskier and less affordable choice for employers.
Working Families, which has been helping us with research in this area, has evidence that many women are subject to discrimination while pregnant or on maternity leave. Its helpline report provides evidence of a hardening of attitudes among employers and more blatant discrimination taking place. This includes women being sidelined or left out when promotions are being considered, demoted on return from maternity leave, and in some cases women suffer harassment and pregnant workers are sacked. These are unacceptable practices and these amendments would help to remedy them.
Viscount Younger of Leckie
My Lords, I am glad that these amendments give us the opportunity to debate the detail of how shared parental leave will work in practice for families. Shared parental leave will offer families new choice and flexibility about how they manage their childcare arrangements in the first months of a child’s life. It is true that this opportunity will be used by parents only if they feel confident that they will continue to be treated fairly in the workplace when they return.
Current maternity and additional paternity leave provisions provide protections to parents against dismissal; additional support when parents are absent from the workplace during a redundancy process; and the right to return to work into the same job, or in certain cases if that is not reasonably practicable, a similar job that is suitable for them and of equal standing. These protections are important to parents and will directly influence the decisions they make in whether to take maternity or paternity leave. Mothers on maternity leave and fathers taking additional paternity leave currently have protection from detriment while taking leave. Parents taking leave also have the right to be offered a suitable alternative vacancy in a redundancy situation, where there is one available. This alternative must be suitable and appropriate for the individual.
The Government recognise that it is important to provide employees with protection from discrimination and detriment when they are absent from the workplace for parental reasons. I am grateful to the noble Lord, Lord Stevenson, for raising this. I believe that we think alike on this important issue. Furthermore the Government believe that pregnancy discrimination and discrimination against parents taking leave to care for their children is unacceptable in any form. This is why the Government have recently announced new research into the attitudes of employers on pregnancy and maternity leave as well as the prevalence and causes of pregnancy discrimination in the workplace. This research will be jointly funded by the Commission for Equalities and Human Rights, the Government Equalities Office and my department, the Department for Business, Innovation and Skills.
I would like to reassure the Committee that the Government intend to make regulations to provide appropriate protections for employees in the case of shared parental leave. The Government recognise that it is important to provide protections for parents who are absent from the workplace on parental leave and are currently considering the most appropriate way to protect parents taking shared parental leave from being disadvantaged in a redundancy situation. The Government intend to publish draft regulations in the coming months on all key elements of the shared parental leave policy. This will include the details of the protections while on shared parental leave. The Government’s approach will recognise the difficulties that parents may face when taking shared parental leave. Any protections will be proportionate to support parents in an effective way, enabling them to take leave with confidence that they will not be disadvantaged. This will be balanced with the needs of employers to be able to manage their employees effectively.
I turn now to the right to return to the same job. Mothers returning from a period of ordinary maternity leave have the right to return to the same job. This protection is also applied to fathers taking additional paternity leave. Where mothers return to work after a period of additional maternity leave they have the right to return to the same job, or where this is not reasonably practicable, the right to return to a similar job which is suitable and appropriate, the point that the noble Lord, Lord Touhig, made earlier. The Government consulted on how to apply these important protections to parents taking shared parental leave in an appropriate manner. Shared parental leave will create different challenges for employers. An employee will be able to take short, discontinuous absences from the workplace under shared parental leave and this means that employers will have more opportunity to engage an employee in any reorganisation at work while they are in the office.
The Government are currently carefully considering the responses to the consultation on the administration of shared parental leave. This includes how to apply the right to return to the same job to parents taking shared parental leave. I am grateful to the noble Lords, Lord Stevenson and Lord Touhig, for bringing this important matter to the attention of the Committee, but I hope they are reassured that the Government intend to provide protections for parents taking shared parental leave, and the commitment that the details of this will be set out in regulations in the coming months. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Lord Touhig
My Lords, in what seems an age ago now, I was once the Labour Party parliamentary candidate in Richmond upon Thames and I was invited to address a conference of Labour women. I saw the hackles go up when I said that, as a country, we were wasting a fortune educating women because when they complete their education we put every barrier in their way to stop them getting a job and having a family which, as a man, I take for granted. We still have a long way to go to make sure there is fairness and equality for women in the workplace. I am encouraged by what the Minister says about how we might see the hopes of the amendments tabled by myself and my noble friend Lord Stevenson realised in regulations. All I can say to him when he draws up his regulations is to think of the Welsh “chwarae teg”—fair play. That is all we are asking for. I beg to withdraw the amendment.
“Rights to father quota of leave
(1) In Part 8 of the Employment Rights Act 1996, after section 80E insert—
“80EA Entitlement to father quota
(1) The Secretary of State may make regulations entitling an employee who satisfies specified conditions as to the relationship with a child or expected child or with the child’s mother to be absent from work on leave under this subsection for the purpose of caring for the child.
(2) Regulations under subsection (1) shall provide that such leave shall be taken before the end of a period of 56 weeks beginning with the date of the child’s birth.
(3) Provision under subsection (1) shall secure that where an employee is entitled to leave under this section in respect of a child he is entitled to at least four weeks’ leave.”
(2) In the Social Security Contributions and Benefits Act 1992, after section 171ZT insert—
“171ZTA Entitlement to father quota
(1) Regulations shall provide that where an employee is entitled to a father quota of leave under section 75E of the Employment Rights Act 1996, the employee is to be entitled to payments known as “father quota pay”.
(2) Father quota pay under subsection (1) shall be at the earnings related weekly rate of 90 per cent of the employee’s average earnings for the first six weeks in respect of which it is payable, followed by a fixed weekly rate thereafter which shall not be less than the weekly rate of the full time national minimum wage in respect of the remaining portion of the father quota pay period.””
Baroness Lister of Burtersett
My Lords, Amendments 266B and 266CA concern the father’s entitlement to and use of parental leave. Amendment 266B paves the way, again by means of secondary legislation, for a father quota. Such a quota would provide a father with an independent right to at least four weeks’ parental leave at 90% of his earnings for up to six weeks.
This is a probing amendment designed to air the issues, so I do not propose that we go into the precise wording. I am grateful to the Fatherhood Institute and Working Families for their support on the amendment, which also has the support of a long list of other organisations, and to the noble Viscount for engaging so constructively both in writing and in person. Lastly, I am grateful to the noble Baroness, Lady Young of Hornsey, for adding her name to the amendment, but she apologises that she cannot be here today for family reasons.
In my academic work on women’s citizenship in the broad sense of the term, I have concluded that women will achieve genuine equality in the public sphere of the labour market and the polis only when men play a greater role in the private domestic sphere of the home. To take one example, unequal sharing of caring work between the sexes has been identified as the largest single driver of the gender pay gap. Shifting what is called in academic jargon the “gender division of labour” is therefore critical to gender equality. As my noble friend Lord Touhig has just pointed out, we still have a long way to go.
From the perspective of children, the Minister acknowledged in his letter to me the important role that fathers have to play in childcare and the beneficial impact of their involvement in the early stages of their child’s life. Indeed, he has reiterated the point today. There is no disagreement between us on the end goal of enabling and encouraging fathers to be more closely involved in the care of their children, be that from the perspective of gender equality or the best interests of the child—or, as the Joseph Rowntree Foundation report that I mentioned argued, tackling in-work poverty among families with children.
The cross-national evidence suggests that a key policy lever to achieve this goal is to preserve a period of adequately paid parental leave for fathers on a “use it or lose it” basis. A European Commission document on the role of men in gender equality states that,
“the ‘nordic’ model of parental leave (‘father quota’) has been adapted and implemented with growing success”,
and recommends its adoption across the Union. Even Germany, which hung on to a male breadwinner model longer than many other European countries, has gone down this path and, like a number of other countries, has added a bonus to the overall length of paid leave if the father takes a specified period. The UK is in danger of becoming a European laggard when it comes to a forward-looking parental leave policy.
The coalition Government’s Modern Workplaces consultation placed great emphasis on the value of shared parenting and proposed just such a scheme as a means of encouraging fathers to play a more active role in their children’s upbringing. It observed that,
“international evidence suggests that fathers’ usage of parental leave is higher under schemes that offer them targeted or reserved leave as opposed to just making shared leave available to the father”.
In Iceland and Norway, fathers using parental leave increased from tiny proportions to 80% and 90% respectively following the introduction of reserved leave. Iceland is particularly interesting because it provides for three months each for the mother and the father and three months to be shared between them as they wish, and it has just been agreed unanimously to move to a five-plus-five-plus-two model because it has been so successful. The average number of days of leave taken by fathers more than doubled between 2001 and 2008 as a result. According to the World Economic Forum, Iceland now ranks first in the world for gender equality.
More generally, the latest issue of the International Review of Leave Policies and Related Research conducted by the International Network on Leave Policies and Research concludes that it is striking that fathers’ use of leave responds to policy changes. There is also evidence to suggest that the more the father is involved when the child is very young, the more involved he is likely to be as the child grows older, to the benefit of fathers, mothers and children. Of course, as the Fatherhood Institute concedes, it is not possible to prove a causal relationship, but it suggests that the association is strong and consistent.
Baroness Tyler of Enfield
My Lords, I am sympathetic to the thinking behind the amendment. The idea of a “father quota”—an independent right for fathers to at least four weeks of leave—could be important if we are to achieve our aim, which the noble Baroness, Lady Lister, set out clearly and which is all about changing the culture.
There are two aspects of the culture that need to be changed. One is the expectation within the workplace, on the part of both employees and employers, about who is going to take parental leave. The burden is so much on the mother at the moment that the new legislation, which I strongly support, could make a reality of encouraging fathers to take parental leave and be much more involved in the early days and weeks of looking after newborn babies and children in their first year.
The second culture change that we are looking for is a different way for couples to decide how they are going to juggle bringing up their children and their work responsibilities—something that many people struggle with. We all know that it is not easy. What the Government are proposing is very helpful, but I want to see something that is going to provide that additional incentive to fathers to take this up. I really like the phrase “use it or lose it” because it says clearly what we are trying to do here.
The noble Baroness, Lady Lister, went through the evidence comprehensively, so I certainly do not intend to repeat that. When I reviewed the evidence, I was particularly struck by the impact that this had had in the nordic countries. It really seemed to be the thing that made the difference and started to tip the balance to get that culture change. If we really are trying to encourage fathers to take up leave—I think all of us here want to do that, judging by what has been said so far today—we need to take some heed of the international evidence of what works.
Baroness Meacher (CB)
My Lords, I will speak very briefly, having not participated in this Bill because of other commitments, in support of the noble Baroness, Lady Lister. As others have said, we are pressing here for a change of culture. We are looking for fathers to play a much more active role in the upbringing of their children. Clearly, as my noble friend Lady Lister has rightly said, if fathers are involved right at the beginning, they bond with the baby and will then be much more involved throughout the child’s early life. This has to be good. In my view, we are seeing that change of culture: more and more fathers are bonding with children in the early stages and being much more involved throughout the child’s life.
I want to put on record the link between this and what I regard as the Government’s very helpful inclusion in this Bill of a recognition of the equal importance of both parents to a child if the tragedy of divorce strikes. If you involve fathers very closely at the beginning of a child’s life, they bond, they become involved and they care for that child, but they are cut out after a divorce—which happens, as we know, all too often in this country year after year. This is actually very cruel. Maybe it was okay in the old days for men to remain outside the family, unattached, but if we are all working towards greater equality of mothers and fathers in terms of their involvement in the family—and therefore greater equality for women in the workplace—we have to follow through, as I believe the Government are trying to do, to the post-divorce situation, should that tragedy arrive. Having been through it myself, I know exactly how that feels for everybody. I strongly support the noble Baroness, Lady Lister, but it is very important to see these two parts of the Bill joined up.
Lord Stevenson of Balmacara
My Lords, this is a very interesting area, and I am grateful to my noble friend Lady Lister for bringing her expertise to bear on it and for analysing the case so well. It is curious that we are stuck on the horns of a dilemma here. We all agree that we are trying to bring in a new system which rightly promotes joint responsibility for children, in terms of the various histories that we have heard about already, and the future we wish to carve out in our country in which parents jointly take greater responsibility.
The underlying strain in that point, which has been brought up by the two recent conclusions from the noble Baronesses, Lady Tyler and Lady Meacher, is that we are coming from a position where fathers have not actively played a part, although there are notable exceptions and some of those might be present today. However, the generality which is revealed by the research is that fathers, despite what has been available to them up to now, have not taken advantage of it and, to misquote an earlier comment, they have “lost it”, in the sense that they have not taken what is available.
We have a reasonable expectation that the new arrangements will be a step in the right direction. However, will they be enough? That is the question. In particular, I was struck by the points made by the noble Baroness, Lady Meacher, about divorce situations, which we regret but which are a natural part of all this. Without the bonding early on or even quite late on in the growth of the child, the loss of the relationship between fathers, mothers and children in a divorce is tragic and will have a lifelong impact.
There is a big picture here; there is a lot of activity and change. This is a new system and the Government are rightly defensive of it, but the Achilles heel in their approach is the statement in the impact assessment that the take-up of the proposed new shared parental leave by fathers is expected to be very low—this has been mentioned already—at between 2% and 8% of those eligible, or between 5,700 and 22,800 fathers, representing less than 3% of all maternities a year. Is that really all that our expectations are for that? If it is, it is up to the Government to defend why that represents a satisfactory situation compared to the rhetoric that we have been listening to from the Minister, which tells of a glorious engagement of a much higher percentage where people would expect joint caring. It is not joint if only 2% or even 8% of those eligible are taking up what is available, and indeed are “losing it” if they do not.
It is indeed disappointing, as my noble friend Lady Lister has said, that the scheme of the parental leave model, which is good and which we support, seems to be suboptimal if it does not include anything new for fathers in their own right. It provides an enabling power for the Government to extend paternity pay by regulation, and there is already a power to extend paternity leave by regulation so it may be that the Minister can give us more hope that this will happen. However, the commitment does not seem to deliver the same outcome as the proposal in the amendment that we have just heard about. A father quota would mean that a father could take leave, as has been pointed out, on a much more flexible basis later on in the first year rather than in the early stages and perhaps even later, particularly when the mother is making the difficult transition back to work. The time would be at his choosing and the leave would not reduce the mother’s entitlement; those seem to be very important elements in this debate. I admit that I myself am not sure whether or not more is needed here but the case is certainly there to be answered, and I look forward to hearing what the Minister says.
The second amendment in this group, Amendment 266CA, suggests that we bear down with laser-like intensity on the facts and watch what happens: we would see how many fathers are taking this up, whether it is 2%, 8% or better. We would look at the relatively poor pay that has been provided for this, and try to work out what is going on here. That is also an important element of the new proposals, and it would be wrong to let it pass without signalling that we are concerned about it.
As the Official Opposition, we cannot yet support what has been proposed because it is a big spending commitment; I accept that, so we are not doing so. However, we suggest that more information, research, reporting, discussion, debate and academic work would give us a better handle on this for future times. If the powers are there in the Bill to do something about it, we would be satisfied with that.
Viscount Younger of Leckie
My Lords, I welcome this debate because it is important to ensure that the changes made by the Bill provide the right framework for modern families and workplaces. I commend the noble Baroness, Lady Lister, on the tremendous work she has done in the field of gender equality, and I know that she speaks from a position of great experience when debating these issues. As we are on the subject of gender equality, the noble Baroness raised the issue of the gender pay gap, quite rightly, through encouraging fathers’ involvement in home life. The Government agree that this is extremely important. That is why we are extending paternity pay powers in this Bill and will look to extend paternity leave and pay at a later date if we need to encourage fathers’ take-up, but I will be saying a little bit more about that later in my comments.
Greater paternal involvement brings enormous benefits to parents and children. Fathers who are engaged in caring for their children early on, as has been mentioned, are much more likely to remain involved as their child grows up. This involvement means that their children benefit from better peer relationships, lower criminality, fewer behavioural problems, higher self-esteem and higher educational attainment and occupational mobility. The Government are aware of the international evidence that demonstrates that fathers are more likely to take leave if it is reserved specifically for them and paid at a higher rate. The Government’s original ambition to extend leave reserved exclusively for fathers was set out in their Modern Workplaces consultation, which has already been pointed out. It consulted on the concept of a so-called “daddy month”, which would have reserved a portion of shared parental leave for fathers in a very similar way to the “father quota” leave entitlement proposed in this amendment.
Unfortunately at this time it is not possible to realise this ambition. The challenging economic circumstances have made such an extension simply unaffordable. Perhaps the noble Baroness, Lady Lister, will not be too surprised when I mirror what was stated in a response in the other place. Now is not the time to place additional burdens on businesses and the Exchequer and I realise that this immediate response will be disappointing to the noble Baroness.
The new system of shared parental leave will give families unprecedented choice about how to share the leave entitlement in the early stages of their child’s life. The Government hope that the flexibility and choice provided by the new system of shared parental leave will mean that fathers will take more time off to care for their children. The Government plan to review the decision on whether to extend paternity leave and pay by using information on the take-up of shared parental leave and pay from the series of surveys on maternity and paternity rights and work-life balance. If fathers are not taking up the new entitlement, the Government will look to extending paternity leave and pay to encourage more fathers to take leave.
The Government are taking powers in this Bill to allow for the extension of paternity pay which would enable the Government to extend paternity leave and pay at a later date through secondary legislation. I want to make that clear to the Committee. To maintain simplicity in the system, the Government consider it more appropriate to extend leave to fathers through an extension of paternity leave rather than introducing a new type of statutory leave which would be complicated to administer. Paternity leave is reserved exclusively for fathers and is already well established and understood by fathers and employers.
The noble Baroness, Lady Lister, mentioned an annual review. An annual review of this policy may not be possible or appropriate. The shared parental leave policy aims to encourage a long-term culture change in the UK to enable and encourage shared parenting in the early months after birth. Any assessment of the outcomes of the policy needs to understand how employee and employer attitudes, as well as behaviours, are changing. There needs to be flexibility in how this is monitored. The best source of information to understand employee attitudes is through surveys of employers and employees. This data take longer to collate to ensure that the survey includes individuals who have experienced shared parental leave. The Government believe that this is the most appropriate information to inform decisions about the effectiveness of the policy.
The noble Baroness, Lady Meacher, and other noble Lords in the Committee raised a very important issue about culture and the culture change that was necessary. I agree completely that culture change is what we need to see and the Government agree that it is essential. We will provide supporting guidance as soon as we can to help this change happen and to encourage employers and employees to embrace it. The extent to which the culture change we all seek has come about will be a critical part of the review of these reforms once they have had time to bed in.
The noble Baroness, Lady Lister, raised the issue of the father’s quota. If it would help, we will write to her with more details on that, in addition to the letter that I have written. The noble Lord, Lord Stevenson, asked why the level of take-up for fathers is estimated at between 2% and 8%. The impact assessment used figures from the maternity and paternity rights survey that I alluded to earlier in which fathers were asked whether they would like to take more time, if it was available. However, those are initial take-up estimates, and we hope that the culture change that I mentioned earlier will encourage a higher take-up in due course.
I hope that the noble Baroness, Lady Lister, and the noble Baroness, Lady Young of Hornsey, who is not in her place today, are assured by the commitments that we have made. The Government will review the take-up of shared parental leave by fathers and consider extending paternity leave and pay in due course, to encourage fathers to take shared parental leave. Finally, I can reassure the noble Baroness, Lady Lister, that if paternity leave and pay is extended at a later date, the period within which it can be taken will also be extended. However, I hope, in the mean time, that she will withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to the noble Baronesses, Lady Tyler and Lady Meacher, for their support for this amendment. The noble Baroness, Lady Tyler, made a very important point about the workplace culture. The experience of some of the Nordic countries is that changing the workplace culture is crucial in encouraging fathers to take leave. There is a link between the right to parental leave and changing the culture, and I hope that the department will reflect further on that.
On the point made by the noble Baroness, Lady Meacher, it seems to me that if both parents were more involved in bringing up their children, it might keep them together. I am not sure whether there is any evidence to support that, but we know that conflicts about who does what in the home and so forth can contribute to breakdown. I am grateful to my noble friend Lord Stevenson for going as far as he was able to in the context, as I know he is sympathetic. I think we are all sympathetic, including the Minister. It is frustrating because I feel like the Minister made my case, in a sense, very eloquently, but then drew back from it by refusing to take that extra step.
I think I heard the Minister correctly and that he has made the commitment I asked for, which was that if paternity leave is extended, it can be taken later. The Minister is nodding his head, and it is very helpful to have that on the record. We now know that if paternity leave is extended at a future date, it could be taken—I hope he is saying—at any point during the parental leave period. That will reassure organisations outside that have been campaigning on this.
Unless this is what he proposes to write to me about, the Minister did not respond to my question about what plans the Government have to encourage fathers to take shared parental leave and whether he would give a commitment to consult on such plans and study what has been happening. There is a wealth of expertise—not so much mine but within this network—about what is happening in other countries. Again, I think the Minister is nodding his head, so perhaps I could put into the record that he is prepared to consult with the network of experts about how to achieve this culture change, even if we cannot go the full way in terms of having “daddy leave” in the legislation. The Minister has been nodding and not shaking his head in response to everything I have said. Does he want to say anything more?
Viscount Younger of Leckie
I will just confirm that, as part of the review, these issues will be looked at. It is extremely helpful to have the input and the views from the Nordic countries. I suspect that officials are already looking at that but it is helpful to be nudged in the right direction. We will certainly be looking at this in addition to the other aspects of the review.
Baroness Lister of Burtersett
My Lords, I thank the Minister, but we do not want to wait for the review in 2017-18 before steps are taken to try to achieve this culture change. The culture change needs to be achieved alongside the introduction of shared parental leave. Again, I hope that a commitment will be made to thinking now about how to make that change, rather than waiting for a formal review. Unless the Minister has anything else he wants to add on this point, I will withdraw the amendment.
Viscount Younger of Leckie
I rise only to say to the noble Baroness that I will be happy to continue these discussions with her. I stated earlier that I have not made a commitment to come back before 2018 and I would not want to do that today. Clearly, it is in everyone’s interests to make this work, and I have already said that we need more time than the noble Baroness has indicated in her remarks to ensure that the review comes through. However, we are happy to commit to consulting expert organisations both at home and abroad on how to achieve the culture change, which is something that I alluded to earlier.
Baroness Lister of Burtersett
I am grateful to the noble Viscount and for the constructive way in which he has engaged in this debate. On that basis, I beg leave to withdraw the amendment.
Lord Touhig
“(za) in subsection (2) at the end there is inserted “for each child born as a result of the pregnancy in addition to the entitlement to allow the Secretary of State to regulate for additional maternity leave under section 73;”
Lord Touhig
My Lords, Amendments 266D and 266E deal with multiple births. Amendment 266D seeks to allow additional leave and Amendment 266E seeks to allow additional maternity pay, both in proportion to the number of births.
I believe that these amendments are necessary due to the intense additional pressures that parents of multiple births face over those of single births. As a grandfather of twins, I can certainly testify to the truth of that. Currently both groups receive the same entitlements to pay and leave. Maternal stays during birth admissions are 60% to 70% longer for multiple births than single births. Even prior to birth, expectant mothers of multiple births are six times more likely to be admitted into hospital and more than twice as likely to be admitted into intensive care as expectant mothers of single babies.
In addition, twins are 10 times more likely to be admitted to neonatal special care units; 44% of twins and 91% of triplets are born prematurely and spend time in neonatal care. On average, parents of multiple births spend a larger proportion of their maternity and paternity leave in neonatal units, and both mothers and children are more likely to face serious health complications. All this reduces the amount of time that parents have to bond with their children and settle into parental life. They have less time to do what parents of single children have to do, even though they have more children to do it with. It is an alarming fact that 20% of mothers of multiple births suffer from postnatal depression, double the proportion of mothers of single children.
Parents of multiple births do not merely face additional emotional and health issues but financial ones. They are far more likely to experience economic hardship in the first 18 months of their children’s lives than parents of a single child. A report published this year by the Twins and Multiple Births Association, titled Multiple Births Parents’ Experience of Maternity and Paternity Leave, revealed that 61% of respondents did not have enough maternity and paternity pay to cover the cost of their leave. In order to get by, 32% stated that they put money on their credit card and they could not pay it off in full at the end of the month. More than half the respondents built up debt and a quarter built up debt of more than £2,000.
It is abundantly clear that parents of multiple births face very real additional challenges compared to their peers. Nevertheless, the current system treats both groups in the same manner. These amendments seek to introduce an element of responsiveness within the system to the very real difficulties faced by those who experience multiple births, in order to create a modern system of maternity leave.
I hope that the Minister will also consider taking prematurity into account in maternity leave legislation. It could be achieved by simply using “babies expected” rather than their actual due date when calculating maternity leave. I hope he will respond to that. I beg to move.
Lord Stevenson of Balmacara
My Lords, this is a long group, with a large number of amendments. It breaks into two parts. As I listened to my noble friend Lord Touhig’s very eloquent contribution on the question of multiple births, I wondered whether it might have been better to have a separate debate on each of them because the points he makes are very interesting and we do not want to lose them in consideration of other areas. I will plough on and hope that the Minister will deal with this group of amendments in two parts, even though I will be mixing them up in what I say.
The amendments in my name in this group remove the limit on fathers’ or secondary adoptive parents’ time off to attend antenatal appointments, which is currently restricted to two occasions of six and a half hours each. Amendments 267F and 267H introduce an alternative of “reasonable” time off for fathers or secondary adoptive parents. Amendment 267K proposes that additional time off should be provided for fathers or secondary adoptive parents where the pregnancy is of twins or multiple births, so in that sense it reaches out to the points that my noble friend Lord Touhig was making.
The introduction of time off for fathers and adoptive or surrogate parents to attend antenatal appointments is very welcome. However, the Bill not only limits the unpaid time off to just two appointments but prescribes the maximum amount of time that fathers can spend away from work to six and a half hours per appointment. The time limits should be determined by regulations—if at all—and should not be in the Bill.
I know it is a rule of thumb that Governments try to take Henry VIII powers whenever they can in legislation and Oppositions traditionally oppose them but I am afraid I am turning the cart round this time. I think the Government are being too detailed here. This area requires a sensitive regulatory approach; for example, the amount of time you need to go to an antenatal appointment largely reflects the complexity of the pregnancy and, indeed, whether it is a single or multiple pregnancy. If it is multiple, we know that that requires more scans. Having the time to do that is not just about the forthcoming child but is a chance for the other parent to be involved in looking after existing children.
We have a complicated situation here. We think it would be more sensible to try to find a formulation—which we have tried to set out in the amendments but we quite accept might need to be refined—under which fathers and secondary adoptive parents are allowed reasonable time off rather than only two appointments. After all, it is the case already that pregnant women are entitled to reasonable and paid time off to attend antenatal appointments, so we are looking for a bit of symmetry in that.
When we were having our second child, we had a rather complicated pregnancy, which took a lot of time, not just in travel to and from hospital but in the hospital and waiting times. I have personal experience of this and I understand the complications. I was lucky in that I was in charge of my own time and I could take the time off, but I recognise that if I had been responsible to another employer it might well have been difficult to get the sort of time that I felt was important to spend with my partner. I have a personal interest in that but it is not the determinant of my thinking. There is a broader issue here that the regulations would be a better place to do that.
I know that there will be arguments about the cost of absence and that employers may feel that, if nothing is put down, employees will take “sickies” and try to take more time than is required, but pregnancy is a complicated time. We should accept that there may be some rough edges to what one might want to do here, but the Government should try not to overspecify something that, by its very nature, will be more complicated and more reflective of the needs of the individuals concerned. I hope that these points will be taken into account.
Viscount Younger of Leckie
My Lords, I thank noble Lords for raising these important issues. Like the noble Lord, Lord Stevenson, I shall deal with the amendments in two parts.
I shall speak, first, about antenatal appointments and the amendments tabled by the noble Lord, Lord Stevenson, and my noble friend Lady Brinton. The Government wish to encourage the involvement of fathers and partners in pregnancy from the very earliest stages. Attendance at antenatal appointments forms a key part of this involvement. Research demonstrates that the greater the involvement of the father in the pregnancy, the more likely he is to remain an active father when the child is growing up.
Antenatal appointments are essential in all pregnancies to care for mother and baby. In cases where there are complications, they are particularly important. Complications during pregnancy may be associated with specific circumstances such as multiple pregnancies or existing health conditions.
Any pregnancy, however, can develop complications. This can happen at any stage and is always distressing for the parents involved. It is also likely to mean that the pregnant woman will need to attend additional antenatal appointments, often at short notice. Many fathers will wish to accompany their partners to these appointments to give practical and moral support. The Government wish to encourage them to do so.
Fathers and partners currently have no statutory right to time off to accompany their partner to an antenatal appointment. The changes that the Government are making in this Bill will enable all fathers who are employees or agency workers to take time off to attend antenatal appointments on two occasions. Equivalent provisions are also being introduced for adopters and certain intended parents in surrogacy arrangements. This is a significant step forward. It is important to emphasise that this provision is intended to provide a minimum standard to enable all fathers to take some time off to attend antenatal appointments with their partner.
Sixty-seven per cent of fathers currently take time off to attend antenatal appointments. Some are able to come to an informal arrangement with their employer; others may, for example, take annual leave or attend the appointment in the morning and make up time later in the afternoon. It is the Government’s hope that this right will encourage more fathers to take time off in addition to the time allowed.
The right to time off is capped at six-and-a-half hours per appointment. The Government want the amount of time off to which an employee is entitled to be reasonable to attend an appointment in their home area. Six-and-a-half hours represents half of the maximum working day under the terms of the working time directive. It is important to have a cap in order to be clear about what the maximum entitlement is and to avoid an employer having to go through a bureaucratic process to determine what is reasonable in the circumstances of their employee.
The introduction of this entitlement should help to create a culture change that makes more commonplace fathers taking time off to attend antenatal appointments. In turn, this will mean that more employers accommodate provisions beyond the statutory minimum. The impact of these provisions will be reviewed alongside the package of reforms in this Bill that introduce shared parental leave.
Lord Stevenson of Balmacara
I am grateful to the Minister for giving way. I did not detect the softening that I was hoping for in that response. Is the Minister really saying that a 6.5-hour standard for attending appointments will be in the Bill? Where does that place people who live in the Highlands of Scotland or remote parts of Wales, whose hospital will be several hours’ journey there and back? It seems ridiculous to specify something which the Government must know could not possibly be the standard applied in certain areas of the country.
Viscount Younger of Leckie
Of course, the noble Lord makes a fair point but this is the minimum requirement that is laid out. We feel it is fair that this should be done on the case of the maximum entitlement. There is every hope, particularly for those employees who work in the Highlands, for example, that the employer will take a reasonable view and will allow more time off if necessary, but we feel that six and a half hours is pretty reasonable.
I turn to the amendments tabled by the noble Lord, Lord Touhig. These relate to additional maternity provision for mothers who have multiple births. The early months after the birth of a child are often a joyful and exciting time, but I think everyone in this Committee would agree that they can also place great demands on parents. These demands are amplified when there is not just one new baby to care for, but two or more. Straightforward tasks such as feeding, changing nappies or leaving the house can pose enormous challenges. Multiple pregnancies often result in premature births, bringing additional health complications for the babies and stress for the parents.
Financial pressures on families with more than one baby increase as well. Having a baby is expensive, but when the costs double or triple it can be very daunting for the individuals involved. I can understand the desire of the noble Lord, Lord Touhig, to ensure that parents who have multiple children from the same pregnancy receive support at this challenging time. I applaud the fact that he produced some interesting statistics to support his comments. It is important, however, to bear in mind that the period of maternity leave to which women are entitled in Great Britain is one of the longest in the world. The purpose of this leave is to enable the mother to recover from birth and to bond with her new baby or, in the case of a multiple birth, her new babies. The amount of time off work that mothers take will vary depending on the needs and wishes of the individual.
The current maternity leave entitlement is 52 weeks per pregnancy, to which all employed women are entitled. The Government believe that this leave entitlement allows all women sufficient time to recover from all birth circumstances and care and bond with the baby or babies prior to returning to work. The vast majority of mothers choose to return to work before the end of the maternity leave period. Eligible mothers are also entitled to up to 39 weeks of statutory maternity pay or maternity allowance. Statutory maternity pay is paid at 90% of earnings for the first six weeks of maternity leave, and at the lesser of 90% of salary or £136.78 per week for the subsequent 33 weeks. Maternity allowance is paid at the lesser of 90% of earnings or the flat rate of £136.78 for the full 39 weeks. As with statutory maternity leave, this entitlement is per pregnancy rather than per child born.
Multiple babies will mean additional expenditure for families. It is important to emphasise, however, that statutory maternity pay and maternity allowance are not intended to go towards the additional costs of new babies. They are intended to provide a measure of earnings replacement to enable the mother to be absent from the workplace on maternity leave. The financial needs of different families will vary. The level of a mother’s income while she is absent from the workplace may also depend on contractual pay enhancements that are available to many women for part or, in some cases, all of their maternity leave. The eligibility of an individual for these statutory payments is underpinned by their labour market attachment and their relationship with an individual employer. The Government do not therefore consider it appropriate to link the amount of pay available with regards to any statutory pay following birth or adoption to the number of children in a pregnancy or adoption arrangement. I hope that noble Lords are reassured by this explanation and ask the noble Lord to withdraw the amendment.
Lord Touhig
My Lords, we have had a series of very good debates this afternoon with a listening Minister, although I fear that he has stopped listening in this debate. I am encouraged by some of the things he has said but it is pretty clear that the Government will make no movement whatever on my two amendments. We may need to return to this issue on Report but, for the time being, I beg leave to withdraw the amendment.
Baroness Massey of Darwen
“Statutory rights to leave and pay of prospective adopters with whom looked after children are placed, special guardians and family and friends carers
(1) In section 75A of the Employment Rights Act 1996 (ordinary adoption leave), after subsection (1) there is inserted—
“(1A) The conditions that may be prescribed under subsection (1) include conditions as to—
(a) being a local authority foster parent;(b) being approved as a prospective adopter;(c) being notified by a local authority in England that a child is to be, or is expected to be, placed with the employee under section 22C of the Children Act 1989;(d) becoming a special guardian under section 14A of the Children Act 1989;(e) becoming a family and friends carer in prescribed circumstances.” (2) In section 75B of the Employment Rights Act 1996 (additional adoption leave), after subsection (1) there is inserted—
“(1A) The conditions that may be prescribed under subsection (1) include conditions as to—
(a) becoming a special guardian under section 14A of the Children Act 1989;(b) becoming a family and friends carer in prescribed circumstances.”(3) In section 80B of the Employment Rights Act 1996 (entitlement to ordinary paternity leave: adoption)—
(a) in subsection (5), after paragraph (a) there is inserted—“(aa) make provision excluding the right to be absent on leave under this section in the case of an employee who, by virtue of provision under subsection (6A), has already exercised a right to be absent on leave under this section in connection with the same child;”;(b) after subsection (6) there is inserted—“(6A) Regulations under subsection (1) shall include provision for leave in respect of a child—
(a) placed, or expected to be placed, under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter;(b) for whom a special guardian has been appointed under section 14A of the Children Act 1989; (c) placed in a family and friends care arrangement in prescribed circumstances.(6B) This section has effect in relation to regulations made by virtue of subsection (6A) as if—
(a) references to being placed for adoption were references to being placed under section 22C of the Children Act 1989 with a local authority foster parent who has been approved as a prospective adopter or to being placed with a special guardian under section 14A of the Children Act 1989 or to being placed in a family and friends care arrangement in prescribed circumstances;(b) references to placement for adoption were references to placement under section 22C or section 14A with such a person or to placement with a family and friends carer in prescribed circumstances;(c) paragraph (aa) of subsection (5) were omitted.”(4) In section 171ZB of the Social Security Contributions and Benefits Act 1992 (entitlement to ordinary statutory paternity pay: adoption), after subsection (7) there is inserted—
“(8) This section has effect in a case involving a child placed under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter, or placed with a special guardian under section 14A of the Children Act 1989 or placed in a family and friends care arrangement in prescribed circumstances, with the following modifications—
(a) the references in subsection (2) to a child being placed for adoption under the law of any part of the United Kingdom are to be treated as references to a child being placed under section 22C in that manner or to being placed with a special guardian under section 14A or to being placed in a family and friends care arrangement in prescribed circumstances;(b) the reference in subsection (3) to the week in which the adopter is notified of being matched with the child for the purposes of adoption is to be treated as a reference to the week in which the prospective adopter is notified that the child is to be, or is expected to be, placed with the prospective adopter under section 22C or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances;(c) the reference in subsection (6) to placement for adoption is to be treated as a reference to placement under section 22C of section 14A or to placement with a family and friends carer in prescribed circumstances;(d) the definition in subsection (7) is to be treated as if it were a definition of “prospective adopter” or “special guardian” or “family and friends carer in prescribed circumstances”.(9) Where, by virtue of subsection (8), a person becomes entitled to statutory paternity pay in connection with the placement of a child under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances, the person may not become entitled to payments of statutory paternity pay in connection with the placement of the child for adoption.”
(5) In section 171ZE of the Social Security Contributions and Benefits Act 1992 (rate and period of pay), after subsection (11) there is inserted—
“(12) Where statutory paternity pay is payable to a person by virtue of section 171ZB(8), this section has effect as if—
(a) the references in subsections (3)(b) and (10) to placement for adoption were references to placement under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances;(b) the references in subsection (10) to being placed for adoption were references to being placed under section 22C or 14A or to being placed with a family and friends carer in prescribed circumstances.” (6) In section 171ZL of the Social Security Contributions and Benefits Act 1992 (entitlement to statutory adoption pay), after subsection (8) there is inserted—
“(9) This section has effect in a case involving a child who is, or is expected to be, placed under section 22C of the Children Act 1989 by a local authority in England with a local authority foster parent who has been approved as a prospective adopter, or placed with a special guardian under section 14A of the Children Act 1989 or placed in a family and friends care arrangement in prescribed circumstances, with the following modifications—
(a) the references in subsections (2)(a) and (4A)(a) to a child being placed for adoption under the law of any part of the United Kingdom are to be treated as references to a child being placed under section 22C in that manner or to being placed with a special guardian under section 14A or to being placed in a family and friends care arrangement in prescribed circumstances;(b) the reference in subsection (3) to the week in which the person is notified that he has been matched with the child for the purposes of adoption is to be treated as a reference to the week in which the person is notified that the child is to be, or is expected to be, placed with him under section 22C or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances;(c) the references in subsection (4B)(a) to adoption are to be treated as references to placement under section 22C or 14A or placement with a family and friends carer in prescribed circumstances;(d) the reference in subsection (5) to placement, or expected placement, for adoption is to be treated as a reference to placement, or expected placement, under section 22C or 14A or placement with a family and friends carer in prescribed circumstances.(10) Where, by virtue of subsection (9), a person becomes entitled to statutory adoption pay in respect of a child who is, or is expected to be, placed under section 22C or 14A of the Children Act 1989 or placement with a family and friends carer in prescribed circumstances, the person may not become entitled to payments of statutory adoption pay as a result of the child being, or being expected to be, placed for adoption.”
(7) In section 171ZN of the Social Security Contributions and Benefits Act 1992 (rate and period of pay), after subsection (8) there is inserted—
“(9) Where statutory adoption pay is payable to a person by virtue of section 171ZL(9), this section has effect as if the reference in subsection (2E) to the week in which the person is notified that he has been matched with a child for the purposes of adoption were a reference to the week in which the person is notified that a child is to be, or is expected to be, placed with him under section 22C of the Children Act 1989 or the week the special guardian is expected to be appointed or the week the child is expected to be placed in a family and friends care arrangement in prescribed circumstances.
(8) In the Social Security Contributions and Benefits Act 1992—
(a) in section 171ZJ(1), at the appropriate place there is inserted—““local authority” has the same meaning as in the Children Act 1989 (see section 105(1) of that Act);”;
““local authority foster parent” has the same meaning as in the Children Act 1989 (see section 22C(12) of that Act);”;
(b) in section 171ZS(1), at the appropriate place there is inserted—““local authority” has the same meaning as in the Children Act 1989 (see section 105(1) of that Act);”;
““local authority foster parent” has the same meaning as in the Children Act 1989 (see section 22C(12) of that Act);”.”
Baroness Massey of Darwen
My Lords, Amendment 267, in the names of myself and my noble friend Lady Drake, suggests changes to the statutory leave and pay of prospective adopters with whom looked-after children are placed, special guardians and family and friends carers. Insertions are suggested to sections of the Employment Rights Act 1996 and sections of the Social Security Contributions and Benefits Act 1992.
We had a lengthy discussion on support for family and friends carers in Committee on 26 October. I shall summarise a few points from that debate as a background to today’s considerations. An estimated 300,000 children are being raised by relatives and friends. Only an estimated 6% of children who are raised in family and friends care are looked after by the local authority and placed with approved foster carers. Children in kinship care do better in terms of attachment and achievement, but their carers are under severe strain—95% of family and friends carers say so. In the previous debate I called them heroes, and so they are. We are not really addressing the inequalities and unfairness that they face at the moment.
The Kinship Care Alliance attributes this strain to three major factors: kinship carers are not entitled to local authority financial or other support—financial support is discretionary; many kinship carers have to give up jobs to support the children and they have no right to specific services and benefits. Despite guidance to local authorities in 2011 which stated what support they should provide by September 2011, 30% of local authorities do not have a family and friends care policy. Financial costs include the immediate cost of a child coming to live with a carer, the costs of applying for a legal order to provide the child with security and permanence, loss of income and pension rights and, finally, the considerable costs of raising a child.
Children who live with family and friends care have experienced similar adversities to those in the care system or who are adopted, yet foster carers get a national minimum financial allowance and the Government are rightly improving adopters’ rights to a period of paid leave on a par with maternity leave. However, the 95% of family and friends carers who are raising children outside the care system are not entitled to anything in paid leave when they take on the care of children.
The Family Rights Group’s publication Understanding Family and Friends Care, reflecting the latest survey of family and friends carers in 2012, reported that only one in eight of the 327 respondents who answered the question about the effect that becoming a family and friends carer had had, said that they had continued to work as before, and one in nine that their partner had continued to work as before. Indeed, 38% had to give up their job to take on the care of the children—in London the figure was 46%. Overall, the picture which emerged was that carers were likely to have made sacrifices in the workplace in order to care for the kinship children. Very few just carried on working as before. Many decreased their working responsibilities and their income by reducing their hours or stopping work altogether—sometimes, I have to say, at the insistence of social workers.
Children who have been through trauma or tragedy, and who may have multiple needs, require time to settle in with their carers. The carers are often required to attend a number of meetings relating to the care and needs of the children, but the absence of any right to paid leave means that we are forcing many family and friends carers to give up work in order to do right by these children. We are pushing them into a life of dependency on benefits and into severe poverty. Some are grandparent carers who are unable to get back into employment when their grandchildren are older. Some are younger sibling carers who have few qualifications and only a few years in employment when they take on their younger brothers and sisters, but later find it difficult to re-enter the labour market. Research has shown that three-quarters of family and friends carer households face severe financial hardship. I hope that the Government will be able to address these urgent issues, and I beg to move.
Baroness Drake (Lab)
My Lords, I support Amendment 267, which would bring family and friends carers and special guardians in employment within scope for statutory entitlement to pay and leave when taking on the care of a child. The Bill extends the right that adoptive parents have to take ordinary and additional adoptive leave to approved adopters who have looked-after children placed with them. By contrast, the vast majority of family and friends carers who are raising children outside the looked-after system are not currently entitled to even a day of statutory paid leave when they take on the indefinite care of a child. Many have no entitlement beyond a few days’ unpaid emergency leave. That is a public policy that conveys that kinship carers have less value or make a lesser contribution than other carers of children, even though the children they care for often have complex needs. That cannot be right.
The amendment would extend the same employment rights to family and friends carers who have special guardianship orders, and to family and friends carers who take on the care of a child in certain defined circumstances. It would give the Secretary of State the authority to define those circumstances, and would extend the right to additional adoptive leave to family and friends carers and those with guardianship orders, again giving the Secretary of State the authority to define the prescribed circumstances.
There is a stark imbalance in the proposed employment leave entitlements for adoptive and prospective adoptive parents when compared to the lack of entitlements for kinship carers. That is unfair, irrational and inconsistent with the Government’s policy on the welfare and protection of children. It is unfair in that kinship carers voluntarily take on the responsibility, often in very difficult circumstances and at considerable cost to themselves, saving the taxpayer considerable amounts of money and achieving better outcomes for the child than if they had entered the care system. It is irrational in so far as the statutory rights to leave for parents, adopters or prospective adopters have been or are being improved, but no statutory rights are extended to the kinship carers of thousands of our most vulnerable children. It is inconsistent with current welfare policy in that the absence of a statutory right to leave, on taking care of the child, raises the barriers to carers’ continued workforce participation and increases the likelihood that they will become long-term unemployed and dependent on benefits. That undermines participation in the workforce as a route out of poverty for the children and the carer.
During the passage of the Welfare Reform Bill, the Government recognised that family and friends carers make a valuable contribution by caring for vulnerable children, and exempted those carers from work conditionality under the universal credit during the first 12 months of caring for a child. The Government have time-limited that exemption in the expectation that many carers should return to the labour market after a period of adjustment, so why not make provision for a statutory entitlement to leave and reduce the incidence of kinship carers leaving the labour force in the first place?
However, the problems that kinship carers face do not lie only in the requirements of the welfare system, they also suffer from the complete lack of recognition in employment law. The imbalance in their right is inconsistent with the protection of child welfare, in that kinship carers need to take leave to settle the children, who have often been through so much. This often comes after a long period of family crisis; the children can be traumatised and insecure, and they need to know that someone is there for them. That is precisely why social workers often want or require carers to take time out of work. There are also the practical requirements of making appointments with schools, solicitors and social workers, arranging legal orders and so on. Often, the children arrive unexpectedly in just the clothes they are wearing, but there is not even the most modest statutory provision allowing employed carers leave from their employment. Yet kinship care is the most common permanency option for children who cannot live with their birth parents. The same arguments apply to the extension of parental leave to kinship carers as were advanced for the introduction of adoption leave in the Employment Act 2002: the need for time for children to settle with and bond to carers and the advantages of enabling carers to remain in the labour market.
To scope the problem, an estimated 60,000 kinship carers have dropped out of the labour market to bring up children. The reasons for this include the needs of the child, but the fact that they are not entitled to time off increases the likelihood of their leaving the labour market, so contributing to the high proportion of kinship carers living in poverty. Family Rights Group research found that one-third were living on incomes below £350 a week. Grandparents Plus found that 73% of kinship carers were working before the children moved in, but that almost half of those who had been working left their jobs when the children arrived. Some 83% of those who gave up work say that they would have liked to have remained in work, while of those who gave up work just 13% are now back in work. Similarly, a Family Rights Group survey found that 38% of family and friends carers had left their job, lost their job or taken early retirement when they took on the care of the child.
The Bill presents the opportunity to extend parental leave entitlements to kinship carers who take on the indefinite care of a child, and to give them parity with prospective adopters. The majority of family and friends carers are not entitled to even one day of statutory paid leave. That cannot be fair. The arguments for providing a right to leave are equally compelling, whether looked at from the perspective of the carer or of the child.
Baroness Howe of Idlicote
My Lords, I have been reminded by the noble Baroness, Lady Massey, that we have had this discussion in the past. It struck everyone at the time how completely unfair this whole system was. Now that the noble Baroness, Lady Drake, has spelt out so many comparisons, it is, frankly, almost embarrassing to think about the disadvantage that kinship carers suffer when they take on this responsibility and often—most likely, I would say—produce much better results for those children, giving them a likely prospect of a far more fulfilled life than if they had gone into different forms of care.
In supporting what has been said, I would say to the Minister that I would love to hear that this area was going to be looked at hard and, as far as possible, a range of comparable systems would be considered for kinship carers, those coming into care and those who are to be adopted. If he could give us that assurance, or indeed tell us that a lot of this is already in process, that would be very helpful in settling our minds until Report, if nothing else.
Baroness Tyler of Enfield
My Lords, I support the amendment. It has been set out so comprehensively and compellingly that I do not need to add very much. The case seems to be overwhelming that when people who are providing kinship care—often, as has been said, in the most desperate circumstances—agree to step in, often at great personal cost to themselves, it is only right that the state should recognise the hugely valuable contribution they are making.
These children are often in states of great distress and trauma, and for a member of the family to be able to step in and provide some degree of stability is really important. We all know the cost to the public purse of children in care who go, for example, into residential homes—it is huge. The savings that are made by a member of the family stepping forward in this way are considerable. We also know about the very poor outcomes for too many children in care when they emerge at the other end of the system. Kinship carers can make a huge contribution and it is absolutely right that society should acknowledge that. One very important way it could do so would be by extending these statutory employment rights to kinship carers.
Baroness Howarth of Breckland
My Lords, I will speak briefly to make two points. First, as the noble Baroness indicated, this is both a short-term and long-term financial issue. The previous Government and the present one, I fear, have taken the same position, which is that paying kinship carers in the short term would be too expensive. However, as many noble Lords have pointed out, it has tremendous value and advantage in the longer term. I only wish that a Government could, if not introduce the whole package, at least take one step.
I remind noble Lords that the Select Committee on Adoption Legislation, which I was part of, pointed out that there was very little difference in outcomes— indeed there might be better outcomes—for children who were in special guardianship orders compared to those who were adopted. However, we treat those two groups in a totally different way. That is irrational. If we could just make a start with special guardianship, where there is an order and it is quite clear that the care is going to continue, we would feel we were taking a step forward.
Overall, we spend very little these days. The news today is that we are almost unable to meet our commitments to protect children with child protection procedures and that social workers are under tremendous pressure. I notice that the noble Baroness, Lady Massey, glanced at me, because I am a social worker by background, when she said that social workers are actually insisting that people take the time off—of course they are, because, as the noble Baroness pointed out, they have a responsibility to make sure that these children are properly cared for. Most of those social workers would be delighted if they could recommend that they were paid for that. The old Section 1 of the 1963 Act, which used to help with this, has long gone, and there are very few provisions now to help these families get through even the initial difficult times, never mind the longer period of caring for a child who is not their own, with all the pressures that such a child brings.
Being the unlikely founder of the All-Party Parliamentary Group for Grandparents and Extended Kin—which is another story—I am concerned for grandparents, because they have reached a point where they thought life was going to be easier and they were going to be financially secure. However, they then find themselves bringing up children in their family—as they would wish to rather than let anyone else take over the care of the children—and somehow the state does not see it in its purview to give help to these families. With the changes in the benefits system, these families are finding it more and more difficult to survive. Consequently, as noble Lords know, more children will come into care. These situations will break down as families can no longer manage or social services think that it is inappropriate for them to do so.
I am quite sure that these amendments will not be accepted, as they have not been accepted in the past. However, I wish that there could be some thought, and some work undertaken, to see whether there is a step change that can move forward, through the various groups, to make it easier, particularly when a family has a legal order and responsibility for the children concerned.
Viscount Younger of Leckie
My Lords, I welcome this debate on another important issue. As has been said, and as the noble Baroness, Lady Howe, alluded to, the Government recognise the extremely valuable contribution made by family and friends in caring for children who cannot live with their parents. Noble Lords have spoken passionately about this issue today and I am struck by the depth and breadth of expertise on this matter in this Committee.
The noble Baroness, Lady Drake, raised the important issue of kinship carers dropping out of the labour market. I note that the noble Lord, Lord Touhig, is not in his place, but I hope that I can go a little way to restoring my reputation as a listening Minister by saying that we agree that it is important that kinship carers can remain in the labour market. The evidence that we have about this issue is limited, but I hope that noble Lords will be reassured if I explain that we are actively researching this issue. I shall say more about that in a moment.
During the debate on support for family and friend carers, my noble friend Lady Northover described the financial support with which local authorities are encouraged to provide families to help them to cope with the strain that caring for an additional child may put on household budgets.
The type of care arrangement that kinship and friendship carers provide varies a great deal. Some families care for children who need support during a short-term crisis, such as a parental illness. Other individuals take on care of a child on a long-term basis. My noble friend Lady Tyler, and the noble Baronesses, Lady Massey and Lady Drake, highlighted some other examples, including some statistics provided by Grandparents Plus, parents’ rights groups and other groups.
Given the variety of arrangements that exist, the Government believe that it is right to assess the needs of each family at the local level. Local authorities are best placed to establish relationships with these families and appraise their financial needs on an individual basis. This enables them to provide targeted support to the right people at the right time.
Special guardianship orders provide a more formalised and legally secure foundation on which a child can build a permanent relationship with his or her carer. In many cases, the child may already be living with the family when they make an application for a special guardianship order. However, this will not be the case for all families and some may have to adapt quickly to significant changes in circumstances—a point that was made earlier.
Special guardianship orders are an increasingly popular “permanence” option for children. However, they remain a relatively new legal status and special guardians are a group about which the Government have limited data. In particular, there is insufficient information about the way in which special guardians adjust to their new caring arrangements and how this may impact on an individual’s ability to remain in the labour market. I hope that I can reassure the noble Baronesses, Lady Massey and Lady Drake, by saying that we believe that it is essential to understand the issues that are faced by this group in order to ensure that they receive the support that is appropriate to address their needs. For this reason, my department, the Department for Business, Innovation and Skills, will undertake research into kinship and friendship carers and special guardians, and their participation in the labour market. We have already started to scope this, liaising with the Department for Education.
I recognise that research is not the same as support, but it is the first crucial step towards understanding what policy interventions would be most appropriate to meet the needs of these individuals. I hope that this reassures the noble Baroness and I ask her to withdraw her amendment.
Baroness Massey of Darwen
My Lords, I thank the Minister for that response and other speakers for contributing to this short debate. I am delighted to hear that the Minister has instigated research. There is an awful lot of research around already on this issue, so I hope that it will not be too lengthy. A later amendment from my noble friend Lord Stevenson suggests, I think, one year of probing and research. I do not think that we need a year to solve this one. The organisations that we have mentioned already have a wealth of data on the problems, statistics, anecdotes and case studies of family and friends carers. Therefore, I hope that any research will build on the existing research, will be carried out quickly, and that something will be done very quickly for these people who are saving the state lots of money, as has been said.
More importantly, these carers are saving children from disappearing down various plugholes in the system. It is well known that children need stability and love and kinship carers are known to provide this. It is too easy to take a short-term view. Generally, outcomes for children in care are poor—let us face it. They have poor or lower academic achievements, higher involvement in criminal activity and drugs and alcohol and more early pregnancies. This is a sorry story. Family and friends carers are stepping in and trying to mitigate this situation for their grandchildren, nieces and nephews or whoever, often at great cost to themselves, as we have heard. They are saving the state money and contributing to the welfare of children.
We have heard time and again that the Government are sympathetic to these carers. I have also heard time and again that local authorities are encouraged to give support, but that is not statutory support. As I said earlier, 30% of local authorities have no policy on family and friends carers. I agree that there is insufficient information on this and we must understand all the issues, so I appreciate that research will be needed. However, as I say, it must not be lengthy and must not delay help for these family and friends carers who are giving so much to society and the children whom they serve. I beg leave to withdraw the amendment.
Baroness Drake
“Kinship carers’ adjustment leave
(1) A qualifying employee who satisfies prescribed conditions may be absent from work at any time during an adjustment leave period.
(2) An adjustment leave period is a period calculated in accordance with regulations made by the Secretary of State.
(3) The regulations under subsection (2) above shall include provision for determining the extent of an employee’s entitlement to leave under this section but shall secure that where an employee is entitled to leave under this section he is entitled to at least four weeks’ leave, or for a longer period to be prescribed.
(4) An employee who exercises his rights under subsection (1)—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent, (b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and(c) is entitled to return from leave to a job of a prescribed kind.(5) For the purposes of this section, an employee is a qualifying employee if he is a family and friends (kinship) carer looking after a child full-time because the parent(s) is unable to look after the child, in the first 12 months after the child moves in.”
Baroness Drake
My Lords, in moving Amendment 267A, I will speak also to Amendments 267B and 267C.
Amendment 267A proposes a new form of unpaid adjustment leave similar to parental leave—a modest entitlement of a one-off period of at least four weeks for a kinship carer during the first year after a child moves in. Often children arrive without notice and it may be unclear how long the child will be staying or whether it will be a long-term arrangement. However, the children have immediate and complex needs. Friends and kinship carers often lack parental responsibility when children first arrive because it takes time to arrange a legal order. Adjustment leave would meet kinship carers’ urgent need for time to adjust to the upheaval in the children’s lives, apply for a legal order, a residence or special guardianship order to secure the care of the child and attend numerous meetings, and would reduce the prospect of the carer being pushed out of their job as a consequence. The challenges they face were well articulated in the debate on the previous amendment.
Adjustment leave would be available for a kinship carer who can demonstrate that the children cannot live with their parent. A qualifying employee would have to meet prescribed conditions and the adjustment leave period would be calculated in accordance with regulations made by the Secretary of State. While they are seeking to secure the necessary legal orders, kinship carers may not fulfil the prescribed circumstances which the Secretary of State may have already, or may in the future, set for access to other statutory employment rights of leave. A modest period of unpaid adjustment leave would give such carers the urgently needed time to act to protect the child. At the moment they are given little or no support. The law recognises the need for an adjustment period for parents but gives no statutory recognition of any kind to kinship carers and no protection against the breaking of the employment contract when they take such urgent leave to care for the child.
The intent of Amendment 267B is to enable those with caring responsibilities—be they friends, family members or grandparents—for a child, a vulnerable adult or an elderly person to take up to two weeks’ leave per year unpaid in order to deal with pressing caring responsibilities. The amendment would give the Secretary of State the authority to define the prescribed conditions for qualifying employees and the period of leave, subject to an entitlement to two weeks’ leave in a given year. Parents of children are entitled to take up to four weeks’ parental leave a year, up to a total of 18 weeks, but many other carers do not have any statutory entitlement even to unpaid leave for a caring need, with the possible exception of a few days’ emergency leave.
Baroness Massey of Darwen
My Lords, I support my noble friend Lady Drake’s Amendments 267A, 267B and 267C. I will say a word later on Amendment 267BA after my noble friend Lord Stevenson has spoken to his amendment. My noble friend Lady Drake has set out the principles of these amendments comprehensively and I just want to add a few comments.
When children first move into kinship care, the carers and the children need time to settle and adjust to the upheaval in their lives. I know a kinship carer who received three children at midnight because their daughter had died from a drug overdose. That is an upheaval beyond imagination. She said that the children were grieving, she was grieving and they had very little time to do it properly. Children often arrive without notice in these circumstances. For example, a parent may be in hospital or there may be domestic violence or abuse. The proposal is for a period of leave similar to parental leave.
An estimated 60,000 kinship carers have dropped out of the labour market to bring up children. There are many reasons for this, including the high needs of the children and the fact that the carers are not legally entitled to any time off to accommodate the needs of the child, especially at a time of upheaval when everybody is in crisis and needs time to settle down.
Amendment 267 seeks the extension of emergency leave entitlement to grandparents, to enable a grandparent to take reasonable time off work to provide help where a grandchild is ill or to deal with an unexpected event at school, for example a school closure due to poor weather. Some families would prefer a working grandparent to be able to take time off to provide childcare when a child is ill or a school is closed. I—and, I would guess, several people in this room—have certainly taken time off or given up time to look after grandchildren when there has been a crisis in the family.
The amendment seeks to help parents to balance work and their caring responsibilities, and to relieve the pressure on families when a child has a problem. Currently, one in four working families depend on grandparents to provide childcare. Some 70% of all working grandparents say that they look after their grandchildren and 29% of grandparents are working. The impact on employment overall should be minimal as the amendment will spread across different employers the impact of an employee’s absence due to a family emergency, such as a child’s illness, rather than one employer, typically the mother’s, experiencing the full impact.
I was interested that in Denmark, apparently, it is usual when a child is ill for the mother to take the first day off, the father the second and a grandparent the third, which seems very sensible. Again, I support the amendments and I look forward to the Minister’s response.
Baroness Lister of Burtersett
My Lords, I support Amendment 267B, particularly from the perspective of carers for adults, although, of course, I also support it with reference to carers for children. A Carers UK/YouGov poll found that 22% of UK adults had seen their paid work negatively affected as a result of caring, including 2.3 million who had given up work as a result and about 3 million who had reduced their working hours to care at some point in their lives.
Research has demonstrated that the point at which caring begins to have a significant impact on carers’ ability to work is when 20 hours a week or more is provided, with some analysis indicating that the tipping point may be even lower at 10 hours. Without the right support, millions of workers are leaving work to care and the cost of this to individuals, business and the economy is huge. Recently, research by the Personal Social Services Research Unit at the LSE calculated the public expenditure costs of carers leaving paid work at a staggering £1.3 billion a year, based on the cost of carer’s allowance and lost tax revenues. Additional analysis by Age UK indicates that the economic cost rises to £5.3 billion when lost earnings are taken into account. One quarter of working carers report that they feel they receive inadequate support to enable them to combine work and care and only half think that their employer is carer-friendly. The survey of carers found that nearly two-thirds of carers in work have used annual leave to care, while nearly half have done overtime to make up for taking time off to care.
The task and finish group set up by Employers for Carers and the Department of Health states in its final report that,
“the issue of supporting carers to remain in work is not only a problem, but also an economic opportunity. Supporting carers to remain in work can bring considerable benefits to carers themselves, employers and the wider economy”.
This is partly a government publication.
Baroness Howarth of Breckland
My Lords, I simply want to ask a question. During the past Session, we have managed to achieve considerable integration between adult care, the health service and children’s care—looking after children’s carers. Why can the Department for Work and Pensions, or whatever department handles this sort of employment legislation, not also become much more integrated so that the whole package can be assessed appropriately? That may be too great a vision but maybe that should be the road we go along.
Lord Stevenson of Balmacara
My Lords, my amendment, which is part of this group, is rather low-key compared to the sort of debate that we have just had. It seems in vogue, in terms of what has just been said, that we should seek a compromise position that all parties could support in this area. As my noble friend Lady Lister has said, this seems to have all the hallmarks of an irresistible force that is moving forwards. These are pressing and important areas of activity in our social arrangements. They are suffering badly because they have not received the attention they should have done in previous Administrations, including our own, but the benefits of and the opportunities for making something better out of it are so great that the argument surely carries weight and we should be looking very carefully at it.
I do not wish to comment further on that but I make an offer to the Minister: if he would like to see whether a discussion between the parties might help to provide a context in which some of the good will that has been expressed in the Committee today can be taken forward, I would be very happy to participate in it. Obviously, we would need to work out what we were going to do with such an amazing compact, should there be one, but it would at least be a step in the right direction.
Our amendment does not go anywhere near that, except to build on what the Minister mentioned in response to Amendment 267, which was, in his careful phrasing, “a research project” to get some basic material out about this area. Amendment 267BA is looking at a review that would be carried out by the Secretary of State, on the impact of the lack of paid leave on kinship carers and special guardians left in the workplace, so it is narrower. I appeal to the Minister to see in that the opportunity to take another step down this path, which, like my noble friend Lady Lister, I hope is not too long. I hope for a little of his caring and listening mode on this occasion. I thought it was only in response to my noble friend Lady Lister and others that he adopted it, but perhaps this time he could listen to me as well.
Baroness Massey of Darwen
My Lords, I follow my noble friend Lord Stevenson in supporting this attempt to reach a healthy compromise. There is already a great deal of research and investigation into the plight of family and friends who are carers. I hope that that can be built on. There is a meeting with officials, which I think the Minister has set up for next Wednesday, and I hope that any noble Lord here who is concerned about this could get details of that meeting. I hope that at that meeting we could discuss this proposal for research and who will be involved. I hope, too, that, as the noble Baroness, Lady Howarth, has just said, that involvement will be integrated across various streams of various departments.
Viscount Younger of Leckie
My Lords, modern families come in all shapes and sizes, and it is important that we recognise the extremely valuable contribution that is made by many different individuals. I shall address each of these amendments in turn, beginning with Amendment 267BA. This amendment would require the Secretary of State to review the provision for kinship carers and special guardians, as moved a moment ago by the noble Lord, Lord Stevenson. As I have said in, as he put it, a carefully worded, but, I hope, clear response to the previous amendment, the Department for Business, Innovation and Skills will undertake research into kinship and friendship carers and special guardians and their participation in the labour market in order to ensure that support provided by the Government is appropriate to address these people’s needs.
The noble Baroness, Lady Massey, questioned the length of the research in the previous amendment and stated that plenty of research was already available. By way of reassurance—I hope that she takes it in this spirit—I would say that it is important that we take the time to scope the project properly in advance of starting the research. I welcome the input of the organisations mentioned and, indeed, others that might not have been mentioned. I give this commitment: I shall return to this House with further details on the likely timetable on Report and note some further carefully chosen words. The noble Baroness alluded to a meeting with officials that has been arranged. I confirm that it is set for next Wednesday at 11am. The Bill team will provide further details by e-mail about that meeting. I encourage as many people as would like to attend to come.
Turning now to Amendments 267A and 267B regarding adjustment leave for kinship carers and leave for carers, as I am sure noble Lords will agree, carers play a vital role supporting and caring for their children or loved ones, and they reduce the need for state funded care. These points were made with great passion today by a number of noble Lords. These individuals can often struggle to balance their work and caring responsibilities effectively and without support may not be able to stay in work. It is important that we recognise this contribution and provide carers with the support that they need to remain in the workplace. From time to time, carers may need time off to manage emergencies or breakdowns in care. Many kinship and friendship carers also experience a period of adjustment when a child comes to live with them. The noble Baroness, Lady Massey, gave the Committee a rather heartbreaking example of an occasion when a parent died of a drug overdose. If I read her correctly, the child appeared on someone’s doorstep.
Changes in living circumstances can happen suddenly and families may come under great strain to adjust quickly to the caring needs of a child who may be facing many complex issues and emotions. The right to time off for dependants enables them to take time off to make arrangements for their care. Once the child is living with kinship or friendship carers, he or she becomes their dependant, and any carer who is an employee will be entitled to time off. This enables the carer to take a reasonable period of time off work to take the action necessary to deal with specified short-term emergencies, and this is a day one right that is available to all employees. The employee does not necessarily need to give their employer advance notice of their intention to take leave under this provision as long as they inform their employer as soon as is reasonably practicable. This is because emergencies rarely come with notice, and again examples were given earlier in this debate.
The right to time off may not meet the needs of all individuals in all circumstances. Many employers provide additional forms of leave for compassionate reasons to enable employees to deal with sudden and often traumatic changes in circumstances. Caring is often a long-term responsibility. All carers, including kinship and friendship carers, may need to consider long-term changes to do with their changed circumstances. The Government believe that the right support for carers is to allow them to change how they work to better accommodate their caring role on a long-term basis.
Carers are already eligible to make a statutory request to work in a flexible way under the current legislation. However, the extension of the right to request flexible working in Part 8 of this Bill will drive a culture change which should mean that flexible working becomes more widespread and better integrated into standard working practice. My department, the Department for Business, Innovation and Skills, has been working closely with the Department for Work and Pensions and their private sector working group to encourage more employers to consider flexible working practices when they are designing and advertising jobs. They have developed, for example, a strapline to use when advertising jobs: “Happy to talk flexible working”. This should increase the availability of jobs that can be done in a flexible way, thus enabling more carers to remain attached to and re-enter the labour market.
Extending the current right to request to all employees will enable more people, including those who have more informal or infrequent caring responsibilities such as kinship or friendship carers, to retain an attachment to the labour market when they have experienced significant changes in their personal circumstances. The noble Baroness, Lady Drake, raised the issue of supporting grandparents to remain in work when they provide childcare. The Government agree that it is important to support the needs of older people and grandparents, and to help them stay in work, especially when they have caring responsibilities. This has been a key driver behind the extension of the right to request flexible working, and it will help these groups to balance work and care commitments on a long-term, sustainable basis. It will support the informal caring that is often provided by grandparents, about which I will have a few more words to say later.
I turn finally to Amendment 267C regarding emergency time off for grandparents. We have heard many examples of the invaluable practical and emotional support provided by grandparents to their children and grandchildren, an issue raised particularly by the noble Baroness, Lady Drake. I welcome this debate as an opportunity to pay tribute to the vitally important role that grandparents play in supporting families to juggle work and childcare responsibilities.
The issue of emergency time off for dependants was debated during the passage of this Bill in the other place. The Minister for Employment Relations and Consumer Affairs outlined the qualification criteria for this type of time off, and for the benefit of noble Lords I shall do so again here, albeit fairly briefly. This provision is intended to give employees a statutory entitlement to time off work to deal with an emergency involving a dependant. The qualification criteria for this type of time off are deliberately broad, and this is to ensure that any employee on whom a person reasonably relies to make arrangements for the provision of care is able to qualify for this type of time off in circumstances where there has been an unexpected disruption or termination of care arrangements. It is important to emphasise that the legislation enables all employee grandparents who are relied on to make arrangements for the provision of care for their grandchildren to qualify for this time off in such circumstances.
Baroness Drake
I thank noble Lords who have spoken in this debate. I thank the Minister for his response, and I shall respond to some of his points. Obviously, it is welcome that the Government are looking at the issue of kinship carers and employment but, like my noble friend Lady Massey, I have to ask how long that will take. The issue is now pressing and urgent, and it is not a new one; the question of the lack of protection for this group of people was well aired during the Welfare Reform Bill.
I hear what the Minister says about scoping the project, but a lot of work was done by the noble Lord, Lord Freud, and the DWP team to identify this community and the challenges that it faces. Hopefully, that is banked and does not have to be repeated. The issue here is that, at the moment, maybe with the exception of getting a bit of emergency leave, the statutory provisions in this country do not protect individuals by giving them a statutory right to leave and an ability to keep their employment contract in place. It is welcome that the Government are going to return with a likely timetable before Report.
Most noble Lords here are familiar with the emergency leave provisions, but those do not address the kind of fundamental challenges that kinship carers face when they take on a child at very short notice, with all the complexity and problems that go with that, and subsequently become confirmed as the permanent long-term carer of that child. It is a little drop of a contribution and does not really start to tackle the fundamental challenges that many of them face. It still does not address the glaring imbalance between the support provided to prospective adopters, parents and surrogate parents when it comes to statutory protections. They are the Cinderellas and, consequently, so are the children they look after.
Flexible working proposals are clearly welcome. They are very important in allowing carers to balance their relationship with whoever they are caring for and to stay in work on an ongoing basis, but they do not of themselves provide the statutory right to leave, which is the essential issue for many people when they are either facing a pressing caring need or taking on a child in urgent circumstances. The flexible working arrangements do not necessarily address the immediate problem of the requirement for leave while allowing the employment contract to stay in place.
I hear what the noble Viscount says about grandparents. I have read the statutory provisions and the guidance—I must go and read them again. I worry that the phrase “reasonably relies” will have to be defined by case law. Therefore, there is a hurdle that grandparents have to first meet before they can say, “I will be the one that goes and helps the child. I am a person who that child reasonably relies upon for care in an emergency situation”. If the Government want grandparents to be supported and enabled to take emergency leave to provide that support for families, I struggle to see why one does not simply deal with it straightaway by a simple, modest little provision that would remove any ambiguity on that point.
The issue of statutory leave for kinship carers is not going to go away. So many people feel so strongly about it, and I am sure we will come back to it. I beg leave to withdraw my amendment.
Lord Knight of Weymouth
“Parental bereavement leave
In the Employment Rights Act 1996, after section 57A there is inserted—“57AA Parental bereavement leave
(1) The Secretary of State must make regulations entitling an employee who satisfies specified conditions—
(a) as to duration of employment, and(b) as to relationship with a child,to be absent from work on leave under this section in consequence of the death of a child.(2) Regulations under subsection (1) shall secure that, where an employee has a right to leave under this section, he or she is entitled to a leave period of at least 2 weeks.
(3) Regulations under subsection (1) shall secure that an employee who exercises his or her right under subsection (1)—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he or she had not been absent,(b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and(c) is entitled to return from leave to a job of a prescribed kind.(4) In subsection (3)(a) “terms and conditions of employment” includes—
(a) matters connected with an employee’s employment whether or not they arise under his or her contract of employment; and(b) terms and conditions about remuneration.””
Lord Knight of Weymouth (Lab)
My Lords, Amendment 267D, which would add a new clause after Clause 97, is about parental bereavement leave. The amendment seeks to give the Secretary of State a power to make regulations entitling an employee to be absent from work on leave as a consequence of the death of their child.
It may come as a surprise to many that there is no statutory entitlement to such bereavement leave, but that is the reality. The other elements of the proposed new clause are there for your Lordships to read. The current legal position, for those who do not know it, is that at present parents may be entitled to time off for dependants—there is a legal right to unpaid leave to cope with family emergencies, to which some reference has been made. There is no upper limit to the amount of time specified. It should be “reasonable” and should be only the amount that is sufficient to deal with the situation. The government guidance says:
“There is no set amount of time allowed to deal with an unexpected event involving a dependant—it will vary depending on what the event is … In most cases, one or two days should be sufficient to deal with the problem”.
Clearly the bereavement of a child is a problem that would need more than one or two days. Everyone’s grief is different, so quantifying this is slightly challenging, but I contend that we need to give everyone some certainty that they are entitled to a minimum amount of leave on a paid basis. In my mind, that is two weeks, which I will talk about in a moment.
Having said all that, I also want to pay tribute to Lucy Herd, who I first met two and a half years ago when recording an edition of “The Politics Show” in the BBC’s Southampton studio—occasionally, appearing on these shows does some good. Lucy, who I talked about in my contribution at Second Reading, suffered the loss of her child, Jack, in an accident in the garden. He drowned in their garden pond. Her husband, who at the time was in Australia, was given the opportunity to fly back. Obviously it takes a while to fly from Australia to Cumbria, but he was not able to stay around for very long because his employer needed him back at work within a week. As a result of that experience, Lucy started campaigning, supported by the Lullaby Trust, Bliss, Cruse, Child Bereavement UK, the Childhood Bereavement Network and others. She has discovered that hers is not an isolated example of people suffering from unsympathetic employers. I think the vast majority of employers are reasonable, but clearly there are examples where some are not. I am grateful to the Minister for meeting Lucy last month to discuss this, and to my noble friend Lord Stevenson for accompanying her. Unfortunately, because of my caring responsibilities—I listened to the debate on the previous amendment with care—I was not able to attend.
Recently, in the course of her campaign, Lucy put up a petition on the Change.org site. I looked through the comments that people are allowed to leave as they sign these petitions. There are many moving comments, two of which really stood out as examples that demonstrate that this is not an isolated case. The first was from Karen from Birmingham, who said:
“I got only 6 days compassionate leave when my 6 year old daughter died. A day for every year she lived. Disgusting! And that was the ‘caring’ NHS!”.
The NHS was her employer. Also from Birmingham was Ian, who said:
“I lost my daughter Megan on the 13th September 2010. She had a brain tumour. The work (the Queen Elizabeth Hospital Birmingham) gave me 6 days companionate leave which was good I thought then told me to go off sick until my grieving eased. When I returned 4 weeks later I was called to a meeting with my manager and the personnel department and given a written notice for being off after my daughter’s death”.
That is how in some cases the NHS might treat people who are suffering in this circumstance.
I contend that this is not an isolated case. I was pleased today, following Prime Minister’s Questions in the other place, to hear that this was raised by Tom Harris MP, who asked the Prime Minister whether or not he would commit to amending the Employment Rights Act 1996 to at last give British parents the legal right, and the time, to grieve. I was pleased at the Prime Minister’s response:
“The hon. Gentleman raises an important issue, and I am happy to look at that, having suffered that experience myself. As a Member of Parliament, it is possible to take a little bit of time to stand back and come to terms with what has happened, because colleagues and the people who help us are ready to step in and do what they can. He has raised an important point; let me look at it and get back to him”.
So the Prime Minister gives us some encouragement. As I understand it, he took two weeks’ bereavement leave. In informal conversations, the CBI, which does not have a formal policy on this, has suggested that two weeks’ paid leave might be reasonable.
Bliss, the charity that campaigns,
“for babies born too soon, too small, too sick”,
as its strapline says, has also been in touch and is strongly supportive of this amendment. Many people think that for children who are stillborn, who die in a cot death or who die early on in their lives, maternity leave can be used, so that this is not such an issue. Bliss has said to me that there are emotional reasons why parents might feel more comfortable taking bereavement leave rather than maternity or paternity leave, because it is a focused recognition of their loss. Removed from the emotional associations of parental leave without a child, they can feel more able to take the leave that they need. Ensuring that they are entitled to bereavement leave would also help them, when dealing with employers and other outside agencies, to be clear about their situation and ensure that they get the appropriate support. Although Bliss has sent me some bad examples, it has also sent me some very good examples of how employers can work sympathetically with people who have been through this extraordinary trauma.
Baroness Brinton
My Lords, it cannot be right that it is a complete lottery for a grieving parent, probably in deep shock, in being entirely reliant on the good will of their employer. I shall give a slightly different example from the one given just now by the noble Lord, Lord Knight, and focus on an extended illness of a child. Jane, a junior manager whom I know, had a three year-old with leukaemia. The charity she worked for believed itself to be a caring and reasonable organisation, but the head of the charity objected to allowing further compassionate leave as the child was dying or when the child died, nor did they want to give leave to prepare for the funeral. They said that the parent should take unpaid leave, having used up her annual leave to be with her child in hospital earlier in the year.
It took a little while for this charity to be persuaded that this was not the appropriate course and, some years on, as a result of the organisation changing its view, the junior manager, Jane, is still there. She found support from friends and colleagues absolutely vital, both in the time immediately after the bereavement and later when she returned to work. What the family really needed after the death was time—time to prepare for the funeral, time to help other children in the family to understand and time to prepare for a return to an ordinary working life after such an extraordinary event.
I think, despite the story, that this manager was lucky. At the very least we need guidelines for employers, but I have sympathy with the amendment of the noble Lord, Lord Knight. As he has outlined, the costs are not too great either. Fortunately, losing a child is rare, so neither employers nor the Exchequer need worry that this will be a great cost. Also, as important as the humanitarian and caring approach is, parental bereavement leave is likely to help parents settle back into work, which in the long run will help both their employer and the state.
Lord Stevenson of Balmacara
My Lords, it is very difficult to follow the well presented case that has been made for action in this area, but I want to spend two seconds paying tribute to Lucy Herd, who is in the audience today. I was privileged to accompany her when she came to see the Minister and the Bill team and very bravely went through some of the things that had happened to her in her life and how she had coped with them. One wonders whether people really can dig so deep, and yet that is what she did; she turned the tragedy of the death of her deeply loved son, Jack, into a campaign that she is still waging and which we have heard about from my noble friend Lord Knight.
This situation cannot be right. We need to do better than we currently do as a society that says it cares about these sorts of issues. There is clearly a cost, but there are also other things that could be done at least to open the situation for discussion. If this happens to you or to your nearest and dearest, you should not then find during the trauma of what is happening that the rules are so adverse and difficult that you do not know where you stand in terms of your relationship to your employer or to anyone else or their agencies. Given the complications of what would happen and the timescales involved—because if there are inquests and other things they will span over a long period—this situation is clearly unstable and has to be resolved. I hope that the Minister will be able to help us
Baroness Howarth of Breckland
My Lords, I shall be very brief because I know that the noble Lord, Lord Knight, should be speaking elsewhere at this minute, I believe.
Baroness Howarth of Breckland
I support the amendment. I work with an organisation for children who are born with half a heart. Some of them therefore die but, luckily, more live now than did in the past. The variety of responses from employers to those bereaved families is extraordinary; I shall not go into examples because of the timeframe. The Minister might well say that we need a change in culture, as indeed we do, but one way of achieving that is by having something like this on the statute book. I therefore support the noble Lord.
Viscount Younger of Leckie
My Lords, this has been an important debate on a difficult and moving issue. I am pleased that the issue was raised at Prime Minister’s Questions by Tom Harris MP, as the noble Lord, Lord Knight, mentioned.
The death of a child is an event that no parent should have to experience and it is distressing to hear that some people are not given the time off work that they need. I was privileged recently to meet Lucy Herd, whose experience following the death of her son, Jack, was outlined so eloquently by the noble Lord, Lord Knight of Weymouth, at Second Reading and today. I found her story extremely moving and was greatly saddened to hear that her partner had not been able to take the time off that he needed to be at home with his family after his son had passed away.
The majority of employers respond to such an event with compassion and understanding, offering their employees the support that they need to take time off and to begin to deal with the consequences of the tragic event. I am pleased that the noble Lord, Lord Knight, recognises this. However, I accept that this is not the case for all parents. Even if such refusals of time off are very rare, they are naturally extremely upsetting for the individuals involved. I emphasise that an employer who does not enable a parent to take time off in order to take action that is necessary in consequence of the death of a child is acting unlawfully. The law is clear that the entitlement to emergency time off for dependants enables parents to take time off to take necessary action following the death of a child. The noble Lord, Lord Knight, raised the issue of the guidance on time off for dependants, which states that one or two days is sufficient. I reassure him that, as I mentioned in my response to the previous debate, we have recently amended the guidance to make it clear that the entitlement is to a reasonable amount of time off.
When a child dies, many processes need to be completed. These would be complicated and distressing at the best of times. I am sure that when a parent is trying to deal with shock and grief following the death of their child, this can be extremely challenging. It is right that parents are able to take time off to deal with these arrangements, and the law clearly provides for that. There is, however, no legal entitlement to statutory time off to grieve. Grief is an extremely personal issue and affects people in very different ways and at different times. For some people, returning to work immediately after a death is a distraction from difficulties at home. Others may need time off at a later date. Parents are best placed to understand their individual needs, and good employers will respond to requests made by their employees in the most appropriate and sensitive way. It would not be possible to legislate to accommodate the varied needs of individuals.
Research conducted by the Chartered Institute of Personnel and Development demonstrates that many companies have a policy in place for enabling employees to take time off for special and compassionate leave. In addition to leave available as a matter of policy, further time off may often be taken at the discretion of the line manager. Organisations that do not have a policy in place may find it challenging to meet the needs of bereaved employees at what we can all agree is a particularly difficult time. This may be compounded by a lack of understanding about the different religious beliefs and practices of their employees, which often influence grieving and funeral arrangements.
The Government are committed to giving employers the tools and support that they need in all aspects of their relationships with their employees. There is a clear need for guidance to support employers to develop company policies or approaches for time off for bereaved employees. The Government are currently exploring the best way to do this and will bring forward a concrete proposal shortly. I am pleased to announce that the timetable will be available on Report and we can share our approach with the House then.
I am grateful to the noble Lord, Lord Knight of Weymouth, for bringing this important matter to the attention of the Committee. I hope that he and indeed Lucy Herd are reassured by the commitment to bring forward guidance. In the mean time, I ask him to withdraw his amendment.
Lord Knight of Weymouth
My Lords, I am grateful to everyone who has spoken in this brief debate, and to the Minister for the sensitive way in which he has responded. We can all agree on what we think employers should do. We can agree that employers should have a policy so that, if these tragic things were to happen to a member of staff, they would have tried to anticipate how best to deal with it. We can agree that parents are best placed to make some of those judgments for themselves. However, “reasonable” has a very wide interpretation. We should use this opportunity to narrow that interpretation. I am therefore grateful to the Minister for announcing that he will bring forward concrete proposals about a timetable on Report. We shall certainly return to this issue then, in part to allow him to do so. In the mean time, if he wants to work with me on his own amendment then I would certainly wish to do that.
I remind him that this amendment seeks to give him powers. He could then use his mechanism of a concrete proposal and a timetable to work out how he should consult best to use those powers. Between now and Report, working with my friend Tom Harris in the other place, we shall liaise with the Prime Minister’s office to see how he reflects on this issue. I hope that we can come away with as happy a result out of these sorts of tragic circumstances as possible. I beg leave to withdraw the amendment.
“Review of the provisions of this Part
(1) The Secretary of State must from time to time—
(a) carry out a review of the provisions under this Part;(b) set out the conclusions of the review in a report; and(c) publish and lay a copy of the report before both Houses of Parliament. (2) The report must in particular—
(a) set out the objectives intended to be achieved by this Part including, the objective of encouraging fathers to share in caring for their children;(b) assess the extent to which these objectives are achieved for all families including those with premature or multiple births; and(c) assess, having regard to the objectives set out in paragraph (a)—(i) the number of families having access to the provisions under this Part and whether this could be increased;(ii) whether the amount of paid leave available to fathers independently of any shared parental leave arrangements is suitable;(iii) whether and how shared parental leave could be taken on a part time basis.(3) The first report under subsection (1) must be published before the end of three years beginning with the day on which this Part comes into force.”
Lord Stevenson of Balmacara
My Lords, in speaking to Amendment 267E and also Amendment 268A, I can be brief because the ground we have covered today has been leading up to a number of the points that I would have made if I had had more time and needed to break new ground. The essence of much of what we have heard from the Minister is that the spirit is willing but the flesh is weak. Often, as I anticipated in my opening remarks, he accepts the arguments for the direction in which we want to travel but he does not feel that the economic circumstances or alternatively the particularities of the individual point are absolutely in tune with the willingness of the Government to move on the point. I am not sure that metaphor will read well in Hansard but you will understand where I am trying to get to. This amendment therefore provides an opportunity for the Government to sign on to what we hope would be a narrowly focused and specific review, not general but tied to the various pinch points that we have encountered in our journey through these amendments today.
For example on the question of paternity pay, could we have a review that picked up the particularity of the point that was made in another place? The Minister’s counterpart in the other place said that the although the powers to allow the extension to paid paternity leave would be in the Bill, there would be a delay in making the extension until flexible parental leave had been fully embedded and we could assess the impact on shared parenting. Okay, let the review assess both whether parental leave has been fully embedded and the impact on shared parenting, tying it in to that arrangement. The question would follow naturally for the review as to whether the objective of encouraging more fathers to take leave had worked, and whether the amount of paid leave available to fathers in their own right was suitable in the light of the objective.
The Government have also said that they will consider making arrangements for working parents who do not meet the qualifying criteria to receive statutory payments, but this provision could not be introduced before 2018 to allow time for development and—a very important point—to ensure that it interacts appropriately with the new universal credit system. As we all know, the new universal credit system is not moving along at quite the pace that its originators would perhaps wish, so that may impact on the timing of the review, but I hope that it will not. Again, it would be appropriate to tie this review in to those things.
There are a number of particularities within the debate that we have had today which I offer to the Minister as being exemplars of the reasons to do a targeted review so that we can continue the sort of debates that we have been having here. We have a joint purpose of trying to make this legislation better, and it would be greatly informed if we could agree on the format of a review that would answer the questions that we should like answered.
Amendment 268A is slightly different. It is to try to inculcate a change in culture—we have talked about culture a lot in today’s discussions. This is about the move from a labour market scene that is largely dominated by fixed hours and fixed-time contracts to one that would be based on the starting assumption that all employment contracts, in time, could be flexible. If that were to be the case, we would have a situation where a number of the issues that we have raised again in discussing today’s amendments would fall away because the flexibility that would be innate in any job would allow for care concerns, problems around bereavement, issues around changes such as the onset of disability, or the tragedies that happen in families. All those things would be easier to deal with if the basic paradigm for employment were flexibility.
In the sense that this is something where we have a shared purpose that this would be a good thing—indeed, there are many examples I could give of employers that have set out to say that they are filling all future posts on a flexible basis—we would like to see flexible working become the norm, which would allow a number of good things to flow from that. The question is: how would we do that? Could we have a campaign? Could the Government put all posts within government services on a flexible basis? Could they set themselves as a standard bearer for this new approach? The amendment seeks to probe whether there is willingness within the operations of government, and more broadly within the workplace, to get on this bandwagon of moving towards flexible working, which seems to carry with it the seeds of much of what we have discussed today, which we would all find desirable. I beg to move.
Viscount Younger of Leckie
My Lords, the introduction of shared parental leave and the extension of the right to request flexible working are significant steps forward in creating the right environment for modern workplaces. This Government have committed to a policy of regular review of legislation to ensure that laws operate in the way in which they were intended and that they are still relevant. Shared parental leave will be no exception. This review will take place at the earliest opportunity when appropriate data are available. The Government will have to look at the take-up of the policy and the impact it has had on achieving one of the key policy aims of enabling shared parenting in the UK.
I make the commitment in this Committee that the Government will review shared parental leave as soon as appropriate data become available. The review will consider whether shared parental leave has gone far enough to encourage fathers to take a more active role in the care of their children in the early months following birth. As I mentioned earlier, the Government are taking powers in this Bill to allow for the extension of paternity pay, which would enable the Government to extend paternity leave and pay at a later date through secondary legislation.
Alongside reviewing the take-up of shared parental leave by fathers, the review will also look at whether the shared parental leave provisions are supporting all families in the most effective way. This may include parents of multiple births, provisions for self-employed parents and whether shared parental leave and pay can be made to work on a part-time basis.
Amendment 268A would require an annual review of the promotion of flexible working to employers and employees. The right to request flexible working was first introduced in 2003. That right has been very effective in encouraging employers to adopt flexible working practices within their businesses. It also reassures employees that their request for flexible working will be taken seriously.
The Government believe that flexible working should no longer be seen as a concession to families and those with caring responsibility. The benefits of flexible working are experienced by businesses, regardless of why an employee wishes to work flexibly, and I applaud the work that the previous Government did in promoting flexible working. Survey data show that, thanks to the existing right to request flexible working, 90% of employees have access to at least one flexible working arrangement. I hope that this will prompt a certain glow on the face of the noble Lord, Lord Stevenson, opposite.
Many businesses across a variety of sectors recognise the benefits that flexible working can bring. The Government have been working with a number of organisations to promote the benefits of flexible working, and will continue working with businesses to increase the awareness of flexible working arrangements.
Clause 106 requires the Secretary of State to review the effectiveness of changes to flexible working legislation made in the Bill and the extent to which the changes achieve the objectives of the policy. The Government will conduct this review within seven years of the implementation of the flexible working provisions of the Bill. The review will include reviewing the effectiveness of communicating with employers on the benefits of flexible working and make recommendations on whether additional communication of the right is needed.
I recognise that seven years is a longer period than the amendment would require. The legislation on flexible working aims to encourage a cultural change in the way that employers and employees work together. Much reference has been made to the question of culture this afternoon. Experience tells us that cultural change does not happen overnight and certainly not within one year. Culture change is best measured through survey data on how employee behaviour and attitudes are changing. For this reason it is right that any review of flexible working promotion gives the legislation the opportunity to change cultural behaviours before it is reviewed.
Nevertheless, I am grateful to the noble Lord, Lord Stevenson, and the noble Baroness, Lady Lister of Burtersett, for the opportunity to discuss this in Committee. I hope that the commitment for review I have made today will reassure them, and I ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for his comments. The timescale seems incredibly long—seven years is too long—but I will read Hansard carefully and reflect on what he has said, and we will consider our position. In the mean time, I beg leave to withdraw the amendment.
Baroness Pitkeathley
“Welfare of disabled children
(1) The Children Act 1989 is amended as follows.
(2) After section 23A insert—
“23AA Welfare of disabled children
Regulations, subject to approval by resolution of both Houses of Parliament, shall provide for those who care for disabled children to have the same entitlement to a carer’s assessment as young carers and adults caring for adults.””
Baroness Pitkeathley (Lab)
My Lords, I begin by apologising for being such a latecomer to this Bill, over which so many of your Lordships have laboured long and hard. The reason is simply the clash of commitments that we so often have to contend with in your Lordships’ House: I was very involved with the Care Bill, and it is on the subject of the Care Bill that I now rise to speak.
Your Lordships will know that the Care Bill enshrines in legislation many more rights for carers than hitherto. Adult carers featured strongly in the Care Bill and thanks to the Government being willing to listen and amend the Bill—and to what we might call a pincer movement between the Care Bill and the Children and Families Bill—young carers have similarly been well recognised. However, in spite of much effort—much of it focused in this Bill by many noble Lords and noble Baronesses present today—the rights of parent carers remain weaker than those of other carers.
When I moved a similar amendment to the Care Bill, the Minister was kind enough to say that he recognised my concerns and would consider them. The outcome of those considerations was that the proposal would sit better in this Bill and it is for that reason I am moving it today. Briefly, as I know that many noble Lords are familiar with the issues, the purpose is to strengthen the rights of those who care for a disabled child to receive an assessment of their need for support in line with the assessment rights of adults caring for adults and of young carers.
It is vital that the rights of parent carers to assessment and support are not lost in the current legislative reform of carers’ rights and that their rights are enhanced along with those of other carers.
Like other carers, parents of disabled children already have an existing right to request a separate assessment of their own needs, which is in addition to having their needs assessed as part of their child’s assessment under the Children Act 1989. The existing rights for parents to have their needs assessed separately were introduced in three Private Members’ Bills, with which I was involved and which will be familiar to many of your Lordships. The three Acts were taken through Parliament with cross-party support, in recognition of the huge contribution that carers make and of the need to set out clearly in law their rights to receive support for their care and their right to a life outside caring.
Baroness Lister of Burtersett
My Lords, I am pleased to have been able to add my name to the amendment moved by my noble friend and apologise for having jumped the gun on this issue on our 10th day in Committee. The Minister, in replying, said then:
“There is a strong framework of support already in place to support parent carers under the Children Act 1989 and in new provisions in Part 3 of the Bill”.—[Official Report, 11/11/13; col. GC 196.]
However, this is not how carers’ organisations see it. They are arguing for a stronger and more coherent right to an assessment on behalf of parent carers. My noble friend has made the case very well and I will not add much to that, but it is important that we take this opportunity to consolidate and clarify the law for parent carers alongside that of adult carers and young carers.
I find it strange that Mr Timpson in the Commons argued in a Written Answer to Paul Burstow:
“Amending the Children Act 1989 to assess the needs of parent-carers separately from children would risk the needs of the children becoming second to those of their parent”.—[Official Report, Commons, 11/11/13; col. 506W.]
I cannot see the logic of this argument, given the whole-family approach that the Government are quite rightly espousing—and my noble friend has disputed the argument. Could the Minister clarify why the Government believe that this would be the case? Why does it undermine the rights of the children to have a clearer right for their parents when the family is living as a family?
It is important to make sure that parent carers’ entitlement to assessment and support is better understood as well as strengthened. There seems to be confusion over this. Both the Minister’s response when we last discussed this briefly and the Government’s response to the Joint Committee on Human Rights referred only to the Children Act and not to the rights that exist in the carers legislation. The point has been made that we run the risk of burying this important entitlement under layers of law and a confusing web of guidance. It almost seems as if it is so deeply buried that the Government themselves are not totally aware of the nature of all these rights. This is an opportunity to clarify and to bring it into the new legislation so that it is not left behind in what my noble friend has called “rump legislation”. This is a vital opportunity that we really must not lose. I am glad that there is going to be a meeting and I hope that the Minister can clarify why there is this belief that the needs of children are being pitted against those of their parents. I hope that we can resolve this because it is not, in a sense, producing something completely new.
Baroness Tyler of Enfield
My Lords, I rise briefly to lend my support to this amendment. The hour is late and I will be brief. I am one of that band of noble Lords who were involved at all stages of the Care Bill and I think we have made great strides in joining up the Care Bill and the Children and Families Bill. I salute Ministers for having done that. I particularly pay tribute to Ministers for what they have done on young carers. We now have a set of rights for young carers which is so much stronger than before and that is a real landmark. Through the Care Bill, we have got improved rights for adult carers to assessment and support, and I applaud the Government for doing that. We have got much improved rights for young carers through the Children and Families Bill, linking in nicely with the Care Bill, and again I applaud the Government for doing that. We just have this one group left: the parent carers, who generally care for disabled children. If we could just get that missing bit of the jigsaw all sorted out so that all carers had the same set of rights to assessment and support, I think that it would be a tremendous step forward for carers in this country. I am encouraged to hear that meetings are still taking place and I hope that the Minister may have some encouraging news for us that the missing bit of the jigsaw is going to be put into place. We can all then be absolutely proud of what these two Bills together have done for carers.
Baroness Howe of Idlicote
My Lords, very briefly, it was only about an hour ago that we had exactly the same situation having to be sorted out for kinship carers. For goodness’ sake, parent carers are about as kinship as you can get, and if they cannot be rolled into the same set up of proper analysis and proper attention to their needs, then what can happen? I hope the Minister is going to move this thing on as quickly as possible.
Baroness Hollins (CB)
My Lords, parents of disabled children often do not see themselves as carers, but they are. Their need for support has been argued and won over the past 20 years. They really are different from other parents. Their right to be able to have a life alongside caring for their disabled child has been fought for very successfully. Parent carers are often so focused on the needs of their child that they forget about their own health and well-being. It could be argued that failing to recognise the needs of the parent carer is against their right to a family life under the Human Rights Act. I was involved with a WHO/Europe declaration, Better Health, Better Lives, which was about the health and well-being of children and young people with intellectual disabilities across Europe and their families. It was signed by all the Health Ministers, including our own, in 2012. One of the 10 recommendations was about identifying the needs for support of parent carers. I join my voice to that of the noble Baroness in this amendment. What is the Government’s rationale for allowing that the carers of a disabled 13 year-old would effectively have rights inferior to those of the carers of an 18 year-old? I hope that the Minister will be able to respond.
Baroness Howarth of Breckland
My Lords, I wish to support the noble Baroness, Lady Pitkeathley, in this amendment. The Minister is right in saying that the framework is there in the present legislation or, at least, it should be there. The difficulty is that, because the focus among those who make assessments is split between adults and children and we do not have holistic family assessments, often the parents are lost. A family whom I met recently had just, after many years, been given a period of respite care, but the parent carers had not realised that that would make the difference in their being able to continue to care for their son, an extremely difficult young man. A series of workers had never suggested to them that their needs might be met in order to meet the needs of their child. That is the important message that front-line workers need to understand. This amendment would help them to understand that, unless you meet the needs of parents, you do not meet the needs of children.
I, too, had this query when I heard that it had been commented that to assess parents would undermine the rights of children. Assessing parents enhances the rights of children. Many of us who have worked in this field and continue to work with and meet families see it regularly. We also see when people fail to notice that parent carers are beginning to fail, simply because of their exhaustion and the fact that they have had no relief and no assessment for any kind of services, sometimes quite small ones that would make all the difference to their being able to continue.
I support this because we should have a family approach whereby children with disabilities will be maintained in their own homes rather than having to go into caring facilities because their parents are unable to look after them. I am losing my power of speech, like most of us at this time of night, so I leave it there. My only other point is that the noble Baroness, Lady Tyler, made a passionate speech about integration, which I think we all feel should happen.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I welcome the opportunity to debate the important issue raised by the noble Baroness, Lady Pitkeathley. I recognise the tremendous job that parent carers of disabled children do and the challenges that it can bring. It is right that children’s legislation is the place to address this. I am pleased that the Minister for Children and Families will be meeting Paul Burstow to discuss this further.
We are confident that there is a strong framework of support in place to support parent carers of disabled children. Parent carers’ needs can be assessed as part of assessing the needs of children in need under the Children Act 1989. Local authorities can provide services to the family members of a child in need with a view to safeguarding or promoting the child’s welfare.
As parents, and as adults caring for children, parent carers are in a very different position from adults caring for adults or young carers. We should be wary of simply replicating arrangements that are in place for those other carers without understanding the interrelationship with other legislation and the potential for unintended consequences. Unlike for young carers, where we have responded to specific concerns and substantial evidence, there is a lack of evidence for the need to change the type of support or the way in which it is provided for parent carers of disabled children. That is not to say that everything is perfect, nor to underplay the challenges that parents of disabled children face, nor to claim that all parent carers receive the support that they need. However, it is not clear that specific changes to legislation are the answer.
Baroness Pitkeathley
My Lords, I had hoped that we were making a bit of progress, but I am having a kind of throwback moment. When many of us first started getting the issue of carers on to the social policy agenda—many noble Lords here will remember that—I used to be told, “Oh, you can’t think of the needs of carers. The needs of the disabled person or the older person have to be paramount and you’ve got to think of those first. If you look at the rights of carers, you’re going to undermine those roots”. I am hearing the same argument tonight and I find it extremely disappointing. However, we made progress on the other matter: everybody now understands that you can look at the rights of the disabled or older person and the rights of carers and not undermine either of them—the two are inextricably entwined. Therefore, I continue to hope that we will still be able to make progress. We have fundamentally failed to get Ministers and their officials to understand that there is a difference between being the parent of a disabled child and being a parent. There is a fundamental difference and it needs to be looked at. Having had the support of so many of my noble colleagues tonight, I feel that I have a window to come back to this on Report. However, in the mean time, I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, we had been led to believe that this session would finish at 8.15 pm but I have not been briefed about what will happen, so I am in something of a quandary. I wonder if the noble Lord would explain what the position is so that we can understand better what our responsibilities would be to the Bill, before I speak.
Lord Popat (Con)
My Lords, I have spoken to the Chief Whip, and we need to complete the Bill today.
Lord Stevenson of Balmacara
I am glad to hear it, but what has that got to do with me?
Lord Stevenson of Balmacara
I find this very unsatisfactory. As the noble Baroness said, we are all losing our marbles, if not our words. Trying to get through the Bill at this late hour when there are still two very substantial amendments to go is not what was agreed through the usual channels and certainly was not the basis on which we came into this discussion. I continue, but I do so with the feeling that this is not in the spirit of the best use of our time, and your Lordships’ House will be the worse for having to debate late into the night issues that should have seen the fresh light of day—perhaps next Monday, when of course there will be time.
Clause 104 was in my mind when I started the debate earlier—it seems a long time ago now but was in fact earlier this afternoon—by saying that while the Opposition were broadly happy with the measures contained in Parts 6, 7 and 8 of the Bill, there were one or two bits of grit, and this is one of them. Amendments 267L and 267M and the clause stand part Motion are grouped together in one place so that we can have a debate about them. While they all bear on the same area, they obviously have different impacts. My preference would be for the clause to stand part because I believe that what the Government are trying to do here is antipathetic to the very spirit of British law, which has always recognised the need for a person with a legal case to have the chance to make that case in a court of first instance but, where there have been problems or difficulties with that, the person would then have the right of appeal against decisions taken in the first instance. However, the Bill as it is drafted removes the process by which an employer must respond to an employee’s flexible working request and replaces it with a requirement to respond in a reasonable manner and within a timeframe of three months. We had a debate earlier about the word “reasonable”, and on that occasion the Minister felt unable to accept that word because he felt it was not appropriate for the context in which we were discussing it, although it has come back several times since and he has been quite happy with it. We have a situation here where reasonableness, which in the earlier amendments was a burden on employers, is now okay for employers to use.
The current processes include the provision for an appeal by an employee, and this obviously provides a useful opportunity to discuss why things have not worked out in terms of the process, but the Bill removes that. The history to this is interesting. ACAS consulted on a draft code of practice for the extended right to request flexible working, and employer bodies such as the CBI, the FSB, recruiters, the TUC, EHRC, Opportunity Now and Working Families acted as advisers on the draft code. The group agreed, and the draft code recognised, that an appeal is important. The draft code said:
“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.
Anybody reading that would recognise its antecedents in criminal law and civil law where clearly those who have cases—as I have said—can make them in the first instance and then, if there are difficulties, can appeal against some of the decisions in order that they can be better refined and reconsidered. We believe it is important that the Bill and the code are consistent to provide clarity to employers and certainty to employees that appeals are to be allowed. The amendment would make it clear on the face of the Bill that appeals remain an important part of the process of considering flexible working requests.
In Committee in the Commons, the Government argued that the amendment would mean that an employee always had a right of appeal, and that this would be burdensome and bureaucratic in a very small organisation. If it was an absolute right of appeal, that might be the case, but appeals are usually constrained by matters of fact or law and one would expect that normal processes would be applied. We argue that a very small organisation would be able to deal swiftly with an appeal, but allowing an appeal is important for procedural fairness and may reduce the use of grievance procedures instead. Sometimes employers do not give a statutory business reason for refusing a request, and that could give rise to an appeal. In addition, once the employee understands the employer’s business reasons for refusing a request to work flexibly, they may be more able to negotiate a solution, so it is a win-win all round.
I would ask the Minister to think again about this issue. It is important to retain what we normally expect as the right approach towards consideration of these quasi disciplinary matters. I beg to move.
Viscount Younger of Leckie
My Lords, I welcome the debate on the new arrangements for considering a statutory request for flexible working. Even at this late hour, I recognise the importance that the noble Lord, Lord Stevenson, attaches to this amendment and I hope that my reply attaches the same degree of importance to it.
The current right to request flexible working has been a success, with 80% to 90% of requests being accepted. However, that does not mean that the right cannot be improved. Clause 104 will remove the statutory procedure for dealing with applications for flexible working and replace it with a duty on employers to consider applications in a reasonable manner. Many employers like the structure and confidence that the current procedure gives them when considering applications. Those employers will be able to continue to use this procedure even when it is not compulsory and can be confident that in doing so they will be likely to be acting in a reasonable manner. Many other employers, however, would like to consider applications in innovative and effective ways which are currently not allowed by the statutory procedure.
The Government have asked ACAS to develop a statutory code of practice to explain to employers what will be considered to be reasonable when considering a flexible working application. ACAS consulted in February this year on the contents of the statutory code of practice. The consultation version of the code of practice states:
“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application”.
The Government want to encourage employers to allow their employees to appeal a decision where it is appropriate. However, it may not always be appropriate. This extension to the right to request flexible working aims to encourage more employers to consider how flexible working could work within their business. It is not about creating or maintaining a process and procedure for employers to follow. I would like to reassure the noble Lord, Lord Stevenson, that while the Government do not believe that offering an appeal will be appropriate in all circumstances, we anticipate that the statutory code of practice and the supporting guidance issued by ACAS will encourage employers to offer their employee an appeal and to explain the benefits that offering an appeal can bring. Accordingly, I ask him to withdraw his amendment.
Lord Stevenson of Balmacara
Perhaps the noble Viscount could run through that last bit again. I am sorry, it is late and I am not working quite to my maximum efficiency. One of the points I made in my speech was the discontinuity between the code and what is being said in the legislation. If the code is going to say that the reasonable expectation is that employers shall provide an appeal, why is it not also appropriate to ensure that the statute says the same thing?
Viscount Younger of Leckie
We believe that the supporting guidance issued by ACAS will be enough to act as a nudge factor to encourage employers to offer an appeal. Together with the guidance that we will be providing, we believe that this will explain the benefits that offering an appeal can bring. I hope that this provides reassurance, short of bringing in legislation. The code is statutory, so it should be read alongside the legislation.
Lord Stevenson of Balmacara
All right, I think I am getting there. There will be a code which will have statutory backing. The code will make it very clear that an employee making such a request which has been turned down, perhaps for no sufficient reason, will have a statutorily underpinned right to appeal that because that is what the code, which is expected to be applied by employers, will say. The noble Viscount does not need to come back on that but perhaps he can write to me on the point.
I am missing my letters—I have not had a letter from the noble Viscount for at least a week. For those of your Lordships who may think that this is a rather recherché, arch exchange across the Committee Room, we have a running joke between us because of the number of times we have to appear opposite each other. The noble Viscount has gained an enviable reputation for being a prolific letter writer. Whenever there is a doubt, we get a letter, so on this occasion, may I have my letter and I will consider it? The noble Viscount is going to speak again, so I cannot.
Viscount Younger of Leckie
I can reassure the noble Lord that I would be delighted to furnish him with yet another letter and I will make sure that the reference is clearly written on it. The noble Lord mentioned the word “grit” earlier this afternoon and I hope that I can reassure him that the grit in the code is the statutory backing, and that the code is to be read alongside the legislation.
Lord Stevenson of Balmacara
Not all grit is bad grit. An oyster produces pearls. Perhaps on this occasion the pearl has been provided. On that basis, I am happy to withdraw the amendment.
Grand Committee
(10 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Children and Families Bill
(10 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Benjamin
“Part 8AChildren participation in performancesChildren participation in performances
(1) Section 25 of the Children and Young Persons Act 1933 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) is amended as follows.
(2) For subsection (1)(a) substitute—
“(a) for the purposes of taking part in a performance to which section 37(2) of the Children and Young Persons Act 1963 applies,”.(3) In subsection (1)—
(a) for “this section” substitute “section 37 of the Children and Young Persons Act 1963”,(b) omit paragraph (a) and after “granted in respect of him under” omit “this” and after “section” insert “37 of the Children and Young Persons Act 1963”.(4) Subsections (2) to (11) of the Children and Young Persons Act 1933 are omitted.
(5) Section 37 of the Children and Young Persons Act 1963 (restrictions on persons under 16 taking part in public performances, etc.) is amended as follows.
(6) After subsection (2) insert—
“(2A) For the purposes of subsection (2), a performance does not include participation in—
(a) filming by private individuals for uploading onto the internet for transmission (“user generated content”);(b) observational documentaries in which the child’s life and routine remains to a significant degree the same as it would have been had filming not been taking place;(c) unplanned and spontaneous filming where parental consent is subsequently obtained for the purposes of broadcasting;(d) filming in the context of news and current affairs journalism, or filming in the public interest in circumstances where it is not practicable to apply for a licence, without prejudice to the effect of sections 39 and 49; or(e) any further category as the Secretary of State may specify by way of regulations.”(7) After subsection (3) insert—
“(3A) Where subsection (2A)(b) to (e) applies such that no licence is required, the person responsible for filming the child shall carry out an assessment of risk prior to the filming taking place, save where it is not possible to do so, in which case such a risk assessment must be carried out as soon as possible after such filming takes place.”
(8) In subsection (4) after “will not suffer” insert “and in particular, that the child would not be subjected to any risk beyond that involved in the ordinary course of their life”.
(9) In subsection (5) after “imposed by the authority” insert “; such conditions shall however, seek to minimise any differences in conditions imposed in relation to different media and any such differences must be necessary and objectively justified for the purposes of protecting the child against a specified risk, and in particular, regulations shall not prohibit the recording or broadcast of live performances where the child’s participation in that live performance is permitted by the relevant licence”.
(10) After subsection (1)(b) insert—
“(c) go abroad for the purposes of a performance to which subsection 2 applies save that this subsection shall not apply in any case where it is proved that the child was only temporarily resident within the United Kingdom.”(11) Section 38 is repealed.
(12) Section 42 is repealed.”
Baroness Benjamin
My Lords, first, I declare an interest as an independent film and television producer, making predominately children’s programmes.
So far, we have had a great deal of rich debate on the Children and Families Bill—right to the very end. The majority of our debates have had the protection of children at their very heart. This is no less the case with this set of amendments on child performance—a subject very close to my heart.
For children, having the opportunity to participate on a film or television set, on stage or in a sporting event can be of huge benefit. It may be an exciting step in their performance career, give them an all-important confidence boost or simply be something that they remember for ever.
However, at the moment many children are prevented from taking part in performance due to antiquated and out-of-date legislation from the 1960s. That was a time when there were only three channels, and there were not the wide variety and diversity of opportunities for children that are available today. More importantly, the current legislation fails to provide strong safeguards and protection for children in today’s changing environment. The current legislation is simply not fit for purpose and desperately needs updating.
Under the current regime, seeking a performance licence can be difficult, time-consuming and unpredictable. Some local authorities simply act in such a way as to deny licences to children in their region as a matter of course. Others feel that they must apply the current legislation to the letter, and therefore they, too, deny children licences in their regions, while others try to help parents, children and the industry by pushing the confines of the legislation as far as they feel they can. With some local authorities licensing freely and others failing to do so, we have what can only be described as a postcode lottery in which there is no equality of opportunity for children. This is clearly not what we should be promoting in a progressive and diverse country such as the UK.
In 2010, Sarah Thane, who was a content and standards adviser at Ofcom, carried out a comprehensive review into all aspects of child performance regulations. The report concluded that the system of licensing child performance needed urgent and radical overhaul. In February this year, the Government published the results of a wide-ranging public consultation. While a range of views was given, there was broad consensus in many areas, including on the fact that legislative change was needed to improve the situation.
I am sure that noble Lords will have noticed that there is no current wording on child performance in the Children and Families Bill. However, I see the Bill as an ideal opportunity to deliver much-needed change and to provide a better legal framework that will both protect and safeguard children and young people and, more importantly, give them equal access to opportunities. The changes will give clearer guidance, transparency and consistency among local authorities when dealing with these matters.
At this stage of the Bill, I am not suggesting that we try to change the whole of the out-of-date 1960s Act. These focused and targeted amendments are addressing the major concerns that urgently need reform. So what do they seek to achieve? I will talk about three key areas of focus: first, improving equality of opportunity; secondly, improving safeguarding and risk assessment; and, thirdly, working with local authorities to achieve compliance.
On equality of opportunity, at the moment not all children or even types of participation and performance are treated equally. Currently, the narrow definition covers only acting, singing or dancing and does not include the wealth of opportunities available to children in the 21st century, such as observational documentaries, reality shows or educational programmes. Only recently, an important educational documentary, which was to be filmed at the British Museum, nearly did not get the go-ahead because of the failures of the current legislation. These amendments would do away with this restrictive definition and allow all children under 14 to participate in a range of performances.
At this point, I want to make it absolutely clear that the rules in the amendments would not cover circumstances where someone has filmed content and put it on the internet themselves—also known as user-generated content—or where the filming involves children in the ordinary course of a child’s life, in which case there is no impact on them. This would include documentaries, news and vox pops, where it is simply not feasible to seek a licence in advance.
However, even here the amendments would still require a risk assessment and duty of care for the child when the programme is broadcast. The amendments would also put an end to different mediums, such as television and theatre, being treated differently. This would end the bizarre situation—for example, as happens with the Royal Variety Performance—where children cannot perform after 7 pm purely because the live theatre show is also being broadcast on television. Had the cameras not been there, the children could have performed. This is becoming a recurring problem as many theatre performances involving children are now being recorded live to be shown in cinemas across the country to make art and culture more accessible. Noble Lords might have read recently about the talented choirboy who missed out on the experience of a lifetime of performing in the Royal Albert Hall at the Last Night of the Proms. Because the selected young soloist would have been singing after 7 pm, the organisers had to use an adult to sing instead. The young boy was denied a wonderful opportunity.
I now turn to improving safeguarding. These amendments have the safeguarding and protection of children at their very heart. Even though we are removing old and narrow definitions, this is absolutely not about deregulation. It is about better and more consistent regulation. The amendment would introduce a proper risk assessment for producers to complete which would be approved by local authorities. The risk assessment will cover all health and welfare issues and ensure that they are properly and professionally addressed. These changes will provide clarity and consistency. They will also make sure that any British child performing overseas has the same level of protection as a child performing in the UK. This does not happen at the moment.
Finally, on working with local authorities to achieve compliance, from my conversations with the Local Government Association, I have found that it is supportive and agrees that times have changed since the 1960s. It, too, feels that the legislation needs to be updated. I have met Councillor David Simmonds, the chair of the LGA children’s board. He expressed the LGA’s concern about the existing regulations and said how exposed and uncomfortable it feels with them as they stand. This is why we need to be working with local authorities now, as they, too, recognise that the creative industries are an important driver of the economy and offer many employment and personal development opportunities.
If the amendments are agreed, the industry will work with the LGA to develop a risk assessment framework that will streamline the system and reduce bureaucracy. These amendments are absolutely not about creating more work and headaches for local authorities. The legislation would put the responsibility in the hands of the producer to achieve the required standards of risk assessment. This would be delivered through an agreed and standardised format. Local authorities would then be freed to learn more about the work of production companies and to focus more on the critical compliance issues. A great deal of work has already been done by the industry to develop a risk assessment framework, and it is ready to be developed further.
Finally, I point out that these amendments have been developed in collaboration with an industry-wide coalition of public service broadcasters, including the BBC, ITV, Channel 4 and Pact—the Producers Alliance for Cinema and Television. There is strong support from the National Network for Children in Employment and Entertainment, chaperones, schools and child psychologists. The amendments also have cross-party support, including from the noble Lord, Lord Inglewood, chair of the Lords Communications Committee.
I hope the Minister will agree that this Bill offers a key opportunity to address safeguarding for children around performance. These amendments would make sure that all children, no matter where they live around the country, have equal and safe access to positive development opportunities. So let us take this opportunity to update antiquated legislation that is not fit for purpose. We simply cannot leave this for another 50 years. I ask the Government to support these amendments and send out a clear message to all involved with child performance regulations that government are taking action now. I beg to move.
Baroness Howe of Idlicote
My Lords, I am a firm supporter of child protection, as well as someone with a long-standing interest and involvement in broadcasting issues. The amendment in the name of the noble Baroness, Lady Benjamin, aims to improve the legislative framework to the benefit of both those areas, ultimately providing children with more opportunities to participate in performances of all kinds under a clear and robust framework of protection. I therefore very much welcome and support Amendment 268.
Most of your Lordships will be familiar with the appearance of children on our television screens, whether it is in documentaries, dedicated children’s shows, dramas or entertainment programmes. Children benefit from these appearances by gaining confidence and new skills, and it is important for society as a whole that children are both seen and heard in the media. Equally, we can all agree that children should have the right to participate in such programmes and that the process for ensuring that they are appropriately protected should be clear and consistent. As we have heard, unfortunately at present this is not the case.
In particular, I welcome the comments made by the noble Baroness, Lady Benjamin, around improving equality of opportunity. I have been a long-standing campaigner for equal opportunities for adults, and they are of equal importance for children. The noble Baroness talked about how some local authorities deny children in their regions the opportunities to participate, while others try to navigate the legislation. It cannot be an acceptable state of affairs for some children to be given the opportunity to participate in a programme while others are denied it purely because of the lottery, as the noble Baroness said, of where they happen to live. That must be changed so that all children of all ages can participate in a full range of programmes.
Protection of the child is at the heart of our discussions throughout the Bill and must be at the heart of any considerations here. I am assured that the broadcasting industry is not looking to get out of its responsibilities. As the noble Baroness, Lady Benjamin, said, this is about better regulation, which is the goal of all who sit in this House. The amendment would introduce a comprehensive, standardised risk assessment, covering all possible health and welfare issues, and make it more efficient and consistent. It would be underpinned by the existing regulatory framework that would continue to be in place.
Broadcasters are obliged under the Ofcom Broadcasting Code to have a duty of care to the,
“physical and emotional welfare and the dignity of people under eighteen”,
participating in programmes. That applies to all television programmes at all times. I know that a great deal of guidance is issued and that efforts are made by all in the industry to meet these responsibilities.
The amendment is aimed at providing much-needed reform to the current system and replacing it with a more consistent, clearer and, above all, fairer framework that puts risk at its heart. That means that rather than spending their time trying to navigate the complex laws and arbitrary definitions, the production companies, local authorities and broadcasters can better spend their time analysing the real risks and putting child protection more at the heart of their work. These changes will provide clarity and consistency to ensure that every child in performance is properly protected and that all children are licensed. I therefore urge your Lordships, particularly the Minister, to support this amendment.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a television producer for the BBC. I support the amendment. It will both encourage children to extend their skills and protect them from the possible threats posed by the proliferation of new media platforms. It responds to the explosion in the range of media in which children can now appear. It takes into account the ever-changing programming available today, as factual and entertainment programmes are commissioned to entertain an audience with an increasingly short attention span and greater demands to be surprised and shocked.
The amendment would introduce a consistent local authority licensing system for under-16s who perform in the visual media, as we have already heard. As a television producer, it might seem odd that I should want to make my life and that of my colleagues more difficult by extending the regulatory regime, so that we would have to do more work when preparing for a production that involves young people. But it is because I am a television producer that I am well aware of how the present regulatory system is failing children. It often frustrates the hopes of children while failing to protect them from the dangers that may await them.
The noble Baroness, Lady Benjamin, explained the chaotic postcode lottery of different local authorities and their responses, which is very difficult for producers in the media who want to work with children. There is a case of children in a school that served two neighbouring local education authorities. The school was asked to take part in a concert to be broadcast on television. But when it came to transmission, only half the choir had permission to perform. One authority had given a licence to perform and the neighbouring authority had refused. How on earth can that be fair on the children involved?
Subsection (6) of the proposed new clause is in line with paragraph 104 of Sarah Thane’s review, which calls for a proper definition of what constitutes “performance”. The subsection is very important. It spells out which filmed activities involving children do not require a licence, although they will still of course require permission from parents and head teachers. It makes clear that everything else would be covered by the licensing system. The result would be that many new genres, which at present are not covered, would be included.
For instance, there is a new type of programming called structured reality TV, which masquerades as observational documentary while in fact the participants are open to direction. The genre covers shows such as “The Only Way is Essex” and “Made in Chelsea”, with which I am sure your Lordships will be familiar, which are massively popular with a young audience. At the beginning of the show “TOWIE”, viewers are mischievously warned, “Some of the tans you see might be fake, but these are real people, although some of what they do has had a little nip and tuck purely for your entertainment”. The warning should give the Committee a clue that the characters are subject to a narrative created by producers in which they are directed in a situation to ensure maximum drama, violence and even sex.
The Committee will be pleased to hear that at the moment most of the participants in these shows are aged over 18, but there are attempts to commission versions with much younger characters. The executive producer of “The Only Way is Essex” has said that when the producers are casting characters for these reality shows, they have to read them what is called “the talk of doom”, in which they warn them that people chosen to appear in the show will be recognised and abused in the street, their private lives will be watched and criticised by millions and their lives will be completely changed, not always for the better.
Apparently, the candidates, all from the social media generation, look at the executive producer with blank incomprehension. They cannot understand why they are even being warned about this. These young people’s private lives are already open books, thanks to social media. I fear that there is a generation who do not understand how psychologically damaging it can be have your privacy destroyed. We as lawmakers need to protect them and ensure that in an ever-changing media environment they are not exploited by the ruthless demands of the media.
Subsections (7), (8) and (9) of the proposed new clause are in line with the recommendations in paragraph 92 of Sarah Thane’s review, which suggests that, when it comes to licensing, the focus should be on the child—on what they are being asked to do and on the level of risk involved. This would ensure, as has already been said by noble Lords, that the consideration by local authorities of the risk to children is uniform and thorough. At the moment, decisions made by LEAs can be irrational. There was recently a case of a six year-old boy who was mentored and trained by the Olympic diver, Tom Daley, and who wanted to appear with him on the ITV show, “Splash”. All he wanted to do was dive with his hero on television, but at the last minute his local LEA in Cornwall refused him a licence to appear on the grounds that he was too young. You can imagine his disappointment.
If this amendment is adopted, a licensing code of practice will be rolled out uniformly to all local authorities across the country. Its risk assessment will cover the mental and physical health of the young people taking part in performances. Obviously, the risk assessments should be adhered to, but in the present climate of pressures on budgets and the intense competition to surprise and shock audiences across the media, enforcement will be crucial. The new system must include a tough regime of inspection of productions that involve children.
We are in a new world. The internet and digital television offer us a jungle of diversity and shock. We need to update, streamline and extend our present licensing system. Only then will our children’s performances on the media be directed with their best mental and physical welfare being at the heart of the production. I urge noble Lords to support this amendment.
Lord Storey
My Lords, I am tempted to suggest that perhaps there ought to be some regulations regarding the times that we can perform, so that we know when we will start and finish and that we are being safeguarded correctly—but clearly that is not going to happen.
I went along to an all-party group looking at children and young performers in the media. I did not realise the problems that not only children face in terms of safeguarding. I am being told to shut up—you see, I cannot even perform.
I will make three very quick points. First, the legislation that was quite rightly introduced in the early 1960s was to protect children, but since then history has moved on. Times have moved on. Never mind a few television channels, we have hundreds of them. We are seeing the law being broken. There are television shows that are breaking the law. There are others that are playing by the outdated 1960s regulations. For example, a poor lad wins a talent competition, but because the witching hour has passed, he has to sit in the audience and cannot be part of the winning group.
I remind noble Lords of the three concepts that my noble friend Lady Benjamin spoke about: consistency, transparency and making sure that safeguarding happens. Currently, safeguarding does not happen. If we take only one thing from this rather truncated discussion, it should be that safeguarding children has to be not only about safeguarding them as individuals but about safeguarding their opportunities. It cannot be right that children in some local authorities are allowed to take part while in other local authorities they are not.
When the Minister replies—briefly, no doubt—I ask him to consider how we can make this happen, because we cannot have legislation trying to protect our young people that goes back to the early 1960s. I had lots more to say, but perhaps I can save that for another time—or, hopefully, not.
Lord Stevenson of Balmacara
My Lords, I thank noble Lords who contributed to this debate. It is a good topic and one which we have been happy to put our names to in order for it to have the best possible chance of being successful.
The noble Baroness, Lady Benjamin, will not mind me saying that when I first came down as a raw and untutored-in-the-cinematic-arts person from Scotland, she was one of the first people I met. She wowed me then, and she wows me now. That performance—Floella, you were wonderful.
I am very pleased to be able to support this update of legislation that was last updated in 1963. Clearly, as we have heard, the world of television and film performance has been transformed since then. As noble Lords mentioned, it is important that the legislation properly reflects the full range of opportunities available to young people and at the same time builds in safeguards that will protect them from exploitation or physical or mental harm.
However, the chance to be involved in film and television work—indeed, this also applies to stage work—depends where you live, with local authorities operating rules in a very inconsistent way. There are also huge disparities in the amount of paperwork required. We need to update the legislation. It needs to widen the types of involvement suitable for child participants and to make sure that it covers the range, as has been mentioned, away from just simply acting and singing. What a wonderful world 1963 must have been if that was all you could do. I would not know. “Stop mucking about”.
Lord Nash
My Lords, I thank my noble friend Lady Benjamin and all other noble Lords who spoke in this important debate. My noble friend Lady Benjamin makes a heartfelt case for updating the law in this area. Her long involvement with the performing arts and her work with children make her extremely well qualified to speak on these matters—as of course is my noble friend Lord Colville.
The achievements of the UK broadcasting sector and the importance of the creative arts to our economy cannot be overestimated. Our cultural industries are recognised throughout the world for their groundbreaking innovation and their wealth of creative talent. We are proud of that, and we should continue to support them to grow and achieve. We must nurture our young talent. The child performance licensing system was designed to allow children to take part in performances and, importantly, to ensure that arrangements are in place to protect them when they do. The broad framework has done that effectively and continues to do so. This is also something to be proud of.
The system was designed in an age when broadcasting was in its infancy. New forms of media that are commonplace today were unheard of then. Our attitudes to children and to art have also moved with the times. However, some aspects of the licensing framework clearly have not. That is why, last year, the Government consulted on proposals for change. The consultation highlighted a number of problems. Some problems certainly stem from different local approaches to administration, as noble Lords have said. I welcome Councillor Simmonds’s leadership in tackling this. I recognise his concerns, and I am pleased that the Local Government Association plans to promote best practice to achieve greater consistency and reduce bureaucracy in this area.
We want to see more use of the flexibilities that already exist, especially when children perform in a non-professional capacity. More amateur groups and charities with a good track record for safeguarding should be approved to involve children in performances without the need for extra paperwork. Paperwork does not protect children.
Problems clearly exist in the system, but responses to our consultation were split on some key proposals. We do not agree the case for wholesale legislative change at this time. It is important that we get the balance right between increasing opportunities for children and protecting them from undue risk. We do not intend to take any action that could reduce the protections that are in place for child performers.
I recognise, however, that there are a small number of legal provisions that currently prevent children from taking up opportunities, for no good reason. We heard recently from the Royal Opera House about how an anomaly in the regulations meant it could not screen a ballet performance to a worldwide audience, or even to the home town of a very talented young dancer. The well-being of children is paramount, but there should not be unnecessary barriers to their taking part in performance arts, or to the airing of their talents.
I listened carefully to what my noble friend Lady Benjamin said tonight and at Second Reading, and to what other noble Lords said, and I am delighted that I shall meet her tomorrow. I look forward to that. We will explore what might be done to remove barriers without unpicking any of the important safeguards, and we are keen to be as helpful as possible. I therefore urge my noble friend Lady Benjamin to withdraw her amendment.
As this is the last debate in Committee, I take this opportunity to thank all noble Lords—those here this evening and those who have attended previous sittings—for their constructive, insightful and expert contributions to our Committee debates on the Bill. I also thank on behalf of us all the chairs, clerks and Hansard for staying on tonight.
This has been a most thorough and comprehensive scrutiny of the Bill. I and my noble friends Lady Northover, Lord McNally, Lord Attlee, Lord Howe and Lord Younger have learnt a great deal from noble Lords. We have a number of meetings already arranged, and I look forward to speaking to noble Lords here today and to many others about the issues that we have debated. I am committed to ensuring that those discussions move forward constructively so that we can resolve many of the issues that we have discussed ahead of Report.
Baroness Benjamin
I thank my noble friend for that response. I think that there is some sort of encouragement there. I cannot quite read the signs, but I hope that when we meet tomorrow I will get something perhaps a bit more constructive and concrete from him.
I am very grateful to all noble Lords who put their names to these amendments—it means so much to me—and to those who spoke so eloquently at this late hour. It is much appreciated. All noble Lords pointed out that the amendments represent an important step-change in addressing inequality as well as ensuring that there are provisions in place for strong safeguards and protection for all children who wish to perform and take part in any aspect of today’s vast media environment. I am encouraged to hear that the Minister will give guidance and recommendations to local authorities on how to have concise, coherent and consistent guidelines. That is wonderful. I strongly believe that we need to go further. I appreciate that using this Bill to solve the problem of children’s performance regulations might not be possible, but this is an important issue that ultimately will need more permanent change to the current outdated legislation.
I will say something now that I will probably say tomorrow—but I want to say it publicly. I intend to bring a Private Member’s Bill at an appropriate point to deal with child performance regulation, bringing it into the 21st century, to cover the range of concerns that those in the industry have with the existing Act. Will the Minister be able to give me a reassurance that the Government will give strong consideration and support to such a Bill if that were the case?
Baroness Benjamin
I thought that my noble friend might say that, but I wanted to say it publicly anyway. I look forward to discussing this matter further. I, too, thank Hansard for staying with us at this late hour to record what we have said on this important issue. With that in mind, I look forward to meeting my noble friend the Minister tomorrow, and I beg leave to withdraw my amendment.
“(6) A statutory instrument containing (whether alone or with other provision)—
(a) the first regulations to be made under section 49,(b) an order under section 54(1) or 55(1), or(c) an order under section 108 which amends or repeals any provision of primary legislation,is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
House of Lords
(10 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text
Prisons: Prisoners with Children
(10 years, 11 months ago)
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Baroness Benjamin
To ask Her Majesty’s Government what plans they have to record whether or not an individual remanded in custody, or sentenced to prison, has any children.
Baroness Benjamin (LD)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I declare an interest as a vice-president of Barnardo’s.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, our reforms to transform rehabilitation to bring down reoffending rates will see the introduction of an unprecedented through-the-gate service. Under these plans, we are developing a basic custody screening tool that will be completed by prison staff for all sentenced offenders and remand prisoners. As part of that process, we will record whether an offender has any children.
Baroness Benjamin
My Lords, Barnardo’s and other leading children’s charities have found that children of prisoners are a very vulnerable group. They are twice as likely to experience depression, mental health problems and drug and alcohol abuse, and to live in poor accommodation. Many go on to offend and yet these children are unlikely to be offered any targeted support. Barnardo’s found that the courts keep no record of them and that there are no requirements to identify them to children’s services. Will the Government create a statutory duty for courts to identify defendants who have dependent children and agree that, by collecting those data, they will be better placed to detect vulnerable children with a parent in prison and ensure that they get the support they need from children’s services?
Lord McNally
My Lords, I am not sure that I can give the guarantee of a statutory function for the courts but our reforms for probation will mean that the important function of advising the court prior to sentencing —which will outline the offender’s personal circumstances, including dependants—will remain with public sector probation services. Our reforms to transform rehabilitation will also introduce through-the-gate services for those given custodial sentences.
I appreciate the point that my noble friend makes; it is a worrying factor that many of the young people who come into the criminal justice system are themselves children of offenders. We should certainly be looking at ways to break that circle and trying to make sure that these children are helped away from a life of crime.
Lord Touhig (Lab)
My Lords, in replying to a debate on this matter on 12 November, the Minister offered a meeting and I certainly look forward to that. I have since read his remarks from that day. When an elderly or disabled person’s carer is sent to prison, the cared-for person often suffers the most as, in many cases, the courts do not even know that they exist. Although I accept that there is the safety net of pre-sentence reports in certain circumstances, when bail is denied there is no pre-sentence report and the court may not know that there is a cared-for person around at all. The consequence is that the cared-for person becomes an unintended victim. How are we going to stop that?
Lord McNally
My Lords, I appreciate very much the point that the noble Lord is making, and I look forward to meeting him and the Prison Advice and Care Trust. In some ways, it is amazing that we are in the 13th or 14th year of the 21st century and that we find these gaps in our care provisions. I often think that it is not that the state does not care but that we are not yet good enough at connecting bits of the state so that people do not fall through the net. As part of the exercise of bringing forward this basic custody screening tool, I hope that by bringing in the expertise of organisations such as PACT we will be able to make sure that people do not slip through the net in the way that the noble Lord suggests.
The Lord Bishop of Birmingham
My Lords, perhaps I may press the Minister a little further. When a court is aware of a child whose parent is imprisoned and that child is in a vulnerable state, will he ensure that the court refers the child to the proper care of the local authority or a charity in the region where that child is living?
Lord McNally
I go back to what I would expect to be common sense in these areas. Courts already have a duty, in every case, to take account of any mitigating factors, including that the offender has primary care responsibilities for children or other dependants. However, it is important that the presence of such dependants is brought to the attention of the court. Again, I can only emphasise that the direction of travel we are going in is to try to make sure that the prison and court authorities are aware of their responsibilities and that they link up with the supporting organisations needed in these cases.
Baroness Finlay of Llandaff (CB)
Are the Government formally evaluating novel schemes, such as that at Doncaster prison, which aim to maintain the bonding between a parent and a child—particularly a new-born baby? The parent’s reoffending rate is lower, bonding takes place and the parental duty is learnt while the person is in prison, rather than it being destroyed during their incarceration.
Lord McNally
Yes, my Lords, we are following the Doncaster experiment. Last month, I announced a new approach to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families, which is important not only for new-born babies but throughout childhood.
Baroness Corston (Lab)
My Lords, 17,000 children a year are affected by their mothers’ imprisonment. Given that the Government plan to close two women’s prisons, which means that there will be only 12 women’s prisons in England and Wales and which will lead to much longer journeys for those visiting their mothers and, often, to catastrophic breaks in the relationship between mother and child, will the Minister confirm that the mother and baby unit at Holloway prison is not subject to closure?
Lord McNally
I am not aware that there is any plan to do that but, if there is, I will write to the noble Baroness. However, such decisions are taken for operational reasons in the region. I have visited the Holloway unit and I know that it is valued because while it is not the most modern prison, it is close to people’s homes. The noble Baroness says that we are closing two women’s prisons, but the major complaint about those prisons which we plan to close is that they are a long way from anywhere, never mind not being close to home. We are developing the custodial estate so that women will be in the prison closest to their home. We have found from all the research that that is the factor which women in prison want. With that, coupled with the rehabilitation reforms and through-the-gate care for women, we hope to be able to address a number of the problems that the noble Baroness is concerned about.
Sentencing Council: Guidelines
(10 years, 11 months ago)
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Baroness Miller of Hendon
To ask Her Majesty’s Government what sentencing guidelines are issued by the Sentencing Council to advise judges on the choice of the imposition of either consecutive or concurrent sentences on persons guilty of multiple offences.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, the Sentencing Council issued the Offences Taken into Consideration and Totality guidelines in June 2012. They state that a concurrent sentence would be appropriate where,
“offences arise out of the same incident or facts”,
and where,
“there is a series of offences of the same … kind”.
A consecutive sentence would be appropriate where,
“offences arise out of unrelated facts”,
or where the offence,
“qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum”.
Baroness Miller of Hendon (Con)
I thank the Minister for his reply, but does he not agree that perception is everything? The Sentencing Council admits that:
“Concurrent sentences are sometimes thought to mean that an offender is getting away with some offences”.
Why, indeed, should an offender convicted of, say, causing death by dangerous driving, driving while disqualified and driving while uninsured not serve separate consecutive sentences for each offence, so that justice can be seen to be done? Is the Minister aware that justice is not served when the system seems to operate like a supermarket: “Commit one crime and get another one free”?
Lord McNally
My Lords, I appreciate that sometimes the way in which sentences are reported can cause that reaction—but the courts are required to impose a sentence that reflects all the offending behaviour in every case, for both single and multiple offences. With concurrent sentences, the guidelines make it clear that the courts should normally aggravate the primary sentence to reflect the additional offences. These guidelines are about ensuring that the courts apply those principles consistently.
Lord Clinton-Davis (Lab)
My Lords, how frequently, if at all, has such guidance been given since the inception of the present rules? If so, in what circumstances has that arisen?
Lord McNally
My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,
“it would be contrary to the interests of justice to do so”.
What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?
Lord McNally
Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.
Project Tempora
(10 years, 11 months ago)
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Lord Strasburger
To ask Her Majesty’s Government which Minister first authorised GCHQ’s Project Tempora; when that happened; and why they did not disclose the existence of Project Tempora to the Joint Committee on the Draft Communications Data Bill.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I hope that your Lordships will understand that it would not be appropriate to discuss the specifics here. However, I can say that GCHQ and all other security and law enforcement agencies operate within a strict legal and policy framework, as set out by my right honourable friend the Foreign Secretary in the other place on 10 June.
Lord Strasburger (LD)
I thank my noble friend for the Answer that she was required to give. In a democracy, wholesale untargeted state intrusion into the private lives of all the people, such as Project Tempora, is unacceptable unless it has the informed consent of the people via their Parliament. However, Parliament has not been informed and has not given its consent to Tempora; nor has the Cabinet, the National Security Council or even, it seems, the ISC. Will the Government acknowledge that the much vaunted oversight of the security services has failed spectacularly, as underlined last week by the feeble public performance of the ISC? When will the Government at last join the global debate about limiting state surveillance of its innocent citizens?
Baroness Warsi
The noble Lord makes an important point but I assure him that secret does not mean unaccountable. We have a system where any intrusion of the sort to which he refers has to be necessary, proportionate and carefully targeted. We have a number of oversight mechanisms, including political and judicial, the commissioners and of course Parliament through the Intelligence and Security Committee.
Lord Campbell-Savours (Lab)
My Lords, when Malcolm Rifkind was recently interviewed on television, he seemed to suggest that the ISC, which he chairs, knew of Tempora but not by that name. If it did, would one not have expected it to have perhaps recommended a tightening up and clarification of the law?
Baroness Warsi
I hope that the noble Lord will appreciate that these are not matters into which I can go in any detail at the Dispatch Box. I cannot go into any detail of what the Intelligence and Security Committee was or was not aware of. It would be inappropriate for me to comment on how the noble Lord interpreted the comments made by my right honourable friend Malcolm Rifkind. I hope that the House appreciates that I am incredibly frank and robust when I appear at this Dispatch Box. In fact, probably much to the annoyance of my officials, I go beyond what is normally in the brief, but this is not one of those occasions on which I can comment on these matters.
Baroness Miller of Chilthorne Domer (LD)
My Lords, my noble friend mentioned how important accountability is but there is a very unfortunate issue here: Menwith Hill is Little America, albeit that it is in the north of England. Ever since 1994, Parliament has been asking for, but never receiving, any information about what goes on at Menwith Hill. I appreciate that there have been several visits by the ISC, although I gather that they were very uninformative. How can my noble friend imagine that that situation will become more accountable when that place is accountable only to the United States Government?
Baroness Warsi
I go back to what I said at the outset. Accountability in relation to these sensitive matters takes a number of different formats. We have laws in this country which are completely compliant with the Human Rights Act and which set out the parameters and the remit of the intelligence services. Some of the highest politicians in this land—the Foreign Secretary and the Home Secretary—have to sign off on each and every warrant presented before them. We have parliamentary accountability in the form of the Intelligence and Security Committee. Again, it would be inappropriate for me to comment on what its views were after its visits. We also have the tribunal, where individual cases can be presented.
Lord Butler of Brockwell (CB)
My Lords, will the Minister confirm that GCHQ was candid to the Joint Committee on the Draft Communications Data Bill about the unclassified aspects of what it can and cannot do in collecting communications metadata, and candid with the Intelligence and Security Committee about the classified aspects of it?
Baroness Warsi
The noble Lord makes an important point. The Intelligence and Security Committee conducted a thorough review of the Draft Communications Data Bill. This was done at the same time as a review by the Joint Committee. It is right that it is the role of the Intelligence and Security Committee, rather than other parliamentary committees, to look at sensitive information.
Lord Richard (Lab)
My Lords, of course the Minister cannot go into details on these very sensitive matters. We all accept that. However, for the life of me, I do not see why she cannot answer a straightforward Question about which Minister authorised the project and why the existence of the project was not disclosed to the Joint Committee on the Draft Communications Data Bill. These are not sensitive issues. They are pure matters of fact, surely capable of being answered.
Baroness Warsi
It is interesting that the noble Lord interprets it in that way but I think he would also accept that it would be inappropriate for me to comment on intelligence matters, which includes any comments on the project.
Lord Soley (Lab)
Will the Minister take back what is troubling so many of us, which is that there has not been an acknowledgment yet by the Government of the need for a major discussion about the way we exercise oversight? It is not just the issue of accountability; it is also because of the almost terrifying fact that something like 60,000 files were available to some 800,000 people. This is supposed to be secret, even top secret. It is a nonsense and dangerous from that point of view, as well as the accountability. Please can she tell her colleagues in government that we need a full discussion on the accountability and the way we are doing it, because at the moment it is not working.
Baroness Warsi
I assure the noble Lord that these discussions are taking place, although not necessarily in the format he would like. Indeed, only this morning I had a round table with a number of NGOs and human rights activists who work in the area of freedom of expression on the internet and how that overplays with these kinds of allegations. These conversations are ongoing, and part of the appearance of the three intelligence chiefs at the Intelligence and Security Committee meeting was to do with that. I think the noble Lord would also accept that this is about perception —that leaks and the kind of information we have seen create a sense in the mind of the public that something is not quite right. It is wrong therefore for us to in any way play up to that by starting to comment on individual intelligence matters.
Lord Sharkey (LD)
My Lords, the Regulation of Investigatory Powers Act is plainly inadequate to deal with the situation caused by the advances in interception technology. Does the Minister accept that there is now an urgent need for full and proper post-legislative scrutiny of RIPA?
Baroness Warsi
I probably should just refer the noble Lord to the 2012 annual report of the Interception of Communications Commissioner, which was published on 18 July this year. In it he said that RIPA had weathered well and the system of oversight it laid down has been, he believes, effective.
Lord Foulkes of Cumnock (Lab)
My Lords, does the Minister accept that we all agree that GCHQ and the intelligence and security services do very important work to protect us from many threats but that effective democratic oversight is absolutely vital? With no disrespect to my noble friend Lord Lothian—I call him my noble friend—or indeed the noble Lord, Lord Butler, recent events have shown that the Intelligence and Security Committee, as currently constituted, is not really effective. Can the Minister give us some assurance that, in the new structure of the Intelligence and Security Committee that we are considering, we will have a robust membership accountable to both Houses of Parliament?
Baroness Warsi
The noble Lord will be aware that the role of the Intelligence and Security Committee has been up for discussion. I will ensure that his views are fed into that.
Gibraltar and Spain
(10 years, 11 months ago)
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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I am afraid that you have the McNally and Warsi show today.
We welcome the fact that the Commission has put Spain on notice and has made recommendations to the Spanish Government to improve the functioning of the border, which, if implemented, will reduce delays. We have published the Commission’s letter to the UK and Gibraltar and we encourage Spain to do likewise. Chief Minister Picardo has welcomed this and has confirmed that Gibraltar will act on the Commission’s recommendations.
Lord Luce (CB)
My Lords, I am grateful to the Minister for her reply and to the Prime Minister for his strong support for the Gibraltarians. Will the Minister accept that, having visited Gibraltar at the invitation of the Gibraltar Government this month, and as a former governor, I can confirm without any doubt that border delays by Spanish authorities in the past few months have been not only disproportionate but a deliberate abuse of human rights and freedom of movement on a scale that would be totally unacceptable in any other part of the European Union and in which local Spaniards as well as Gibraltarians are suffering?
Will the Minister also accept that an average of five Spanish incursions a day into British-Gibraltar territorial waters could at any moment lead to a serious incident? Therefore, will the Government now demonstrate by deeds and not just words that we will exercise our responsibilities to Gibraltarians against this Franco-ist style intimidation by taking appropriate legal action now, by ensuring the Commission’s recommendations on broader traffic are implemented speedily by Spain, and by giving the new governor and commander-in-chief adequate resources to uphold British sovereignty?
Baroness Warsi
I thank the noble Lord for that further question. Of course, he comes to these matters with great expertise and experience from his involvement with Gibraltar. We are not surprised at the Commission’s conclusions in relation to border issues there. Of course, the border operated more smoothly than normal when the Commission was visiting. But I agree with the noble Lord that there are huge challenges and there continue to be huge delays at the border. We remain confident that Spain has acted, and continues to act, unlawfully.
I hear what the noble Lord says about action, but although all our options are on the table, we feel at this stage that it is best to pursue this matter through diplomatic means. It was for that reason that, after a further lengthy incursion, the ambassador was summoned to the Foreign and Commonwealth Office yesterday where we made our views clear to him.
Baroness Hooper (Con)
My Lords, does my noble friend agree that the fact that the date and time of the European Commission’s visit to Gibraltar was advertised in advance means that it was not exactly the sort of spot check that could have revealed some of the worst practices that were carried out during the summer months and which affected the people of Gibraltar, Spanish workers and tourists alike? Have the Government queried that method of procedure with the Commission?
Baroness Warsi
My noble friend makes an important point. That is why I said that we were not surprised that when the Commission visited things were much better than normal. It was not just a question of delays and inconvenience; it was concerning in terms of delays to ambulances, for example. It was therefore a real threat to individuals’ lives.
We are heartened to hear that the Commission intends to return. It may well be that a return without a lot of notice may be the right way forward.
Lord Howe of Aberavon (Con)
My Lords, it is good to be reminded that Britain played a significant part some years ago in helping to secure for Spain membership of both NATO and the European Community. When that was taking place, I was able, with the assistance of my opposite Spanish number, Fernando Moran, to secure a foundational solution to the long-existing Gibraltar dispute. There was a signature on agreement for the reopening of Spain’s land border with the colony, which had been closed as long ago as 1969 by General Franco.
Those agreements laid the way for a proper solution of the sovereignty of the colony. At that time, Anglo-Spanish relations were greatly enhanced by that understanding. By 1988, each of the two monarchs was able to make a state visit to each other’s country, and Margaret Thatcher herself paid a successful visit to Madrid. With all of that sensible conduct of removing the historic obstacle, is it not now time for the Spaniards to be reminded of their undertaking?
Baroness Warsi
My noble and learned friend makes an incredibly important point. He is right—there have been long periods of good co-operation and real progress on this issue. Indeed, until 2011 the trilateral process—the forum for dialogue between the UK and Spain, with Gibraltar as an equal partner—worked incredibly well. It is sad that, after the election of the Spanish Government in December 2011, Spain withdrew from that process. We have offered ad hoc talks as a way of moving this matter forward but eventually we would like to see a return to that trilateral process.
Lord Triesman (Lab)
My Lords, the events of the last couple of weeks—the fishing boat incursions, the border restrictions and the events yesterday with the Spanish naval vessels—demand of all sides of the House that we are very clear that the rights to their choice about nationality rest with the people of Gibraltar. That should be said, and said clearly.
I wonder if there is a view in the Government about whether the EU—of which, after all, both we and Spain are members—could help create some mutual modus operandi which would be beneficial to Gibraltarians while recognising their rights to their own nationality as they seek it. These diplomatic efforts need a place of focus. We can surely provide it.
Baroness Warsi
I hear what the noble Lord says. We have made this offer of ad hoc talks, which we think is probably the first stage where these discussions could take place. We are not entirely convinced that for some of the areas where the EU feels that it has competences where Gibraltar is concerned, it does indeed have those competences. As I said earlier, it would be right to return to the trilateral process where Gibraltar was an equal party to those discussions.
Start-up Loans
(10 years, 11 months ago)
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Lord Popat (Con)
With the leave of the House, I will repeat a Statement made in the other place today by my honourable friend the Minister of State for Business, Innovation and Skills.
“Across this House, since the great recession of 2008, concern has been repeatedly raised about access to finance, particularly for the smallest companies. The contraction in support for small and medium-sized business lending following the financial crisis led to a sharp drop in the growth of lending to and support for small businesses to finance growth.
All Members will recognise the story of the constraints facing aspiring entrepreneurs when it comes to accessing finance. These problems were a consequence of an overreliance on bank finance compared to international competitors, a hollowing out of business lending units in the big banks, too much concentration in our banking system, followed by the biggest banking bust ever faced in this country and the biggest bank failure in the world in 2008.
A calamity of this scale cannot be addressed by a single policy, so we have engaged since 2010 on a comprehensive programme of bank reform: splitting retail from investment banking; requiring greater capital; introducing a tax on leverage; introducing much stronger requirements to check that the people running banks are fit and proper persons, so we do not get the likes of Fred Goodwin and Reverend Flowers sitting atop our banks in the future; and we are introducing criminal charges for those who behave negligently in charge of big banks.
Those changes are part of a wider drive to change the culture of banking so that our banks serve the economy, rather than the other way around, but these reforms alone are not enough. To help companies access finance, we have introduced the first British business bank, have doubled the seed enterprise investment scheme and are expanding the enterprise finance guarantee schemes. Last year, we introduced start-up loans of up to £25,000 per founder, although more typically about £6,000, to help budding entrepreneurs access the seed capital to make their idea a reality.
Britain has for too long been a home of great ideas that are then commercialised and developed elsewhere. We want British business men and women to take brilliant British ideas and turn them into blossoming British businesses. The first start-up loan was made in September 2012, and from the start, growth exceeded expectations. More than a third of loans go to BME entrepreneurs, and more than a third to people previously unemployed.
In June this year, the Prime Minister announced that start-up loans would no longer be restricted to young people, so the age cap has been removed altogether. We are now seeing strong growth in the number of people over the age of 30 being helped to realise their full entrepreneurial potential with the mentoring and financial support of the programme. In August, we introduced specialised support to finance ex-military service personnel who want to start their own business within the start-up loans scheme.
I am pleased to announce that today we have made the 10,000th start-up loan. Mr Allen Martin, a Royal Navy engineer from Truro, is the 10,000th loan recipient of the programme. Allen joined the Royal Navy in 1991 as an engineer and mechanic. Working with helicopters, search and rescue, and commando forces, he served for 22 years in Bosnia, Kosovo, Iraq and Afghanistan. Having been medically discharged, Allen knew that he wanted to start his own business, so he applied for a start-up loan and founded Eclipse Property Cornwall. It will manage properties on behalf of landlords, renting them out and offering part or full management. Allen Martin has benefited from both the extension of start-up loans to all ages and the specialised support for our ex-service personnel.
Given the success of this targeted approach within the full age range, we are now going even further. I can tell the House that we are committing a total of £151 million to the scheme this year and next, with a goal of backing 30,000 new businesses by 2015. From 1 January, the Start Up Loans Company will specifically target priority groups: entrepreneurs over 50, NEETs and new mothers ready to return to the workplace, seeking the ability to manage their own time and commitments on their own terms.
Age UK estimates that one in five of those over 50 now work for themselves—a growing trend that accounts for the fact that 70% of the businesses that they start will last more than five years, compared with 28% of those started by young entrepreneurs. With the added support of mentors who understand modern media and marketing, new retail platforms and communications channels, start-up loans can help bring even more of those in that age group success. That is why I am tasking them to find the specialist providers who will make start-up loans a perfect fit for the older entrepreneur.
For NEETs, I know that Members across the House have seen just how valuable and popular these loans are proving in tackling youth unemployment. Working with the new enterprise allowance, start-up loans will now give specialist support to those who have been away from the workplace for a long time, who need strong and committed mentors with an understanding of what it is to start from a very low base. The Prince’s Trust has already demonstrated just how effective this approach can be, and much more can be done to create a targeted offer that creates the right conditions for those businesses to survive and thrive within the safe environment of start-up loans.
Finally, new mothers are also turning increasingly to self-employment. According to Mumpreneurs UK, self-employment for women is rising at three times the rate for men. So far, 37% of start-up loans have gone to women, and we want to do more to increase this. We will introduce specialised support for mothers seeking to start their businesses, juggling childcare and seeking flexible ways to turn business ideas into reality.
With a record business creation of 400,000 new businesses each year, record jobs, and a record 4.9 million companies in the UK, Britain is once again becoming an entrepreneurial beacon of the world. Our future prosperity rests on the entrepreneurial aspirations of the British people. This Government will not rest in our drive to support those who want to work hard and get on”.
My Lords, I commend the Statement to the House.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank the Minister for repeating the Statement made in the other place. I would also like to place on record the thanks of the House for the work that has been done by James Caan and the Start Up Loans Company to support people in setting up their businesses. It would be good also to record our congratulations to Allen Martin, the 10,000th recipient of start-up loans. Mr Allen is one of the first ex-servicemen to benefit from the Start Up Loans Company and we wish him well with his new venture.
Small businesses are the lifeblood of our economy. The £50 million that has been lent to 10,000 new entrepreneurs is an important token of that enterprise spirit that we know runs deep in this country. However, as we examine the performance of start-up loans in the context of the broader picture for the economy and small businesses, and the support available to start up, we agree with Mr Caan that there is still much work to be done. A key lesson from the start-up loans programme in so far as we have the results is that access to finance schemes is only as good as the infrastructure that supports them, and relies on a wider system of business support, mentoring and signposting. This is the very fabric of support now lacking in so many parts of our country in the absence of Business Link, after the abolition of the RDAs and with the deliberate impoverishing of local government, which had a good record on this issue under the previous Government.
This is borne out by the statistics that we are welcoming today. In every recession, there has been an increase in business start-ups. People faced with a flat job market and low demand for their skills will often look to create their own job by setting up a business. Desperation is not a bad motive for launching a firm, but does the Minister agree that where business support networks are strongest, as they are in London, it is noticeable that that is where there have been far and away the most loans to date? The statistics on the start-up loans scheme that the Government have released today suggest that some regions are missing out. Some 15% of the population live in London while 36% of the loans issued have been in London, and almost half in London and the south-east. Only 5% of the start-up loans have been issued in the north-east and 5% per cent in the south-west.
Can the Minister explain to your Lordships’ House why the scheme has not been delivered in a more consistent way across the country? What will he do to boost business support in the areas that are receiving the least of the start-up loans money? Will he comment on the fact that the successful Business Link scheme has not been replaced by anything meaningful to provide support not just for start-ups but for developing small firms around the country?
Is the Minister aware that James Caan is on record as saying that the support and mentoring available under the scheme was a more important part of the success of the programme than the loan itself? While providing finance to start-ups is important, mentoring also plays a crucial role in helping businesses get off the ground. Does the Minister share my concern that just 17% of those contacting the Government’s new mentoring portal did so in order to find a mentor? Can he do more in this area?
Start-up businesses need to have affordable premises. Given that many businesses now pay more in business rates than on their rent and that business rates have gone up by £1,500 on average in this Parliament, will the Minister say whether the Government will back Labour’s plans to cut and freeze business rates to help start-ups and save 1.5 million businesses across the country an average of £450? A cost that places burdens on new start-ups is rising energy costs. Under Labour’s energy price freeze, start-ups and other businesses will save over £5,000. Why do the Government refuse to take action to help reduce the crippling costs that start-up businesses face?
Alongside the start-up loans scheme, the Government announced the start-up spaces scheme to great fanfare almost two years ago. We were told then that over 300 government offices would be available for start-up businesses to use as premises, but to date just one has opened. Can the Minister explain why the scheme has not been delivered? Is it because the Government have not kept their promise to make the spaces available to start-ups? According to the statistics released by the Government today, almost two-thirds of start-up loans have gone to men. Given the failings that we have seen under this Government with the Aspire Fund that was set up to help women entrepreneurs and that made only five investments in 2011-12 compared to 127 in 2009-10, what steps are Ministers taking to ensure that there is more support available to women entrepreneurs?
Finally, providing help and support for start-ups is important, but thousands more small businesses across the country are struggling to get the finance that they need after the failure of the Government’s Project Merlin, credit easing and funding for lending schemes. According to the Bank of England, net funding to businesses has fallen by £14 billion in the past 12 months. While the £50 million that has been provided through the Start Up Loans scheme is welcome, it is but a drop in the ocean compared with the Government’s failure to get banks lending.
I failed to get an answer to the question I put to the Minister yesterday, so I encourage him to answer it now. It was about the British Business Bank, not RBS. My main point was that last week we learnt that the bank, announced in September 2012, had finally made its first investment of £45 million to two financial institutions: Praesidian Capital Europe and BMS Finance. I asked the Minister: when we will see funding flowing to the small and medium-sized businesses that need it, and when do the Government expect the British Business Bank to reach its target of £10 billion?
Lord Popat
My Lords, the noble Lord asked about lending 37% or 40% to London and not throughout the whole region. A large number of SMEs are based down south and up north, but it is for the whole region. To address this issue, we started a marketing campaign at the beginning of this month to make people aware of the different schemes available under the guarantee scheme. LEPs are now playing an important role in the regions in helping SMEs and making them aware of the different schemes available.
With regard to the business rate, it is currently frozen until April 2014 and the noble Lord must wait for the Autumn Statement in two weeks’ time to hear what the Chancellor has to say about it. We accept that it is a major issue for a large number of SMEs. Energy costs are being looked into by the Government at the moment. The British Business Bank has started. It consolidates a number of schemes within the Government. It will play a major role in lending new money. So far within those schemes we have private sector money and government money to the tune of £2.4 billion. The Government have injected a further £1 billion to do more lending to SMEs. The British Business Bank will play a vital role in helping SMEs and making businesses aware of the different schemes available within the Government. I hope I have covered all the questions asked by the noble Lord. If I have not, I will be very happy to write to him.
Earl Attlee (Con)
My Lords, I remind the House of the benefit of short questions to the Minister in order that he can answer as many as possible.
Lord Stoneham of Droxford (LD)
My Lords, the shortfall in business investment is the biggest problem facing the economic recovery. I welcome this announcement of increased support for small business loans but recognise that it is one of many channels required to stimulate investment in small business. I have three questions. Are the Government sure that enough is being done to mentor, support and help networking for business people to take full advantage of these schemes and are they doing their best to make these schemes as simple as possible? Are technical and further education colleges being made the focus for small business development and for courses on how these loans can be used and how specific small businesses can take advantage of them? As well as technical and further education colleges, universities should be involved in this as well. Are the banks, particularly the state-regulated banks, being pressurised to redevelop their local and regional systems and get back to their historic original role of helping local businesses?
Lord Popat
My Lords, on business investment, I am pleased to say that there is a return of consumer and business confidence in the economy. Bank lending to businesses is going up. In fact we had a large increase in gross domestic lending to businesses in the past 12 months, a lot more than we had in the early part of 2012. Although net lending has dropped compared with the peak of 2008, it has just started to increase, so there is some business confidence and that will help business investment, which will help our growth. As I mentioned yesterday, our growth forecast has gone up from 0.6% to 1.4%, which is good news. With regard to bank lending, we have a large number of schemes. Once again, we are marketing very strongly awareness of these schemes, which will enable a number of businesses to borrow money and grow further.
Lord Leigh of Hurley (Con)
My Lords, I speak as someone who started a business with exactly the same sum of money as Mr Martin raised so I am aware of the great difficulty in raising money for start-ups. To have a scheme such as this, which facilitates a new business, is really encouraging. I understand that 30 new businesses a day are being created by this scheme. Does my noble friend agree that not only is this wonderful for new businesses but the success of the business growth fund means that, as these businesses flourish, it is not just relief from debt and loans but equity injection which are being provided to enable these businesses to flourish and succeed?
Lord Popat
My Lords, it is pleasure to answer my noble friend’s question. He brings with him a wealth of experience both in business and in corporate finance. The business growth fund is a welcome initiative, with five or six clearing banks putting together some £2.5 billion to lend money to new and growing businesses. I imagine that it will do a very good job for special and medium-sized businesses, which can borrow money on the basis of venture capital. Therefore, we welcome the initiative. The good news is that not a penny of taxpayers’ money is involved in the growth fund.
Lord Empey (UUP)
My Lords, perhaps I may bring the Minister back to the third point made by the noble Lord, Lord Stoneham. Is it not the case that, the way that banks have been operating in recent years, the pendulum has swung from golf course lending to computer program lending and there is no balance between the two? Surely there has to be a regional and more local focus to understand the persons and the nature of the business for which funding is being sought. Is it not the case that the standard approach of banks of using the same computer system, whichever bank you go to, has to be broken up? The banks should focus more on localised issues, including pension funds such as local government officers’ superannuation funds. They should be encouraged to use locally collected money to benefit local business.
Lord Popat
The noble Lord makes a very important point. When I ran an SME I had easy access to my branch manager. To borrow money was not that difficult and the turnaround of applications was very quick. I agree with the noble Lord that we need to focus at regional as well as at local level. What is now happening is that a large number of clearing banks have a central office which does underwriting through computers. I am sure that servicing the customer at a local level will become more important. The good news is that we have brought competition into the banking world. Aldermore, Metro Bank and Cambridge & Counties all have branch managers, so a large number of SMEs can deal directly with the branch manager rather than having an application going to the central level. With the demand for money and banks hungry to lend more, I am sure that, given time, banks will surely set up a branch manager network. That was a successful model in the 1970s and 1980s.
Lord Bilimoria (CB)
My Lords, I congratulate the Government on the start-up loans scheme. It is an excellent initiative and I am delighted that the Minister, a fellow entrepreneur himself, is answering these questions from personal knowledge. I started a business from scratch. I know how difficult it was to raise those first few thousand pounds. To get my first overdraft of £7,500 was amazing. I see that the sums involve an average of £6,000. The average start-up loan is up to £25,000. I hope that the Government will increase that figure because the bigger it is, the better the start-up. I notice that the Prince’s Trust is one of the delivery partners. Can the Minister confirm what the effect of this scheme has been on the Prince’s Trust, which has done excellent work in this area over the years? Is it actually giving out more money as a result of start-up funds in the scheme or less? Secondly, what are the Government doing to help the people who get these loans go on to get the further funding that they need? This is only the start. The Government’s small firms loan guarantee scheme is excellent. How many of these start-up loan recipients have gone on to government-guaranteed schemes, which are absolutely essential? Finally, are the Government encouraging this group of entrepreneurs to network in the future, creating environments and events that these people can attend so that they become a community and the Government can identify the high-growth companies which will be creating the jobs that will power this economy ahead?
Lord Popat
My Lords, we will remove the age limit. The limit on lending is £25,000 for a period of five years, at a 6% interest rate. We will look at this over a period of time once we have looked at the success of the scheme. The scheme is proving to be successful. There are a few examples, which I have in my folder here, of people who have traded very successfully, done well and gone to the clearing banks to borrow more money to make sure that their businesses grow. The people who participate in the Prince’s Trust are actively encouraged and are quite often mentored free of charge to help them set up their own businesses.
Lord Brooke of Alverthorpe (Lab)
My Lords, the noble Lord expressed a hope that banks may be persuaded to return to their former glory, when they operated at local level and were very much available for local businesses. Will he tell us what the Government intend to do to make that a reality? The reality is that in many areas the banks have loads of money to shell out. I recently purchased a new kitchen. At the end of the exercise, after having decided how much I was going to spend, I was asked, “But aren’t you going to take the interest-free loan?”. I had no intention of taking the interest-free loan for 12 months, but it was offered to me, so I took it. Therefore, Barclays has stumped up all the cash, which has immediately gone to the German manufacturer that produced the kitchen. There had been no question at all about any difficulty in paying. Interest-free loans are being offered all over the place. Perhaps we should have a look at what is happening with interest-free loans, where the money that comes through interest-free loans goes, who the beneficiaries are, and why the banks are not lending it to our SMEs and to our real start-up people, who we need.
Lord Popat
My Lords, it is not under the Government’s control to insist that banks have branch networks or branch managers at branches throughout the country. However, given time, with competition being put in place, this will happen—they will have no choice. If they really want to lend money and understand the local business and local businessmen, they will have to have a local branch network. On interest-free loans, I do not have information in my briefing but I will be very happy to write to the noble Lord on where that money comes from and how someone is able to give interest-free loans. Perhaps the people who sold those goods to the noble Lord are offering the loan themselves from the profit they made from the goods that were sold. However, I will certainly write to the noble Lord.
Baroness Wheatcroft (Con)
My Lords, I applaud these steps that are being taken to encourage new businesses. I hope that some of them might go into making kitchens so that the noble Lord opposite might be able to buy British in the future. However, other noble Lords have remarked that it is important that companies should have access to advice as well as to money. Does the Minister agree that the Government inherited so many different advice schemes that the forest is impenetrable and that no entrepreneur has time to wade through it? Surely the sensible thing to do is what I believe the Minister is doing, which is first of all to simplify the advice schemes that are available.
Lord Popat
I thank the noble Baroness for her question. Yes, we inherited a large number of different schemes and advice schemes from the previous Government. We have looked at them and have come up with new ones as well. However, these schemes are all being consolidated under the new British Business Bank. I hope that it will be able to deliver good advice to its customers.
Baroness Cohen of Pimlico (Lab)
My Lords, does the Minister agree that while loans are quite a good way to start a business, what you really need is some equity? With all the money borrowed it is hard work starting a business, and very few of us do that. This is an area where I know he agrees with me. Would he like to describe what steps we are taking to encourage equity investment in some of these small start-up businesses? We used to have something called 3i, which was a very potent and useful source for small businesses, and there are various government schemes. However, they have more or less lost themselves. When we both sat on the committee on small businesses and exporting we discovered that we are unique in Europe in that so many of our small businesses—indeed, businesses of any size—are financed by bank lending. Businesses in most other countries are financed much more largely by equity investment. Can the Minister describe what, if anything, is being done to encourage this?
Lord Popat
My Lords, equity finance becomes very attractive and desirable to a large number of medium-sized businesses, but equally to small businesses that want to grow. We have a number of government schemes on equity finance but we also have a new set-up called equity growth funding run by HSBC and four other clearing banks. That is really helping. In fact, they had their first case up north under that scheme. That £2.5 billion available to lend on an equity basis will make a huge difference to a number of SMEs, but we have government- backed schemes as well on equity finance.
Anti-social Behaviour, Crime and Policing Bill
(10 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Earl Attlee
That the House do again resolve itself into a Committee on the Bill.
Baroness Smith of Basildon (Lab)
My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?
Lord Ahmad of Wimbledon (Con)
My Lords, as with the Opposition, we have also seen all the amendments and have been working through them. They have been tabled and agreed for debate; that is the programme that is scheduled for today. I know that the noble Baroness appreciates the challenges of the number of amendments we have on this Bill, and we wish to make progress.
Baroness Smith of Basildon
I am sorry. I understand the need to make progress. The Minister will know from the amendments we have tabled and our contributions to this debate that we agree with him in seeking to make progress. I am, however, questioning whether it is right to table amendments and notify some Members of your Lordships’ House—not all—at 6.03 pm for debate on the following day. That seems completely inappropriate. As we are speaking, I am trying to go through all the amendments to ensure that we have a response and can fully consider them. This House prides itself on scrutiny, but this does not leave us the opportunity to scrutinise adequately these amendments tabled by the Government.
Lord Ahmad of Wimbledon
Again, I say to the noble Baroness that anyone who has been in the previous days of this Committee would not doubt for a moment that the House has been very careful in its scrutiny of the Bill. That is reflected in where we currently are in the progress of the Bill. As I said, these amendments have been tabled and we, as the Government, have looked at them. We look forward to the debate and the scrutiny that will take place of them.
Baroness Hamwee
(c) the respondent is aged 18 or over”
Baroness Hamwee (LD)
My Lords, I will also speak to Amendment 21G. The first of these amendments takes us to Clause 12, which is the clause giving power to exclude a person from his home in the case of violence or the risk of harm. This power can be included in an IPNA—in the injunction—if two conditions are fulfilled. The first is that the anti-social behaviour giving rise to the application for the IPNA amounts to violence or the threat of violence and the second is that there is a significant risk of harm from the respondent. My first amendment provides for a third condition, namely that the respondent is aged 18 or over. It seems to me a very severe sanction to exclude anyone from his home. I accept that this power is to be in response to a “significant risk” or behaviour, but if it is so significant as to justify such an action, are there not other courses of action that might be open to be taken? It is not required by the statute to link any of these provisions with a course of treatment or rehabilitation, as one would hope to see in many cases, and particularly that of young people.
The Bill is quite properly focused on the victim; we see that not just in the drafting of the Bill but on almost every page of the draft guidance, with which your Lordships have been provided. But I suggest to the Government that while excluding somebody from his home may mean the immediate protection of the victim, the longer-term protection must be rooted in addressing the victim’s long-term behaviour. Of course, excluding somebody from his home does not mean that he will not meet the victim somewhere else. So I am particularly concerned about this in the case of young people. I wonder, too, what the local authority response would be. Would it have obligations if a person under 18 found himself suddenly homeless?
In the Commons, the Minister referred to the guidance, making it clear that,
“the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate”.—[Official Report, Commons, 14/10/13; col. 543.]
That applied especially to the respondent’s Article 8 rights. It is one thing to issue guidance to local authorities—and I do not, of course, speak for the judiciary—but it is another matter to issue guidance to the courts. I have very considerable doubts as to whether it is right as a response to an IPNA, in the absence of something else justifying this, to allow this at all. I am hoping that there must be some explanation as to whether this cannot be done through any other relevant measure.
Amendment 21G is also about under-18s. I accept that suggesting that there may not be an injunction unless the police have talked to the respondent and his parents or guardian to discuss the behaviour and the respondent has been given an,
“opportunity to enter into an agreement as to future good behaviour”,
sounds a bit “Dixon of Dock Green”—perhaps a bit “Evening, all”. But it comes not from that but from provisions in the Republic of Ireland, which have been drawn to my attention—and from a concern previously expressed by the Home Affairs Select Committee in the Commons, whose report recommended that the legislation should not permit IPNAs to be used against young people unless supportive and informal interventions have failed. I can hear the Minister saying “guidance” to that.
In the Republic of Ireland, there is similar legislation but the courts are permitted to impose a behaviour order, which is their version of the IPNA and ASBO, against children aged 12 to 18 only after a senior police officer has held a meeting with the child and the parents or guardian, and when the child has been warned about behaviour and given the opportunity to sign a good behaviour contract—and, of course, to abide by it. I understand that in the past five years in Ireland the authorities have issued more than 2,000 behaviour warnings and 15 good behaviour contracts but only three behaviour orders to those under 18. I suggest that that is a successful way in which to go about the matter. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I thank my noble friend Lady Hamwee for these amendments, which give me an opportunity to explain more fully how those responsible for young people and young offenders can work together. In Amendment 21D, my noble friend is right to highlight the impact that something like exclusion from the family home could have on a young person. It is worth reiterating here that the power to exclude is available only when a much higher test of violence or significant harm to others is met. As such, it is a power that is rarely used in the context of the current anti-social behaviour injunction and we expect that it will rarely be used with the new injunction. This is especially true with young people. There are a number of examples where young adults have been excluded from a family home because of the reign of terror they have created. However, I sympathise with the point my noble friend raises and I would like to consider it further, without commitment, ahead of Report. In doing so, I would want to consult with front-line professionals on this point.
Clearly, if the provision remained as it is and the court were to decide to exclude someone under the age of 18 from the family home, it would also have to consider what additional support, such as accommodation, would be necessary to make it possible. There would also be a duty on local authorities to consider what support they are obliged to offer to the young person in such circumstances. However, there may be situations where, for the benefit of victims, alternative accommodation —with other family members for instance—could be in both the young person’s interest and that of the community. I should add that there may be cases where a 17 year-old respondent lives alone and where exclusion may be an appropriate response to his or her threatening behaviour.
The local youth offending teams will also have a role in the process of applying for an injunction against a young person and will provide a balanced and considered input early on, so I am not persuaded that simply preventing exclusion in all cases where the respondent is under 18 is necessarily the right answer. That said, if my noble friend is content to withdraw this amendment, I will return to the subject on Report after further consideration.
Amendment 21G seeks to put in the Bill a requirement for agencies to use informal approaches against under-18s before resorting to more formal measures to stop or prevent their anti-social behaviour. Early and informal approaches can be successful in stopping anti-social behaviour committed by the majority of perpetrators, including young people. I agree that when dealing with young people, informal interventions should be considered first in most cases as they can help stop bad behaviour before it escalates. Our draft guidance reminds professionals of the importance of considering informal measures in the first instance. Informal approaches could include acceptable behaviour contracts or, as they are sometimes called, acceptable behaviour agreements. These contracts can be an effective way of dealing with anti-social individuals, especially where there are a number of problem behaviours. They can also be very effective at dealing with young people early, to nip problem behaviour in the bud before it becomes more serious.
However, more formal measures must be available in the minority of cases where informal interventions are not appropriate. I am reluctant to restrict professionals in the way the amendment suggests because they need to have the flexibility to respond in all situations. There are, however, safeguards to ensure that injunctions are used appropriately. Before an application against an under-18 is made, the applicant must consult with the local youth offending team. This will ensure that the youth offending team is involved at the earliest stage in the process. They can give their expert views on whether an informal intervention would be more effective in dealing with the anti-social behaviour, rather than the more formal power in the form of an injunction.
In addition, before an application for an IPNA against those aged under 18 is made to the court, the applicant must,
“inform any other body or individual that the applicant thinks appropriate of the application”.
We would of course expect this to include the young person’s parents or guardians. As I have said, we would expect that in most cases professionals will look to informal measures first, but these provisions act as a safeguard to ensure that they do not automatically move to seeking an injunction, and that the youth offending team is involved in finding a solution to the young person’s behaviour.
I hope that I have explained how the Bill will ensure that the needs of a young person will be assessed when agencies are considering applying for an IPNA against that young person. I hope, too, that my noble friend understands why I do not think it would be necessary to put provision for good behaviour warnings in the Bill. I hope that she will withdraw her amendment on the understanding that I will consider the matters she raised.
Lord Hope of Craighead (CB)
Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?
Lord Taylor of Holbeach
We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.
Baroness Hamwee
My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.
My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser (Lab)
My Lords, we have tabled amendments 21E and 21F to seek to clarify the effect of changes made to Clause 12 on Report in the House of Commons. As I understand it, the effect of those changes is that the ability to exclude a person who is the subject of an injunction under Clause 1 from the place where he or she normally lives in cases of violence or risk of harm can now apply across all tenures, including owner-occupiers, and not just the social housing sector, as I think was originally proposed. Will the Minister confirm whether that is now the case?
If Clause 12 now applies across all tenures equally, what powers are now given under Clause 13 that apply only to someone with a tenancy agreement but do not apply to someone normally living in owner-occupied property who is also the subject of an injunction under Clause 1? One would have assumed that all tenures were now being treated equally but I take it that Clause 13, by its very wording, does not apply to a person in owner -occupied property. If there is still a difference in the powers available under Clauses 12 and 13, depending on the form of tenure, will the Minster say what those differences are and why they are necessary? Will he also say whether Clause 13 applies to the private rented housing sector or to just the social housing sector? Presumably the private rented housing sector is now covered by the changes made to Clause 12, so if a private sector housing tenant is not covered by Clause 13, in which ways does it mean that someone in social housing accommodation is being treated differently from someone who is a private sector housing tenant and who is also the subject of an injunction under Clause 1?
Amendment 21F would give local authorities extra flexibility in tackling anti-social behaviour in the private rented housing sector when private landlords refuse or are unwilling to act. It would be helpful to have the Minister’s comments.
Finally, under Clause 12, the injunction may exclude the respondent from the place where he or she normally lives. Under Clause 13, the tenancy injunction may include a provision prohibiting the person against whom it is granted from entering or being in any premises or any area specified in the injunction. What is the reason for the difference in wording apparently based on form of tenure?
Lord Ahmad of Wimbledon (Con)
My Lords, I totally understand the noble Lord’s concern that anti-social behaviour powers in this Bill should be, as far as possible, tenure-neutral. He is quite correct that this came up during the debate in the other place and Clause 12, which provides for exclusion, is now tenure-neutral following amendments made on Report in the Commons. Of course, it is of no consequence to the victims of such behaviour that the perpetrator is a tenant of social housing, in the private rented sector, or is indeed an owner-occupier. What matters is that action can be taken.
Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. For the most part, the housing injunction can be used in the same way as an injunction to prevent nuisance and annoyance. However, it makes the express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person and this constitutes a breach of the tenancy agreement. Such behaviour could be committed by a visitor or lodger, for example. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.
I assure the noble Lord that we are satisfied that Part 1 already enables the police, a housing provider or a local authority to apply for an IPNA to prevent a person allowing, inciting or encouraging someone else to engage in anti-social behaviour. It can be used in this way not only against tenants in the social and private rental sectors, which are the sectors that these amendments are concerned with, but against owner-occupiers. Given that, we do not need to extend the tenancy injunction provisions to cover a wider category of persons, as these amendments seek to do.
I also assure the noble Lord that Clause 13 applies to anyone who has a tenancy agreement with a local authority or a social landlord, so it does not cover the private rental sector.
Based on the assurances that I have given in terms of the extension and the provisions that were discussed in the other place, I hope that the noble Lord is content to withdraw his amendment.
Lord Rosser
I am still not entirely clear what the position is in the light of what the noble Lord has said. As I understood it, he seemed to be at some pains to say that the content of Clause 13 is also covered by Clause 12 because the police, or somebody making the application, would have the powers to make that application in respect of somebody in the private rented sector, or presumably even an owner-occupier, who was,
“allowing, inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”.
I think that that is what the noble Lord was seeking to tell me. That wording appears in Clause 13 in relation to tenancy injunctions but it does not appear in Clause 12, although the Minister is seeking to say that that is what Clause 12 actually means. Therefore, if owner-occupiers and the private rented sector are covered by Clause 12, why do we need Clause 13 to put in different wording for a tenancy injunction when the noble Lord is apparently seeking to say that that is already covered in Clause 12?
In my contribution, I drew attention to Clause 13(3), which says:
“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,
so it clearly covers premises other than where the person normally lives, but the subsection goes on to say that it could also apply to,
“any area specified in the injunction”.
Do the terms of Clause 13(3) apply also to owner-occupiers and the private rented housing sector or are we treating differently people in the social housing sector who may have one of these injunctions and who it is proposed should be excluded? Are the people concerned in the three different types of tenure all being treated equally or is there something different in this for the tenant of social housing accommodation? If there is no difference and it is all covered by Clause 12, why do we need a separate Clause 13?
Lord Ahmad of Wimbledon
I repeat that as far as the first clause is concerned, the intention is to be tenure-neutral. As I said, we have considered the discussions that took place on Report in the House of Commons and have made appropriate amendments. I also repeat that the specific purpose of a tenancy injunction is to capture behaviour where a tenant has breached, or it is anticipated that they will breach, their tenancy agreement by engaging, or threatening to engage, in anti-social behaviour. We have tried to cover all elements in both clauses. As I have said before, it does not matter to the victim whether the perpetrator is a tenant of social housing or in the private rented sector. What matters is that action can be taken, and Clause 12 covers that.
Lord Rosser
With great respect to the Minister, I do not think that he has explained why Clause 13 is necessary. He keeps saying that Clause 12 is tenure neutral. If it is tenure-neutral, it covers social housing tenants as well as those in the private rented sector and owner-occupiers. Therefore, why do we need Clause 13? He refers to Clause 13 relating to anti-social behaviour, but Clause 12(1)(b)(i) also refers to anti-social behaviour. It also refers, in subsection (1)(b)(ii), to,
“a significant risk of harm to other persons from the respondent”.
The Minister has not addressed another question that I asked. Clause 12 refers to,
“excluding the respondent from the place where he or she normally lives”,
but in Clause 13, which covers tenancy injunctions, a prohibition can apply to,
“any premises specified in the injunction (including the premises where the person normally lives)”.
I therefore repeat that the provision envisages that the scope can extend beyond the premises where the person lives. There is also a phrase about preventing a person,
“from entering or being in … any area specified in the injunction”.
Is the Minister saying that the terms of Clause 13(3) are also included in Clause 12? He cannot have it both ways. He cannot say that Clause 12 covers all forms of tenure and then say that he still needs Clause 13.
Lord Ahmad of Wimbledon
I can only repeat what I have already said: Clause 13 makes special provision for tenancy injunctions so as to preserve specific powers in housing legislation. In this case, it also makes an express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person. This constitutes a breach of their tenancy agreement. As I said earlier, such behaviour could be committed by a visitor or a lodger. The reason for Clause 13 is that front-line professionals value this power. That is why we seek to retain it.
Lord Rosser
Why is it not equally important that the provision about,
“inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”
should apply to the private rented housing sector, and to owner-occupiers? Is the Minister saying that only somebody in social housing might incite or encourage others to engage or threaten to engage in anti-social behaviour, and that that would not apply to the private rented sector or to owner-occupiers? Of course it applies there, too. This is not tenure neutral. If it were, Clause 13 would not be needed.
Lord Ahmad of Wimbledon
My Lords, either I am failing to comprehend totally what the noble Lord is saying, or vice versa. I am listening very carefully to what he is saying, but, rather than repeating myself, I think it would be in the best interests of making progress if I wrote to him about this. I hope that he has been reassured by some of what I have said, and by the commitments and assurances given by the Government. On that basis, I again ask him to withdraw his amendment.
Lord Rosser
Obviously, I accept that the Minister will, without any commitment, have another look at this and write to me—which presumably will require him to reflect on everything that has been said before his reply is signed and sent. On that basis I will withdraw the amendment. However, I put to him again this simple question: if he is arguing that Clause 12 is tenure neutral, why does he need Clause 13? I beg leave to withdraw the amendment.
Lord Rosser
“( ) Within a year of this section coming into force, the Secretary of State shall review the length of time taken by consultations under this section with local youth offending teams.”
Lord Rosser
We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.
I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?
Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
Baroness Hamwee
My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.
We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,
“the local authority for the area where the respondent resides”,
meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.
Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.
The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.
Baroness Hamwee
My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.
Lord Ahmad of Wimbledon
In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.
Lord Rosser
I certainly will withdraw my amendment but can the Minister respond to two of the questions I asked? Can the youth offending team oppose an application for an injunction under Section 1 for someone aged under 18 and can it oppose it in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
Lord Ahmad of Wimbledon
The youth offending team cannot actually veto an application. If it objects to a particular application, we expect further dialogue to take place on what it has submitted, but that does not mean that the process should be dragged out unnecessarily.
Lord Rosser
I accept that the team cannot veto it, but my question was: if it does not agree with it, can it oppose it in court? When the thing goes to court, will it be necessary for the court to be told of the outcome of the consultation of the youth offending team and the view of the youth offending team?
Lord Ahmad of Wimbledon
This is a specific issue. As I said, I would expect that the court would consider all consultations that had taken place and advice that had been received in considering this element. Certainly, the intention in providing for these orders would be that the youth offending team had a central role. It would also be represented in court. If there were an occasion where the team felt strongly enough, yes, the short answer is that it would be represented at the court hearing if it thought that its issues were not being considered in the right way.
Lord Rosser
I thank the Minister for his response to the question and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.
My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.
We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.
We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.
In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.
Lord Hope of Craighead
I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?
It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.
Lord Paddick (LD)
My Lords, I speak from personal experience of dealing with the previous regime under ASBOs. There was a tendency among some local authorities to publicise how many ASBOs they had been granted by publishing a rogues gallery of photographs of people against whom ASBOs had been granted. This was done for political purposes, not to pursue the ends of justice. Some young people thought that having an ASBO against them—or, in this case, an IPNA—was a badge of honour that they could show off to their mates. They were young people with a juvenile attitude. It almost encouraged them to breach the ASBO because their picture had been publicised and they had local notoriety. There is a danger that this provision could make what was a very unhelpful situation under the previous regime even worse.
Baroness Linklater of Butterstone (LD)
My Lords, I endorse that and remind the House that when ASBOs were first considered under previous legislation, that worry was aired at some length in this Chamber. Things could go either way. Either you could have it as a badge of honour or it could be a mark that affected a young person or child’s life considerably. Either way, publicity had little to offer that was positive or helpful.
Baroness Smith of Basildon
My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.
The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.
It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.
Lord Taylor of Holbeach
I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.
As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.
My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.
There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.
Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.
However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.
It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.
My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.
I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:
“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”
Baroness Smith of Basildon
Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?
Lord Taylor of Holbeach
The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.
Baroness Smith of Basildon
This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?
Lord Taylor of Holbeach
The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.
Lord Deben (Con)
I hope that my noble friend will stick hard to this, because one of the issues that most affected one in a very long life as a constituency Member of Parliament was the number of people whose lives had been made absolutely intolerable by activities of this kind. It is important that we stick to this in the way in which he has proposed.
Lord Taylor of Holbeach
I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,
“we are happy to leave the decision not to name a young person to the discretion of the judge”.
We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.
For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.
Lord Hope of Craighead
I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My attention is drawn by my noble and learned friend Lord Walker to paragraph 123 of the Explanatory Notes, which indicates that, even though you are getting rid of Section 49, you are left with the discretion under Section 39 of the same Act. Paragraph 123 states:
“However, section 39 of that Act does apply to these proceeding and gives the court the discretion to restrict the publication of certain information in order to protect the identity of the child or young person, for example: his or her name; address; school, etc”.
Therefore, with great respect to the Minister, his answer lies in Section 39.
Lord Taylor of Holbeach
I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.
Baroness Hamwee
My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.
The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.
Lord Marlesford
“Part 1ALittering from vehiclesCivil penalty for littering from vehicles
(1) A littering contravention in relation to a vehicle occurs when a person inside the vehicle acts in contravention of section 87 of the Environmental Protection Act 1990 (offence of leaving litter).
(2) A civil enforcement officer may impose a civil penalty if a littering contravention under subsection (1) has taken place.
(3) The registered keeper of the vehicle shall for the purposes of section 87 of the Environmental Protection Act 1990 be treated as knowingly causing the littering contravention whether or not he gave any instructions for this to be done and shall be the recipient for a civil penalty under subsection (2).
(4) A civil penalty is not payable under this section by the owner of a vehicle if that vehicle is—
(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;(c) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles);and the person acting in contravention under this section is a passenger in that vehicle.(5) The amount of a civil penalty under subsection (2) is to be specified in regulations.
(6) The procedure for imposing a civil penalty on a person and for recovery of costs is to be set out in regulations.
(7) The regulations must, in particular, require the responsible authority to give the person written notice specifying—
(a) the amount of the penalty, (b) the reasons for imposing it, and(c) the date by which and manner in which it is to be paid.(8) Regulations may—
(a) give a person on whom a civil penalty is imposed a right to appeal against the decision to an adjudicator;(b) specify the grounds on which a person may request an appeal;(c) specify the time within which a person must request an appeal;(d) make provision for and in connection with the appointment of adjudicators;(e) make further provision about appeals (including provision as to the powers available on an appeal).(9) The registered keeper of the vehicle for the purposes of this section shall be taken to be the person in whose name the vehicle was registered under the Vehicle Excise and Registration Act 1994 at the time of the contravention.
(10) A civil enforcement officer under this section must be—
(a) an individual employed by the responsible authority, or(b) where the authority has made arrangements with any person for the purposes of this section, an individual employed by that person to act as a civil enforcement officer.(11) A vehicle for the purposes of this section is a motor vehicle as defined in section 185(1) of the Road Traffic Act 1988.”
Lord Marlesford (Con)
My Lords, in proposing the new clause in Amendment 22 to provide a new civil penalty for littering from vehicles I seek to insert part of my Private Member’s Bill, which was extraordinarily enthusiastically endorsed by the House, excluding the Minister from Defra, at Second Reading on 19 July. Eight speakers from all sides of the House were good enough to come in on that summer Friday to support it. Since then I have received two placebo letters from Ministers, one from my noble friend Lord De Mauley and the other from my noble friend Lord Taylor. In a sense, they both said the same thing. They both say—this is more or less a quotation—that the Government share my frustration with the problems of roadside litter. I suggest that Governments are not elected to share the frustration of electors. They are elected in the hope that they will deal with the cause of the frustration. We want action rather than words, and I am offering a rather simple form of action to help them.
I wish to replace the criminal offence of littering from vehicles, which does not work, with a civil offence, which would work. The criminal offence does not work because it is necessary to prove who threw the litter from the vehicle. My civil offence would make responsible the keeper of the vehicle from which litter is thrown. It would impose a small fine, which he or she could pass on to whichever person in the vehicle threw the litter, in exactly the same way as if somebody borrows my car and parks it where they should not I get the parking fine. That is not a criminal offence, and it is the right way to do it.
My noble friend Lord De Mauley, in his letter to me dated 16 September, rather surprisingly suggested that:
“Such an approach clearly raises questions of proportionality and civil liberties”.
I would have thought that it did the reverse. He goes on to say:
“Littering is an unnecessary and antisocial behaviour … Littering from vehicles, particularly moving vehicles, is a dangerous form of littering”.
He gets quite excited, because he goes on to say:
“The maximum fine which can be imposed on an individual convicted for littering is £2,500, which is clearly large enough to have an immediate effect on the financial situation of many individuals. Moreover, criminal convictions can result in higher insurance premiums or, in some cases, refusal of insurance. Unspent criminal convictions, including those for littering, also of course show up on any criminal record check carried out by a prospective employer, and must also be declared when applying for visas for travel to certain countries”.
That is a bit of a sledgehammer; I believe that my rather modest little proposal would be effective. The point about the sledgehammer is that not only is it not actually used, but it really is virtually impossible to use it. I hope that the Government, after this long period that we have waited—we have been discussing this for some while—could take some action.
My noble friend Lord Taylor wrote a very nice letter to me, in which he says:
“I recognise that it can be difficult for local authority enforcement officers to identify the offender when littering takes place from a vehicle, but providing for a civil penalty to be issued to the registered keeper … would … risk sending a message to the public that littering from vehicles is less serious compared to other littering”.
Yes, of course it is less serious. My noble friend Lord Goschen is about to introduce an amendment about the much more serious matter of fly-tipping. There is no comparison.
All these things are a matter of degree. We are fortunate in having several noble and learned former Law Lords in the House; I hesitate to say anything about the law because one knows nothing about it compared to everybody else here, but surely, proportionality and all that is very important. That is why I am hoping that the Government will recognise that something should be done about this problem.
Recently, my honourable friend Mr Dan Rogerson was given a new responsibility for the waste portfolio in the Government. He wrote to the waste sector saying that the Government was going to focus on,
“the essentials that only Government can and must do”.
He is putting forward,
“a limited programme of work on waste prevention, focusing our attention on the areas where action is clearly for Government”.
That fits in rather well with what I am proposing.
Since I have taken an interest in these matters, I have been on the close look-out when I have travelled. Certainly, in three countries in Europe this summer, in Arizona in the USA and last week in Hong Kong, I was very struck by how astonishingly clean they all were compared to Britain. It is really rather shocking that not only are we the way we are, but the Government are not enthusiastically supporting the measure I am suggesting or—which I would be perfectly happy with—proposing something better. I hope it will happen. I beg to move.
Viscount Goschen (Con)
My Lords, I support my noble friend Lord Marlesford’s amendment, which largely reflects a Private Member’s Bill that the House discussed a while ago. It seems an eminently sensible measure and I look forward to a similarly positive and supportive reply from the Minister. My Amendment 22AA, which is grouped with that of my noble friend, deals with a different issue at the other end of the waste scale: it is to do with fly-tipping.
Fly-tipping is the deliberate, planned commission of a criminal act by the illegal dumping of waste. This is a crime which blights rural areas, including the one in which I live; if I therefore have an interest, I am more than happy to declare it. The scale of the situation is scarcely credible. In 2012-13, according to statistics produced by Defra, there were 711,000 incidents, or crimes, at approximately 2,000 per day. I do not believe—and perhaps my noble friends can correct me if I am wrong—that that includes fly-tipping on private land, and private farmland in particular, which is an increasing phenomenon. That is a great deal of criminal activity but, in the same statistics pamphlet that the department has produced, there is an equally startling statistic. In the same period, only 2,200 prosecutions were undertaken. Another way of looking at it is that only crimes committed approximately on the equivalent of one day per year were brought before the courts. The odds are nowhere near sufficient to deter either the one-off or the serial offender.
Lord James of Blackheath (Con)
My Lords, I support my noble friend Lord Marlesford on his amendment, but I wish also to make a small criticism of it—that it is lacking in focus. While it deals with the issues of litter very effectively, it does not go far enough in addressing the issues of offensive behaviour in cars and other moving vehicles, which is increasingly prevalent among young people.
I cite the example of recent Saturdays, when we have had the rugby at Twickenham. I have made endless attempts to convince my wife that rugby is a respectable pastime and not the equivalent of being found in bed with a supermodel on a Saturday afternoon, as she has often thought—although, given the way in which England have played recently, it is a good alternative. However, I persuaded my wife to come to Twickenham with me on each of the last three Saturdays and she was totally horrified at the sight of the school buses coming down the road full of children indulging in a pastime which is, I believe, called mooning. I am not going to explain it to your Lordships because we are in mixed company, but the sight of some 40 children mooning simultaneously is not a pretty one. My wife is a youth justice officer and as she watched the police motorbikes zooming past these kids, giving them a friendly wave, she said: “We have a law against this sort of thing. Why are they not being brought into court? I would put them away for a year if I got them.”
There is an omission in the amendment tabled by my noble friend in that it does not deal adequately with the bad behaviour that can come out of vehicles and interfere with others. That was one example, but there was another this week of which your Lordships should be aware. In its wisdom, the Times—I am sorry that the noble Lord, Lord Finkelstein, is not here to take down this message—is pursuing, to a ludicrous degree, the cause of cyclists to the point where they are creating a new and separate society in London, in which cyclists think they have a superior law and control over everybody in a motor car. This is going to lead to some catastrophic accidents very soon. On three mornings, driving up the A3 in the Balham and Clapham area, I have seen cyclists put their cycles up against the central reservation—not the line where the bus lane is—stand in the middle of the road with a camera and defy you to run them down while they photograph you doing it. That is what they are longing for. We need to have that sort of behaviour excluded because it is going to lead to their demise and our prosecution: it is ridiculous. I support the amendment, but it needs to go a little further.
Lord Crickhowell (Con)
My Lords, one step at a time. I am going to let my noble friend’s suggested change to the amendment pass by for the time being. However, I have a great deal of sympathy for both these amendments. I will concentrate on my noble friend Lord Marlesford’s amendment. I have now moved from my home in a national park, but I have always been horrified by the casual way that, in one of the most beautiful valleys in the countryside, people throw drink containers out of the windows of their cars as if that was a normal and natural thing to do. I am almost equally horrified—frustrated, indeed—by the attitude described by my noble friend as coming from Defra. I am not entirely surprised that it comes from officials: I am horrified that it has come in the form of letters from my noble friends who I have always regarded as thoroughly practical, sensible and wise people. I hope that my noble friend Lord Taylor will show that I am right in that respect when he responds to this debate.
The condition of our roadsides is really appalling. It is a very long time since I served in Lady Thatcher’s Government, but I well remember her returning from an overseas trip and expressing horror and consternation at the state of the road from Heathrow to London given the litter that was there, compared to the roadsides she had observed in the places she had been visiting. This was, I am afraid, one of the occasions when she did not do anything and here we are, 30 or more years later, and nothing effective has been done.
My noble friend described the comments from a Minister about the strength of the legal system and how, if you have a tough law and all the awful penalties he described, people were likely to take notice of it. I have to tell him that it is not only the hooligans and the ignorant who ignore the law. I well remember, when I was still a Member of Parliament for Pembroke, the president of my association—who had himself fought three parliamentary elections and was a distinguished local magistrate—telling me of driving back over the Preseli Hills from a magistrates’ meeting in Haverfordwest. He was horrified because someone in the car in front of him was throwing papers out of the window every few hundred yards. After he had driven for 10 or 20 miles and the confetti had been scattered along the roadside for a considerable distance, he decided to stop to see what the litter consisted of. He stopped, picked up the litter and discovered that it was the minutes of the magistrates’ meeting that he had just left. There you had a magistrate leaving a magistrates’ meeting who was so terrified of the law which my noble friend has described that he was taking no notice of it at all.
We have a very practical suggestion from my noble friend and it does not deserve the casual and rather absurd way that it has been treated so far by Defra. I hope that the Minister, if he cannot accept the amendment in exactly its present form, will tell the House that he will be prepared to discuss this whole matter in much more detail with his department in the hope that we can make some belated progress on this urgent problem.
Lord True (Con)
My Lords, this is the first time that I have intervened on the Bill. I should declare an interest as leader of a London borough council; indeed, it is the council that I now learn is the world’s centre of mooning. I should apologise to Lady James of Blackheath for the offence that was caused. I will try to avert my eyes when I next go to Twickenham.
I express my immense support for my noble friend Lord Goschen and his amendment. He is exactly correct to point out the scourge of fly-tipping and I hope that the Government will be supportive. Equally, I am extremely supportive in principle and in practice of my noble friend Lord Marlesford’s amendment. I am going to anticipate what I fear the Minister might say about it, in the hope of averting the risk that he will push it aside. There are issues of policing that local authorities would have to face with this. It is not as easy to identify a car from which a piece of paper has been thrown as it is to find a parked car of which you can take a photograph and stick it on the web, so that the person who has parked the car can see the offence that they have committed. The proposed process imitates the process for dealing with a parking offence, and will still have issues of proof and so on attached to it. I am sure that the Minister may well be tempted to say that. None the less, I am sure that there are ways in which, with a will, these kinds of problems could be overcome. I hope that my noble friend on the Front Bench will take it forward in a positive spirit.
I should add to what my noble friend Lord Crickhowell said about motorways, where the situation is appalling. Last time I went up the M1, I saw the astonishing investment by the Highways Agency in having ridiculously exaggerated numbers of cameras at the first few junctions. Millions must have been spent on them, the side notices and so on. Yet along the side of the road, totally neglected, were piles of litter. Something ought to be done by the Highways Agency to prioritise investment and deal with this problem, which is a terrible advertisement for our country along its main highways and which a small local authority is not by itself competent to deal with.
Baroness Smith of Basildon
My Lords, I find myself in complete agreement with the noble Lord, Lord Marlesford, and the noble Viscount, Lord Goschen, on this issue. It should not have been a surprise to your Lordships’ House that when we debated the Private Member’s Bill of the noble Lord, Lord Marlesford, there was enthusiastic—indeed, passionate—support for the objectives he put forward. If one talks to the public at large, they regularly raise the state of the streets and pavements, and the impact that has on their community. That is why both these amendments are so relevant to this Bill.
Noble Lords may be aware of the “Panorama” programme that my noble friend Lady Bakewell presented a few weeks ago, in which she was able to show the cumulative impact of litter on anti-social behaviour in a local community, and the pride otherwise taken by that community in how it looked and about whether that litter was cleared. At Second Reading, we were very pleased to support the Private Member’s Bill. I am not going to suggest, nor is the noble Lord, Lord Marlesford, suggesting, that every word in it was perfect; we would have welcomed the opportunity to debate it further in Committee. But if the Minister were able to take it away and look at the objectives that it is seeking to achieve, that would be very welcome.
On the issue of fly-tipping, one of the problems has been that so many local authorities have been forced into the position of cancelling their door-to-door collections of larger and bulkier items. While some people have tried to make alternative arrangements, some think it is easier to dump it in the car, drive somewhere and tip it out. Local farmers—and local authorities, as the noble Lord, Lord True, said—speak about the increasing costs that they incur in having to deal with fly-tipping and litter.
I have never been subject to mooning on the motorway—I am not quite sure whether that is within the scope of the amendment—but if an area looks bad then behaviour becomes bad as well, which is of great concern to many people on private and public housing estates across the board. I hope that the noble Lord can take away the serious sentiment that, by dealing with litter and fly-tipping, we would improve our communities and make them better places to live.
Lord Taylor of Holbeach
I could not agree more with the noble Baroness about the importance of behaviour regarding the environment. All noble Lords would join in that sentiment. I do see this as an ongoing debate on how Parliament, the Government, and communities as a whole can deal with what is manifestly a big problem. I am grateful, therefore, for the opportunity to debate these issues through the amendments tabled by my noble friends Lord Marlesford and Lord Goschen. My noble friend Lord Marlesford has come back on this issue following his Private Member’s Bill and the amendments that he made to previous legislation on similar grounds.
I shall address his amendment first. I know that littering from vehicles is something that he feels about passionately. I have been in the House when he has raised this issue previously and I also know that many noble Lords share his concerns, as I do myself. I consider it a source of considerable annoyance to see the roadside littered—if I may use the word—with discarded litter, discarded by people who do not seem to care about the visual and other impacts on the environment and other people’s neighbourhoods. Therefore, I come from a position of saying that littering should be treated seriously. My noble friend Lord Crickhowell is absolutely right. It is simply unacceptable to drop litter. Littering from vehicles can also present a danger by distracting or even injuring other road users or by obstructing the highway. Littering is anti-social and this is an anti-social behaviour Bill. It demonstrates disrespect for the community and it incurs costs for the taxpayer. In many communities, a lot of litter collecting is done by voluntary community groups. In my own area, the local civic society takes on responsibility for clearing up irresponsibly discarded litter. The Highways Agency spends around £10 million a year clearing litter and this often involves closing lanes, which also causes delays to other road users.
As my noble friend explained, his proposed new clause seeks to make it easier for local authorities to fine people when littering is witnessed from their vehicle. My noble friend feels that more people must be punished for this anti-social behaviour and that, if more people were or could be punished, fewer people would commit the offence in the first place. The Government are at one with my noble friend’s intentions. However, as my noble friend Lord De Mauley advised my noble friend Lord Marlesford during the Second Reading debate on his Littering from Vehicles Bill earlier this year, we do not believe that the approach he proposes is likely to contribute significantly to the resolution of this problem, and I think that I owe it to the Committee to try to explain that.
At present, because littering is a criminal offence, we advise local authorities not to issue fixed penalty notices for littering unless they are confident that the evidence against the offender would stand up if the case went to court. It is, of course, for local authorities to satisfy themselves about this and to assess the strength of each case on its merits. The amendment would also mean that, as a matter of law, the registered keeper of a vehicle could be punished for an offence committed by someone else, such as a passenger, or a family member who also had the use of the vehicle. The amendment makes clear my noble friend’s intention that the registered keeper should be held liable whether or not they gave instructions or allowed the contravention to take place. People who are innocent of any offence would therefore have either to pay the fine or take on further inconvenience and expense in challenging it, while the actual offender would go unpunished. It is hard to see how this approach is going to change offenders’ behaviour if someone else bears the punishment for their wrongdoing. In law, fairness and proportionality are crucial in gaining public support for the use of fines to punish this type of behaviour, but under the amendment an innocent party might be punished for the crime of another.
I accept that there is a place for keeper liability when it comes to the enforcement of traffic-related offences, but it is a very big step to extend this principle to other categories of offences. Government guidance on the use of fixed penalties is very clear that people should be fined only when it is proportionate and in the public interest to do so, and fining the registered keeper for any littering offence committed from their vehicle, regardless of their guilt, is neither fair nor proportionate.
Enforcement is the issue, and I agree with all noble Lords who have spoken that we want the message to the public to be loud and clear: littering is a crime. However, the amendment would distort that message by essentially decriminalising littering from vehicles, and at the same time it would create a legal anomaly. Littering while standing on the pavement would remain a crime, but dropping the same litter from within a vehicle would be treated as a civil offence. That risks sending the wrong message—that littering from vehicles is not really so serious.
More importantly, we also doubt that this proposal will achieve my noble friend’s desired aim, as it relies on the offence being witnessed. Its effectiveness would be limited by the number of enforcement officers available to the local authority, and they cannot be everywhere all the time. It will not be of any help when the offence takes place in an isolated area, in the dark or at such speed that the vehicle registration cannot be recorded. In some cases, CCTV may help, but even CCTV has limits as to the level of detail that it captures.
When my noble friend raised this proposal in the context of the Localism Bill in 2011, the then Minister, my noble friend Lord Shutt, responded:
“It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation”.—[Official Report, 10/10/11; col. 1370.]
I know that my noble friend Lord Marlesford feels that the powers under the 9th and 10th London Local Authorities Acts have been in force in London for a year and that we should therefore have had time to assess their operation by now. However, the current evidence suggests that these powers have not been widely used. It has taken a long time for the boroughs to put in place the necessary appeals system and paperwork. Barely a handful of civil penalties have been issued so far, and the new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour—
Lord Crickhowell
I am grateful to my noble friend. He is giving one lot of statistics but does he have any statistics relating to the number of occasions when criminal prosecutions have been effectively brought for the same offence anywhere in the United Kingdom?
Lord Taylor of Holbeach
I apologise to my noble friend because I do not have such figures. I am not quoting any figures here; I was saying that I understand that only a handful of civil penalties have been issued. I shall certainly write to my noble friend if I am able to obtain the answer for the number of littering crimes that have been committed. As I said earlier, enforcement is the issue. The new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour of the general public. After this debate, it would be interesting for me to talk to my noble friend Lord True about his experience in his borough and to find out how useful he has found these provisions under the London Local Authorities Acts.
The lesson we have learnt so far is that the evidence does not support this approach as being so effective in tackling the problem as to justify rolling it out on a national scale. While we share my noble friend’s sentiment and respect his persistence, we cannot support this amendment and I hope that he will withdraw it.
We have heard a number of speeches. My noble friend Lord James of Blackheath sought to get to the bottom of several issues, but we doubt that my noble friend’s proposal will assist us in dealing with the problems mentioned by many of the speakers in this debate.
I now turn to the amendment from my noble friend Lord Goschen. He alluded to a number of matters on which I can now inform the Committee. This amendment brings to our attention the problem of fly-tipping. Like littering from vehicles, this is another example of individuals having little care or concern about the impact of their actions on the environment.
I am pleased to be able to reassure my noble friend that there are currently seizure and disposal powers in respect of vehicles used for illegal waste disposal. These are set out in Section 6 of the Control of Pollution (Amendment) Act 1989 and they apply in Scotland, England and Wales. However, we will be improving on these powers when we commence provisions in the Clean Neighbourhoods and Environment Act 2005 to repeal and replace them.
The new, wider powers relate to the seizure of vehicles used or about to be used in the commission of offences under Section 33 of the Environmental Protection Act, which relates to the unauthorised deposit of waste and includes fly-tipped waste, under Section 34, which imposes a duty of care to ensure that waste is transferred to an authorised person, and under Regulation 38(1) or (2) of the Environmental Permitting (England and Wales) Regulations 2010, which require waste operations to be carried out in accordance with a permit. It will also make it easier for local authorities and the Environment Agency to exercise their powers—for example, by removing the need for a warrant before seizure and for the retention of the vehicles pending investigation or completion of court proceedings.
The new, wider powers also provide for the forfeiture of seized vehicles following convictions for offences under Section 33(1) of the Environmental Protection Act or Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations. The new Environmental Protection Act powers have already been commenced in relation to Wales and are in the process of being commenced for England. The related secondary legislation is in the process of being drafted and finalised. Subject to the normal clearance procedures, these powers are due to be brought into force as early as possible in 2014. Given that the powers sought by my noble friend’s amendment already exist and are in the process of being improved, I do not think the amendment is necessary and I hope that he will feel able not to press it.
Lord Marlesford
My Lords, it really is not good enough to say, as my noble friend has said, “We can’t do everything, so we should do nothing.” If we took what he said literally, absolutely nothing would happen this side of the election. That is not an impressive record for any Government to stand on. I wish one of the legal experts would intervene, but I do not believe that it would be seen as disproportionate or unfair for the keeper of a vehicle to face a small and moderate civil penalty fine of about £80 for having a vehicle from which litter is thrown if that would act as a deterrent.
My noble friend said that nothing is happening in the London area at the moment, but I understand that two London boroughs, Wandsworth and Redbridge, have agreed to pilot the new legislation. One of the problems is that only the Government can ensure that legislation is effective, and they clearly have the responsibility to resolve one particular legislative anomaly: local authorities can contact the DVLA for information on a registered keeper only when it is suspected that a criminal offence has occurred. There is no reason why the amendment could not be redrafted so that, even for a civil offence, local authorities could get the details of the keeper if rubbish had been seen to be thrown from a vehicle. There is nothing undemocratic, unfair or disproportionate about that.
In fact, I would say that my proposal is a great deal more proportionate and effective, because if it were accepted, something would be happening. At the moment nothing is happening and the Minister is saying that absolutely nothing will happen. If the public listened to what is said in the privacy of your Lordships’ Chamber, I am not sure that they might not go out with joy. They would not, perhaps, do as my noble friend Lord James suggested, but they might feel, “Well, this is the moment when we can throw out any bits of paper, because we’ve not only been told that nothing can be done about it—because it can’t be proved that it was us—but we’ve also been told that the Government have absolutely no intention of doing anything about it”. The message seems to be that if we cannot be the cleanest country in Europe, let us ensure that we are the dirtiest. I reject that. I shall, of course, withdraw the amendment, but I shall expect to have talks with my noble friend and I hope that something will be brought back on Report. I may well then test the opinion of the House. I seek leave to withdraw the amendment.
“Corporate anti-social behaviour order
(1) It is an offence for a corporate body to act in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons.
(2) In this section “corporate body” has the same meaning as in Part 12 of the Corporation Tax Act 2009 (see section 1005 of that Act).
(3) The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed under subsection (1).”
Baroness Smith of Basildon
My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.
Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.
The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?
There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.
A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.
Baroness Hamwee
The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.
I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:
“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.
I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.
Lord Ahmad of Wimbledon
My Lords, the Government are often accused of not listening. I listened with great interest to the previous debate, initiated by my noble friend Lord Marlesford, and as I went over to the Box I noticed a piece of litter on the floor. I acted promptly and handed it to the doorkeeper—so there is some hope of instant action on the part of the Government.
I am grateful to the noble Baroness, Lady Smith, for tabling her amendment with the proposed new clause and raising an important point. I agree with her that, where businesses act in a way that is likely to cause harm to others, they should be held to account. However, the Government feel that a corporate ASBO is unnecessary. We believe that we have drafted the new powers in such a way as to be flexible enough to deal with this eventuality.
For example, the new community protection notice, which we will discuss when we come to Part 4, can be issued against a corporate body. If that corporate body is persistently acting in an unreasonable manner and having a detrimental effect on the quality of life of those in the locality, it can be held to account through the new notice. While the community protection notice replaces litter and graffiti notices, it can be used for much more, including noise and other behaviours. What is more, breach is a criminal offence and, on conviction, a business could be fined up to £20,000. It is a power which provides real teeth.
Lord Beecham (Lab)
Will the Minister indicate whether unincorporated bodies will be caught by the provision, or would that require additional legislation?
Lord Ahmad of Wimbledon
I believe that the clause as drafted could apply to an individual or an organisation. When we discuss that wording, it will be clarified. This applies to an individual or an organisation—which incorporates the issue raised by the noble Lord. In addition, where the use of business premises has resulted, or is likely to result, in nuisance to members of the public or disorder nearby, the new closure powers that we are introducing, to which the noble Baroness referred, will be able to close a premises immediately. The police and/or local authorities can act quickly where a business acts anti-socially. Again, breach is a criminal offence with the potential for a significant fine.
It is also worth saying that sometimes it may be a particular individual who is the root cause of the anti-social behaviour—for instance, the business owner or a store manager—and not the business as a whole. In those circumstances, the police, council or others listed in Clause 4 could apply to the court for an injunction against the individual on the test of nuisance or annoyance. Hopefully that would deal with the issue and, while breach in this case may not be a criminal offence, it could still result in a large fine or even a custodial sentence.
In putting forward this amendment, the noble Baroness said that it was a probing amendment to seek clarification. I hope that on the basis of the example I have given, by drawing the attention of noble Lords to the fact that we will be discussing this issue under Part 4 and with my explanation, she will feel able to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. I am not sure whether it will be helpful to probe the matter further when we get to community protection notices, because they deal with individuals. If there is a persistent litter problem in certain premises, it would not be possible to have a community protection notice against every individual. My worry with his other proposal, the closure of premises, is that it would deal with the problem by closing the business. Often, it might be better to take preventive action with the corporate body, the business, to prevent closure and to deal with the problem, rather than to act against individuals and then, if that does not work, close the business. I am trying to find a pre-emptive way to prevent the problem rather than deal with it once it had happened. However, I am grateful to the noble Lord for taking the point seriously. Perhaps we can return to it and discuss it further when we consider community protection. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 22C and 22D. I hope that I can be quick with these. Amendment 22B seeks clarification as to the standard of proof required for a criminal behaviour order. Of Clause 21, the Minister said in the Commons:
“The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders”.—[Official Report, Commons, 14/10/13; col. 543.]
He then said that an amendment similar to this was unnecessary. If guidance is needed on an issue as serious as the standard of proof, it should be in the legislation. The Joint Committee on Human Rights, which reported before Report in the Commons, said that that should be in the Bill.
Amendment 22C would import the test of necessity—as for an ASBO—to the making of a criminal behaviour order. Amendment 22D would import a test that we have already discussed in the context of an IPNA from the Crime and Disorder Act, which would provide that the court should disregard an act that the defendant shows is “reasonable in the circumstances”. That is linked to the standard of proof but is a separate issue. When we discussed a similar provision on Monday, the answer was that, for an IPNA the court must consider whether an injunction was “just and convenient”. That, of course, is not the same test as would apply to a criminal behaviour order. I beg to move.
Lord True
My Lords, I need a little help on Amendment 22C. I heard what my noble friend said about applying a test of necessity. It seems that this potentially weakens the ability of the court by adding that it,
“is necessary to protect any person”.
The kind of practices with which we are dealing here can relate to manner and habit. It may not be that there is a proximate need to protect an individual from a specific act. It could be that I as a lawyer do not understand this, but it seemed to me that the court is surely best placed to decide. The broader definition, which does not add in the need to protect a specific individual against a specific act, seemed to me to be satisfactory. I was content with the drafting presented by the Government.
Lord Rosser
I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.
The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:
“If the court is satisfied beyond reasonable doubt”.
Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:
“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,
et cetera. There is no reference to “beyond reasonable doubt”.
So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:
“It is expected that courts will follow the reasoning in”—
the case of Clingham v Royal Borough of Kensington and Chelsea—
“and apply the criminal standard of proof”.
Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.
I have a further issue with the criminal behaviour order. The draft guidance states:
“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.
However, the following paragraph states:
“There is no scope for retrospective applications”.
Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.
How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.
Lord Taylor of Holbeach
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Baroness Hamwee
Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.
I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.
I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,
“likely to cause harassment, alarm or distress to any person”.
We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment I will also speak to Amendments 22H, 22J and 22K. My noble friend Lord Greaves has Amendment 22KA in this group.
On Monday, when we were discussing the relationship between provisions in the Bill and statutory nuisance, I explained that I had been asked to raise the matter by the Chartered Institute of Environmental Health, of which I am vice-president. I will speak briefly to my amendments today, but I also ask the Minister whether we can discuss the matter before Report. The institute is clearly concerned about remedies such as the community protection orders and noise abatement orders being too similar for comfort. The institute talked to me about the potential for confusion and conflict and twin-tracking by different authorities and different professions. However, I assure the Minister that we are willing to contribute to the guidance around all this. We take the point that the guidance is still in draft form. We are concerned to get the legislation right, not just to rely on guidance where the legislation may in itself not be as clear as it might be.
Amendment 22NA would provide for a significant detrimental effect to trigger a community protection notice. Where there is a civil process, the de minimis principle would apply. It has been put to me that the alternative to dealing with this in legislation is for it to come out over time in case law, which would obviously have a cost implication.
Amendment 22ND would require a person in authority to assure himself that the conduct is not already subject to any other statutory control. As drafted, that person may think it appropriate as a discretion. This seems to be quite a weak protection against different agencies wasting each others’ time chasing the same end. What is most important is to avoid obstructing or contradicting action that has already been taken, such as an indefinite prohibition in an abatement notice.
Amendment 22NE would provide that no notice was served where it would be controlled under any other statute, which is again about conflict. Where the problem is noise, apportioning responsibility and sorting out a fair and effective remedy can take a lot of technical—
Lord Ahmad of Wimbledon
I am responding to this debate, so I am listening with great attention, but for a moment I thought I had lost my place. I must point out that we are discussing group 9, which starts with Amendment 22E. I believe that my noble friend is speaking to group 13, which starts with Amendment 22NA. My apologies for not intervening sooner, but I thought that I had lost my place. Perhaps she would like to speak to the earlier group.
Baroness Hamwee
My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.
Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.
Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.
Lord Greaves
My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:
“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.
Clause 28(4) states:
“In this section ‘local government area’ means—
(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.
There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.
Lord Rosser
I am very interested to hear the Minister’s response on all the issues that have been raised, particularly about the duration of a criminal behaviour order. This has already been stated. For those who reach the age of 18 there is a,
“fixed period of not less than 2 years, or … an indefinite period”—
then it says in brackets—
“(so that the order has effect until further order)”.
I am not quite sure what that means. What is the further order that is envisaged? It does not say, “until further notice” but “until further order”. Perhaps the Minister will clarify what that actually means.
As far as the order being allowed to go on for an indefinite period, the Minister has been quite eloquent during the passage of the Bill, telling us all about some of the existing provisions, how they are not working and how they are not having any effect. Bearing in mind that it says in the draft guidance that the criminal behaviour order,
“is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court”,
then I suggest that if such an order has been in effect for five years but has not had any impact and has not managed to tackle the most serious and persistent offenders, it is unlikely that it will do so beyond five years.
On how long the order period should last, if the Minister is determined that the facility should be there for it to continue for longer than, say, a period of five years and to go on indefinitely, does he not think it appropriate that there is a proper review to justify the need for it to continue on the basis that one would have thought five years a reasonable time to show the effectiveness, or otherwise, of an order?
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Hamwee for her explanation of these amendments and for sharing her thoughts about a group yet to come. It gave those of us on the Front Bench advance notice of what she might be saying, so I thank her profusely for that.
Amendment 22E seeks to require a court to consider the proportionality, as my noble friend said, of positive requirements for including them in a criminal behaviour order. Positive requirements are of course an important element of both the criminal behaviour order and the injunction to prevent nuisance and annoyance. As currently drafted, the Bill states that the court must receive evidence about the suitability and enforceability from the person or organisation that will be supervising compliance with the requirement. Proportionality will therefore routinely be considered by a court as part of this decision.
The Bill sets out clear limitations on courts when determining whether to agree any positive requirement proposed in the application. The court must not impose any requirement that conflicts with, for example, an individual’s religious beliefs, or interferes with their work or education. Ultimately the court will have regard to an individual’s human rights—for example, Article 8 rights—when deciding to include positive elements. Such qualified rights can only be infringed where to do so is necessary and proportionate in pursuit of a legitimate aim. Proportionality, therefore, is a relevant legal consideration for the courts.
Amendment 22G, which the noble Lord, Lord Rosser, focused on as well, would remove the ability of the court to grant a criminal behaviour order that lasted longer than five years. Of course, I understand the reasoning behind this. However, where the courts are dealing with the most anti-social individuals, they should have the option of imposing an order for a longer period. The courts, as I am sure all noble Lords will agree, will always consider the reasonableness and proportionality of a longer order before granting it. They will have access to relevant information about a particular case. We believe they are best placed to make a judgment about the appropriate length of an order. What is more, the offender has the ability under Clause 26 to apply to the court to vary or discharge the order at any time.
The noble Lord, Lord Rosser, sought clarification about the words “further order”. This refers to a further order of the court, not a further CBO.
Finally, I understand that Amendments 22H, 22J and 22K are designed to ensure that all orders are reviewed annually. As your Lordships are aware, we have ensured that this is the case for under-18s. We recognise the importance of frequent monitoring as a young person matures during the duration of an order. However, in respect of adults we have left the decision open to the relevant police force as to whether there should be such a review. In such cases where an individual is behaving in a way that is seriously anti-social, it may not be appropriate to review the case after 12 months, as this would be too soon and would simply result in an unnecessary burden on the police and courts. Again, we wish to make sure that such decisions are made by those on the front line who are best placed to assess each individual case.
Lord Greaves
I am grateful for the Minister’s comments, but in order to save time on Report why does he not just accept the amendment now?
Lord Ahmad of Wimbledon
With all things legalistic and legislative, my noble friend will agree with me that it is important, as he himself stated, to get it right. Let me assure him that we will certainly take into account his insight and expertise in ensuring that in our drafting we correct any omission, if indeed that is the case.
I hope, based on the explanations I have given, that my noble friend will be minded to withdraw the amendment.
Baroness Hamwee
My Lords, I apologise again to the Committee for getting so confused over these amendments. I say to my noble friend Lord Greaves that he knows precisely why an amendment is not accepted now—because they never are, are they?
I remain troubled about the issues that I have raised. Proportionality seems to be more than a matter of human rights in the technical way in which we sometimes refer to them. An indefinite order period over five years is a very harsh response. As I understand it, there is no statutory requirement for review in the case of over-18s. There is a page, thereabouts, of provisions for reviews in the case of under-18s, but for the over-18s it is left to everyone’s good sense.
As I say, I remain troubled, but let us see where we might go when the little bits of this which will be further considered have been considered. For now, I beg leave to withdraw the amendment.
The Earl of Listowel)
The Earl of Listowel (CB)
My Lords, in moving Amendment 22KB in the name of my noble friend Lord Ramsbotham, I shall speak to Amendments 22KC, 22NZA and 22NZB. My noble friend apologises to the Committee for his absence. He has a long-standing commitment and asked that I might present his case for him. There seems to have been a little confusion. His amendments were tabled late in the day and I, also late in the day, called for a clause stand part debate. I do not think that I will need to call for a clause stand part debate, given the useful amendments tabled by my noble friend. The amendments deal with Clause 29, on the breach of orders, and Clause 37, on offences. They would take minors out of both those clauses.
As an aside, several of my colleagues who would be interested in our debate are involved in the Children and Families Bill, as am I, and there has been confusion about the timing of that Bill, which may have been an obstruction to colleagues interested in the area of children to come to discuss this Bill. If the Minister has not agreed to this already, perhaps there may be an opportunity to meet with him and officials to discuss how this Bill affects children with those Peers who are particularly interested in the welfare of children.
Over the past few years, there has been a welcome reduction in the number of children in custody, as a result of the recognition by Her Majesty’s coalition Government that imprisonment is not an effective way to deal with children’s offending behaviour. As your Lordships will be aware, the new police dispersal power to tackle anti-social behaviour is introduced by the Bill. Children who breach the order and are convicted of failing to comply with the police dispersal order are to face a fine and/or up to three months in prison. I suggest that those sanctions are disproportionate, counterproductive, incompatible with children’s rights and risk reversing the positive downward trend seen in children’s custody numbers.
As a bit of background, currently, nearly seven in 10 children breach their anti-social behaviour orders. That is typically due to a lack of support, rather than wilful non-compliance. It is a much higher breach rate than for adults. Imprisonment is imposed as a sanction for juvenile ASBO breaches in 38% of cases, with an average sentence of just over seven months.
The purpose of the amendment is to remove imprisonment as a sanction for children when they fail to comply with a dispersal order. The amendments replace imprisonment with robust community alternatives. I have mentioned several times my concern about the guilt that many of those young people will carry with them. They will feel responsible for the failures in the family. I have spoken to young men who have made it their job to be at home when their father has returned home from the pub so that they can stand between their mother and their father at the time. I have already spoken about those boys who grow up without a father in the home. Of course, there are young men who are beaten by their father on a regular basis. Those young men feel responsible for having to stand up to their father and protect their mother, for being beaten by their father or for having their father absent from the home.
My wide experience of this is that children do not think rationally in those times. They tend to think that they are responsible for those failures. Being too harshly punitive of young children may be counterproductive. I spoke recently to a lawyer with several years of experience of working as a defence lawyer for such children. To get them prepared to stand up in the witness box and give a reasonable case, he would say to a child, “Look, Richard, I know that there is good in you. My partner, Margaret, knows that there is good in you. You can make the choice. You can do the good, the right thing or you can choose not to”. By speaking in those terms to the child, he gets the best from them.
My concern is that if we are overly harsh, if we imprison children, if we punish them too severely, they will be confirmed in their belief that they are bad to the bone, that they are responsible for all the bad things in their life and will go on to be a nuisance to society and cost society a large amount of money when they are later imprisoned. A further problem, to which I just alluded, is that once children get involved in the prison system, there are much more likely to get involved with it again. They will be returnees. I look to the Minister for some reassurance in his response.
Baroness Hamwee
The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.
Baroness Linklater of Butterstone
My Lords, I support these amendments wholeheartedly. We are talking about punishment. Punishment must, as a fundamental, be appropriate, proportionate and likely to succeed. I suggest that the provisions have none of those things right. It is entirely wrong to have a sanction which involves the potential imprisonment, which is the ultimate sanction for breach of a CBO, of children between the ages of 12 and 18. A detention and training order, which is a possible likely outcome, can be given to such children for breach for a minimum of four months and a theoretical maximum of 24 months, half of which would in fact be intervention, supervision and the rest.
Children who fail to comply with a police dispersal order can also get up to three months. We are looking at a whole range of options to incarcerate young people. It has already been referred to tonight that children routinely breach ASBOs—about two-thirds of them do. Once they get into the world of breach, we are in very dangerous territory. All the successful work that we have seen and in which I have been closely involved with the Youth Justice Board has been to avoid the incarceration of children. This is simply because it does not succeed; the noble Earl has indicated why. In all cases, incarceration should be for the most dangerous, severe and violent behaviour. Those are the kinds of criteria that we should apply to anybody going to prison. In other words, the criteria apply to adults, too, but how much more do they apply to children?
Baroness Smith of Basildon
My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.
The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.
As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?
Lord Taylor of Holbeach
My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.
This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.
Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.
Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.
On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.
I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.
The Earl of Listowel
My Lords, I thank the Minister for his careful reply. I hear what he says and will take it away and consider it. I am concerned about looked-after children, who have often been so badly failed by their family. While the state is improving in its job as a corporate parent and the Government are doing good work in improving the consistency and quality of social workers, still so often the young people I meet are let down left, right and centre by the state itself by having too many different social workers and not being properly cared for in their residential care.
I am concerned that young people who will be caught by these measures will be troubling, but often very troubled themselves. They can be such a nuisance and so difficult to deal with that the risk is of a kind of unintentional ratcheting up of the response by the state until these terribly troubling—and terribly troubled—young people, who have often been very poorly treated in their own home, get punished by the state because their parents were not good enough for them. It falls to us to try to be as careful as possible to get a positive influence and impact on their lives.
For instance, in a children’s home, one might find that if a child is acting out in an aggressive and unhelpful way and if you have poorly trained staff, in the worst instances they will hit back at a child. They simply will not know how to respond. In the best establishments, one finds that the staff are really well supported and very thoughtful. They get in there really early on, before the child starts acting out, and prevent the escalation to where the police are called and the child gets reported and put into the criminal justice arena. I am being a bit longwinded here. It is so easy for Governments to ratchet up their response to these children because they are so difficult. One does not want to see a return to the past where we had the highest rate of juvenile imprisonment in Europe, which was a shame on this nation.
Lord Taylor of Holbeach
Perhaps I might intervene to reassure the noble Earl that what we are seeking to do with the Bill is to get early intervention of the type he is suggesting. When we are talking about CBOs, we are talking about people who have been convicted of a criminal offence. Our task must surely be to try to avoid people getting to that stage. That is why we are looking to build in early intervention and, even when criminality has occurred, to look at methods of rehabilitation as a vehicle whereby we can address the issues, which I agree are extremely sensitive, in the way that the noble Earl suggests. I hope that he does not mind me interrupting him.
The Earl of Listowel
I thank the Minister for his response. I need to look very carefully at what the Government are doing here and the nuanced way that they are trying to approach this. I hope I can be comforted by that. I am most grateful to the Minister for agreeing to have a meeting at some point with those Peers who are particularly interested in this area. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 22N. Amendment 22L would add the term “proportionate” to the period during which a dispersal order would apply so that the use of the power is both necessary and proportionate. When this matter was discussed in the Public Bill Committee in the Commons, the Minister said that he was confident that the powers will not be used disproportionately and referred to the need for authorisation by an officer of at least the rank of inspector. My amendment would insert a degree of objectivity into the clause. This is not intended to be critical of police officers, but if the power is intended always to be used proportionately, should that not be spelled out and be capable of being challenged?
My second amendment, Amendment 22N, would provide that the authorisation must clearly identify the locality in question. That is a matter of clarity, but rereading the clause over the past few minutes, it strikes me that the term “locality” could be understood in different ways in Clause 32(1), which is the specified locality to which the order will apply, and Clause 32(2)(a), where we are directed to reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed. In the second case, the normal meaning of “in the locality” would be in and around the area, not in the specified locality referred to in Clause 32(1). I have only just thought about this. Reading things again, they sometimes read slightly differently. I do not know whether the Minister can assist me on that.
The amendment relating to proportionality was raised in the context of concern about peaceful assembly. I think we will come to that later, but I shall just say that I, too, am concerned that we should do nothing in the Bill to prevent peaceful assembly when people in a proper manner exercise their democratic rights as citizens. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I rise to speak to Amendment 22M in the name of my noble friend Lady Smith of Basildon, which would insert into the Bill the words,
“and once the relevant local authority has been consulted”.
I do so on two main grounds. One is to revert to a topic that we discussed in Committee on Monday, which concerned the importance of the powers in the Bill being exercised as part of a wider pattern and a wider agreement with local government and other interested parties. That is a general principle that we should not move away from. However, the main issue is that this is clearly a power that relates to a specific locality. It might relate to, for example, aggressive begging in a particular park, square or precinct. Therefore, you would expect the local authority or the custodian of the public space concerned to have very clear responsibilities and interests. There may well be community implications. There may well be a need to listen to what the local authority may feel will be the community impact of such an action or, indeed, to consider the local authority’s view on whether the community benefits from such an action.
I understand that the local authority should be the custodian of those public spaces and that these are the circumstances in which this power may be used so it is appropriate that it be involved. I understand that the parallel of this power, the old anti-social behaviour order regime, did involve consultation with the local authorities concerned, yet the Government have specifically excluded it in this Bill. I would be interested to know a little more about the rationale behind why this has happened in this particular case as this seems to me an obvious area where you would expect there to be consultation with local authorities.
If the argument is that local authorities have been slow in responding to consultation and that this has led to a continued problem, I would be surprised because local authorities usually are well aware of concerns that are being expressed by local communities about a problem in a particular area. If that is the case, I suspect there are some faults on the side of the local authority. These could be remedied by some expectation of what the normal period is within which the local authority should respond when asked for its views on these matters. However, I think there is an extraordinary weakness in the way that these powers could be pursued. The way in which the legislation is framed, this is a quite a broad power. The authorisation could come from a police officer and would proceed solely on the basis of the authorisation of a police inspector. This is not something that would have necessarily gone to court, although obviously it relates to people about whom there are clearly concerns.
I would like to know why it is not felt to be appropriate in these circumstances for the local authority to be consulted. If the argument is that there have been unconscionable delays associated with that, can the Minister give us some examples of where they have occurred, and can the Minister say why it would not be possible to build in to the legislation something which required a specific time period for the local authority to respond when such a power is being considered?
Baroness Smith of Basildon
My Lords, I will speak to Amendment 22M and also comment on whether Clause 32 should stand part of the Bill. I will make a very similar point to that made by my noble friend Lord Harris. We do not have an issue with the principle of dispersal powers. In fact, we introduced such powers back in 2004, although I recognise that they were pretty controversial at that time. Our worry is that the new power now being proposed by the Government can be authorised much more easily than the existing one and also for longer. The issue we are raising is that of proper and effective democratic oversight. Local authorities must and should be consulted by the police before the issuing of dispersal orders. That is the process that currently exists.
What I find curious is that the Home Affairs Committee, in its pre-legislative scrutiny, recommended that there should be a duty to consult local authorities on applications for dispersal powers of more than six hours. The Government’s response to that comment by the Home Affairs Select Committee in the other place was that they would ensure that the legislation allowed for that. In fact, it does not. It would appear that the commitment that the Government gave in their response to the Home Affairs Select Committee has not been brought forward in the Bill—unless it is in the pile of amendments that were issued very late last night for debate today, but I do not see them grouped here at the moment. Unless an amendment is coming forward from the Government, can the Minister explain why a response was made to the Home Affairs Select Committee to do something that does not appear to be in the Bill now?
When evidence sessions were held during the Committee stage of the Bill in the other place, there was no suggestion that the existing power was not working properly. The police have also said that working with the local authority really helps them get community consensus and support when a dispersal order is needed. That is why we consider Amendment 22M to be so important. Why fix something that is not broken? If there is an issue, why try to change the process? If the Minister can tell me that he and the Government have received representations from organisations or individuals that suggest that the current provisions are inflexible and inadequate, that would help to explain why the Government have made such changes. If he can tell us who those organisations or individuals were, what changes they sought and for what reasons, that would perhaps help to explain why a power has now been proposed that is different from the existing one.
I was reading through the debate in Committee in the other place. Damian Green, as the Minister, said then that the powers were designed,
“to allow police officers to react to a dynamic situation”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 27/6/13; col. 240.]
Have there been complaints that there has not been a response, as the Minister would like? If that is the case, there is a concern that this could lead to the powers being used recklessly and in inappropriate circumstances if there is not that check. Can the Minister say on how many occasions there has been a situation where a community has been at threat or in danger because the local authority could not be consulted about a dispersal power over the week and the power then could not be used? Have there been such cases that have led the Government to bringing forward a very different kind of procedure now?
The noble Baroness, Lady Hamwee, and my noble friend Lord Harris raised the question of locality. There is concern that the meaning of “locality” is not quite clear or is wider than necessary. If the Minister can address that, it would be helpful.
Lord Greaves (LD)
The noble Baroness was not in the House when we dealt at some length with the question of what “locality” means, specifically in relation to town greens and village greens in the Countryside and Rights of Way Act when it went through this House rather a long time ago—about 13 years ago—and the Commons Act more recently. The courts had got themselves into terrible difficulties about the definition of “locality”, about whether localities and neighbourhoods are the same thing and about the question of neighbourhoods within localities. There was a lot of abstruse discussion and debate and I am not sure that we actually clarified the matter. The important thing is that locality is not the same as location. A location is a specific place on the surface of the Earth. A locality, however you define it, is wider in some respect or other.
Baroness Smith of Basildon
Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.
I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.
It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.
Lord Taylor of Holbeach
My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.
The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.
The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.
The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.
On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.
I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.
Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.
Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.
However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.
This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.
I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.
The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.
I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.
Baroness Smith of Basildon
I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.
Lord Taylor of Holbeach
I have given the noble Baroness the information I have on our response to the Home Affairs Select Committee. I can give her no more information than I have given her already on the representations that were made. However, if the noble Baroness will permit it, I will write to her on the subject. It might be useful that I exchange the information with her. Of course, I will include any other Peers who have spoken on this group of amendments.
Lord Harris of Haringey
While the Minister’s flow has been disrupted, perhaps I could disrupt it a little bit further. Can he explain a little bit more how the Government envisage that this will work? The more I have heard about this, the more concerned I have become. Suppose, for example, there is a fairground in an area. It may be a visiting fair. During the previous evening, there were some problems with youths fighting and so on. Does that mean that an inspector could issue an authorisation or exclusion from people carrying out certain sorts of behaviour during the following day?
I think I am also right in saying that Clause 38 would permit—if the right authorisation has been given—a police community support officer, rather than a warranted officer, to carry out the exclusions concerned. What would then happen, if I am right, is that an area would be defined and police officers and police community support officers would be deployed with maps in their pockets to give to people whom they thought—in their opinion—were causing disruption or bad behaviour, and those people would then be required to leave the area shown on the map which they would be given from the back pocket of the police constable or the police community support officer.
That would then be a power for which there would be no accountability other than the authorisation by a police officer of the rank of inspector. This is one of the federated ranks—not even superintendent—so in many ways it would be a comparatively low-level authorisation. There would be no requirement to consult. It was said that it would be good practice to inform the local authority; but I think I heard the Minister say that this would be after the event, rather than before.
This could have an enormous impact on community relations. I can think of parts of London where the sudden arrival of police officers clutching maps and saying, “We are going to exclude you from this area for 48 hours”, would cause serious problems and disruption. Even if it were a proportionate response to the problem that had occurred the previous evening, it seems that this is something that should be exercised with proper consultation with the community representatives concerned. I have ended up being more disturbed by these provisions in the Bill following the Minister’s very careful and helpful explanation than I was beforehand. It would obviously have been better had he not tried to explain it to us.
Lord Taylor of Holbeach
That is not my practice; I try to be open with the Committee about what these proposals entail and what they mean. Perhaps I have not emphasised that the whole Bill is built on good working relations between the police and local authorities. That is the whole purpose behind so much of this legislation. The reason why prior consultation has been eliminated is not because of the situation where the fairground had trouble the night before and it has been decided to put in place a dispersal order to deal with the problem the following evening, because clearly that would be a case where the authorities would talk together about how to deal with the problem. The situation we are dealing with is where there is disorder in an area at that time and where consultation with a local authority would impede a prompt response to that situation, and prompt dispersal.
Lord Harris of Haringey
That is even more disturbing because it implies that if, at 11 am, there is a concern that there is about to be disorder, that is the point at which an inspector could authorise police officers. It is always difficult to see how they are going to have the maps in their pockets to serve to people if they are dealing with a situation of that degree of urgency. I just think that what we are being told describes a series of situations where you really wonder how this is going to work in practice. The danger is that a misjudgment —and I am sure it would not be common—made by an officer of the rank of inspector could cause really serious community disruption. I can envisage circumstances where this would happen and this would provoke riotous behaviour in a wide area far worse than the disorder that was originally expected.
Lord Taylor of Holbeach
The noble Lord is concerned about the rank of inspector, but of course operationally, inspectors are the rank that has local knowledge and information. That is one of the key elements of this legislation; we are talking about locality here, and that is one of the main reasons why the rank of inspector was included in the Bill, in response to the Home Affairs Committee’s legislative scrutiny. I should emphasise that these powers already exist, and the way in which they are being used in this Bill comes as no surprise to the police nor to local authorities. The powers are used on a regular basis; they are familiar with the issues raised by the noble Lord, and the PCCs are in a position where they provide democratic accountability on the use of these powers.
Lord Harris of Haringey
I appreciate that lots of noble Lords are present for the next debate and I am sorry that this is holding them up. The way in which the legislation is framed—and I cannot immediately see how it could be done in a different way—does not necessarily mean that the inspector who authorises it is the one with knowledge of that particular community or locality. I use the word “locality” to make sure that I get it exactly right for the noble Lord, Lord Greaves. The provisions simply say, “an inspector”. I can conceive of circumstances in which a police force might decide to have an expert at the rank of inspector who will deal with dispersal orders for the whole force, who would then not have the local knowledge or input, which local councillors or neighbourhood officers might have, about the likely community reaction under those circumstances. There are some serious issues here which I hope the Minister will take away and consider.
Lord Taylor of Holbeach
Of course, I will consider all matters raised in this debate—I am happy to do so. We want to try to make sure that this works. But I have emphasised to the noble Lord the role of local authorities, the inspector and the police on the ground; it is all a matter of responding to a situation and having a vehicle available that harnesses powers to disperse that already exist to effectively handle that situation.
Lord Taylor of Holbeach
I think that I must respond to points made by other noble Lords—
Lord Harris of Haringey
If the Minister will forgive me, what he is saying is that all those different bodies will of course be working together. But that will be in the absence of an overarching plan in which the local authorities must necessarily engage—we debated that on Monday night. And it is in the absence of the specific power that used to exist whereby a local authority had to be consulted before the powers were used. That is not a recipe for saying that there will automatically be that degree of co-ordination and working together. That is the ideal, and I am sure that it is what everyone will strive to achieve, but we are talking now about things that will almost be happening in the heat of the moment, and I question how, in the heat of the moment, it will be possible to have a map that will clearly define the locality from which individuals are being excluded.
Lord Taylor of Holbeach
My Lords, the noble Lord is forgetting that anti-social behaviour is a concern for all public authorities, whether they are police and crime commissioners, who place it pretty high up their list of priorities, or local government and elected councillors or serving police officers. All those authorities place anti-social behaviour high up their list; they are not going to be negligent about dealing with the practical application of those powers. There will be pre-discussions between those authorities on the way in which all those powers are used.
We do not need in this Bill to tell people what to do or where their duty lies; they are quite capable of fathoming it out for themselves. We need to explain to them what power they have and the methodology whereby that power can be legitimately exercised. We are doing that in this Bill. I hope that the noble Lord will understand exactly the point the Government are coming from in this legislation. If I may say so, he has a mischievous side to his nature, and I think that he is seeking to make difficulties for the legitimate aspirations of people in authority, in local government and the police, who will clearly make sure that these powers are used effectively in the interests of preventing anti-social behaviour. That is why I am so resilient in resisting his temptations on these things.
Lord Taylor of Holbeach
I will reflect on what the noble Lord says, but I was about to address the points raised by the noble Baroness, Lady Hamwee, some time ago.
Lord Harris of Haringey
I am not being mischievous. Like the Minister, I want to make sure that these powers are effective. I also do not want to see unnecessary disorder caused because of their misapplication. That is why I am raising these issues. I actually made a self-denying ordinance that I was not going to intervene on the Minister again. However, his suggestion that I am doing this mischievously rather than because I am concerned about it led me to do so.
Lord Taylor of Holbeach
I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.
The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.
Baroness Hamwee
My Lords, I do not think that I should prolong this debate, and I shall keep until after today the questions that have occurred to me during the course of this debate.
My noble friend Lord Greaves has a much better memory than I have and has reminded us of the distinction between locality and location, as identified in previous legislation. I could not help but notice that my noble friend the Minister, in talking about Clause 32(1), used the term “location”, so I think we may need to be absolutely clear about that. But that can wait until after today.
I will say to both Front-Bench speakers who were sorry to have missed the Countryside and Rights of Way Bill proceedings that we dealt with an awful lot of it at unearthly hours of the morning and right through the night. On one occasion, breakfast was provided for the House, except for those who were stuck in the Chamber dealing with the Bill. So the noble Baroness may be a bit less sorry that she missed it. I beg leave to withdraw the amendment.
Animal Welfare: Cats and Dogs
(10 years, 11 months ago)
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Lord Black of Brentwood
To ask Her Majesty’s Government what actions they are taking to improve the welfare of cats and dogs in the United Kingdom.
Lord Black of Brentwood (Con)
My Lords, I am privileged to open this debate and indebted to all noble Lords, both mischievous and not mischievous, who are taking part. I am extremely pleased to see my noble friend Lord De Mauley on the Front Bench. Since his appointment at Defra, he has proved to be a redoubtable champion of our feline and canine friends and I look forward greatly to his response.
According to the Library, this House has not held a debate on the welfare of cats and dogs for over 20 years. It is good to have the chance to put this glaring omission right. I declare my interest as a cat owner. The indomitable Victoria is at home—with her sister Alexandra there in spirit—making sure I am on message. She will, no doubt, keep me up all night if I stray.
This is not a peripheral policy issue. It is estimated that 13 million households—45% of the total—have at least one pet, including between them over 17 million cats and dogs. The vast majority of owners are responsible families who love their pets and want to see all pets treated with the same affection. We are a nation of animal lovers and are all the better for it—as President Lincoln, who is much on our minds this week, nobly put it:
“I am in favor of animal rights as well as human rights. That is the way of a whole human being”.
Faithful cats and dogs, which are present throughout life’s journey—from the time children are taught to care for animals, to the companionship that pets give those in their final days—are the key to that “whole human being” and their role is growing in importance. More people live alone and live longer, often in isolation. Family structures are changing and, for many, pets fill the gap. They contribute to good health, reduce blood pressure, and teach the young about the values of a civilised society. They are central to the lives of many families. That is why this debate is important.
Today we face a crisis in animal welfare, as charities struggle to cope with a tide of unwanted pets, or pets that families can no longer afford to keep. Blue Cross has reported a 40% increase in abandoned pets since 2010, while the Cats Protection helpline receives four calls asking them to take a cat in for every one seeking adoption. The reason is simple: there are too many pets, and not enough good homes where families understand a pet’s welfare needs and can afford the cost of looking after them. Policy needs to change and I want to highlight four areas—breeding and sale, microchipping, companion animals and anti-social behaviour—where we can take action to improve the welfare of those who give their love unconditionally.
I will deal first with breeding and sale. Seven years ago, the Animal Welfare Act was put on the statute book. It was landmark legislation, and I pay tribute to the Labour Government who put it there. However, the legislation has not fulfilled its ambitions because many of the regulations promised under the Act have never materialised. One key example is the Pet Animals Act 1951, which protects the welfare of cats and dogs sold as pets. It became law when people bought animals from a pet shop. However, more than 60 years on people now buy pets online, which has created a whole range of problems with back-street breeders churning out kittens and puppies in an unregulated way. Too many loving pets are subjected to repeated breeding for sale online. There is some protection for dogs under the Breeding and Sale of Dogs (Welfare) Act, although this needs amending to reduce the number of legal litters from five to two, but there is no equivalent protection for cats, which often get overlooked in legislation.
I welcome the Government's support for the Pet Advertising Advisory Group which aims to make online pet ads more responsible. The noble Lord, Lord De Mauley, has played an important role in that, but it is only a start. The promised regulations under the Animal Welfare Act need to be brought forward; there needs to be a review of “hobby breeders” of kittens and puppies; and the work of animal charities in encouraging neutering needs support. When you consider that one unneutered female cat can be responsible for 20,000 descendants in just five years, you understand how central this issue is. The role of animal charities is vital here but a government-backed national neutering day might be an admirable way to support their tremendous work.
Secondly, microchipping is critical to the welfare of animals because it allows strays to be reunited with their owners. At present only 33% of dogs and a woeful 10% of cats arriving at Battersea are chipped. Cats Protection had to chip 86% of the cats it re-homed last year. This causes huge pressure on charities, which often have to re-home strays unnecessarily. It is good news that microchipping is to be compulsory for all dogs in England from 2016. However, what about the cats? Arguably it is even more important for them as so many of them roam freely and are out at night. Without making microchipping of cats compulsory, Defra could strengthen advice under the cat code, and if breeding was more tightly regulated, as I suggested, breeders could be obliged to microchip kittens before sale.
The third issue is companion animals, which I raised in Committee on the Care Bill, when I pointed out the huge role that cats and dogs play in the care of the elderly and the sick. My noble friend Lord Howe was encouraging in his response at that time and I hope the Government will ensure that guidance on the implementation of the legislation makes it crystal clear that the needs of individuals’ beloved pets, and the wishes of those individuals—who may often be very vulnerable or old—to keep them if taken into a care home, are included in individual care assessments.
Finally, I turn to anti-social behaviour and attacks by dogs on vulnerable, often elderly, cats. I know and hear of far too many distressing incidents where cats are set upon and killed by dogs. Cats Protection has logged 88 reported attacks this year so far, 89% of them fatal. These incidents—I was going to read out some of them but they are actually too distressing—can have a devastating impact on the lives of those who see a beloved cat killed in this way. The noble Lord, Lord Trees, set out the issue extremely well in his speech at Second Reading of the Anti-social Behaviour, Crime and Policing Bill and I endorse everything he had to say. I ask the Government to reconsider whether bespoke dog control notices to prevent attacks on protected animals are needed under the legislation, and to look at guidance to be issued under the Bill to ensure such appalling attacks are prevented.
These are the most crucial policy areas that need tackling and there are others I do not have time to address, including the important issue of updating the licensing regime for catteries and kennels and the role of animal welfare in the national primary curriculum. I know the Minister appreciates the breadth of these issues and I am delighted that Defra has established a canine and feline steering group to co-ordinate activity. Could the Minister ask that group to review the way existing legislation and regulation is working and to identify areas where out-of-date legislation needs overhauling or new regulations need bringing forward? Might it also be tasked with considering how future legislation impacts on the welfare of cats and dogs before it is brought to this House?
No speech on this subject could be complete without mentioning the charities that do so much in this area: Cats Protection, whose wonderful work I have seen at first hand; the Dogs Trust; Battersea; Wood Green; the Blue Cross; and the RSPCA. Their often life-saving work in looking after, neutering, microchipping and re-homing abandoned pets, as well as their educative work in schools, is beyond price. Much of that work— fundraising, fostering and running adoption centres—is volunteer-based. I pay tribute to everything volunteers and professional staff do to care for tens of thousands of defenceless and vulnerable animals. They are a crucial part of a civilised society and we applaud their dedication and commitment.
This is a subject about which I feel passionately. I have always believed that it is the priceless role of this House to give a voice to the voiceless, and what better example is there than to give a voice to our friends in the animal kingdom who have perhaps been cruelly treated, or abandoned, and in need of a caring home? For those of us lucky enough to live with a cat or a dog, their unconditional love becomes one of the most precious things in our lives. I have always sought to return that, but I want to ensure that all cats and dogs are as loved as those my partner and I have been privileged to share our lives with. This debate is a wonderful way to do just that, and I look forward greatly to hearing the contributions ahead.
Lord Hoyle (Lab)
My Lords, in opening I wish to say something that may be considered trite but which is nevertheless true. There is no such thing as a bad dog; what we have are bad owners. It is worth stressing that particularly now, coming up to Christmas time, when many people bring in pets that they believe they will love for life and then find out that the pets are difficult and tiring and need a lot of work. It is right that we are having this debate at this time and I congratulate the noble Lord on tabling his Question. While we may not want pets to be treated in that way, it will happen and a few months after Christmas there will be a lot more dogs and cats put out on the street. The emphasis being placed on this issue tonight will be helpful for the future.
I am also concerned about the breeding of fighting dogs. Perhaps the Minister can help me on this: why is the law not enforced more vigorously? For instance, I would like to know how many people have been prosecuted in the past 10 years for breeding fighting dogs. What about the people who organise the dog fights at which betting takes place? How many of those have been prosecuted? These are the problems that we need to look at, particularly when a good breed such as the Staffordshire bull terrier, which can be a lovable dog and a good family dog, is used in this way. Owners, particularly in London, use the dogs for their own protection. We ought to give attention to that in this debate.
The number of incidents involving injuries caused in attacks by dogs that are out of control has increased by 94% in the past 10 years. That is a very large increase. The number of people who have died since 2005 as a result of attacks by dogs totals 16. That is an increase to which we must pay attention. I was pleased that the noble Lord mentioned attacks by dogs on cats because it is nearly always fatal for them—and when it is not fatal, the cat is often badly damaged and frightened, and becomes even more timid about going out. That is another matter to which we must pay attention. I emphasise that this is about people and how they deal with their animals.
Another aspect is the illegal importing of dogs and cats. I hope the Minister will pay some attention to that because we need to zone in on it and try to prevent it happening.
It cannot be emphasised too much that one of the main priorities is that cats and dogs should be neutered whenever possible, and a national neutering day would be a very good idea. We must get through to people; why should there be unnecessary puppies and kittens, a lot of which come as a result of people who do not understand the importance of having their animals neutered? I join in paying tribute to the charities that are doing a wonderful job in providing neutering for no cost, which is encouragement in itself. Anything that we can do in that regard would be helpful.
Of increasing importance is the fact that more and more people are going overseas on their holidays and are putting their dogs and cats into kennels and catteries. We must try to ensure that these institutions and the people who run them are of a high standard. Many of them are—in fact the vast majority are and the people who run them do so because of their interest in animals. However, in many places the conditions are not as good as they ought to be. We ought to express an interest in that and do what we can to improve the standard of care that is provided by kennels and catteries. Let us try to bring them all up to the standard of those that are doing their best and are outstanding in that work.
Finally, because my time is up, how effective has the Animal Welfare Act 2006 been? I should like the Minister to comment because we can do an awful lot to improve the lot of our animal friends, who, as the noble Lord said, are important to all of us here—not only those of us taking part in the debate but millions of pet owners outside. I thank the noble Lord for raising this matter.
Baroness Parminter (LD)
My Lords, I am delighted to participate in this debate secured by my noble friend. I do so not as a dog owner, nor indeed as a cat owner—much to the chagrin of my 10 year-old daughter, who puts persistent pressure on me but I will resist. That is not to say that I do not understand the many benefits that cats and dogs bring to homes in our country in terms of companionship, health, and animals’ ability to encourage people’s better nature. It is important that this House is debating this issue and it does not do so enough. I pay tribute to my noble friend for securing this debate.
We as individuals have a huge duty of care to animals, and the way that we treat them is important. We should reflect on how we do so because it is also an indication of how we treat our fellow humans. Like others, I pay tribute to the welfare organisations that do so much for our companion animals. As a former head of campaigns and former vice-president of the RSPCA, it is no surprise that I shall focus on that organisation at a time when it is being targeted because of what is seen to be more political campaigning. I dispute that, but it nevertheless means that the vital work it undertakes in re-homing cats and dogs can be put to one side. The RSPCA is now re-homing more than 11,000 dogs and nearly 30,000 cats a year; we should remember that and pay tribute to the organisation and its volunteers who carry out that work.
I also acknowledge the work that this coalition Government have done on the welfare of dogs. As has been noted, it is this Government who will bring in compulsory microchipping for dogs, which will be incredibly valuable in reuniting pets with their owners; and it is this Government who plan to clear up some of the confusion in the legislation around the definition of a public place, so that criminal liability can be extended to private property.
The issue that I want to cover relates to the welfare of dogs and specifically the consolidation of dog legislation. As many Members will be aware, it is presently scattered among 10 pieces of legislation—soon to be 11 if the Bill that made us begin this debate late reaches the statute books. That plethora of legislation leads to confusion among the law enforcement agencies—dog wardens, RSPCA inspectors and others—about which legislation is right to use in different situations, be it dog fighting, straying, prohibition types or dangerous dogs. It also means that there can be some lack of clarity for the general public to know who they should report incidents and complaints about.
There are clearly a number of arguments in favour of dog legislation consolidation; I will concentrate on just four. The first is that the legislation we have at the moment tends to be very reactive, so does not prevent accidents from happening. It is interesting to note that both Northern Ireland and Scotland have recently passed legislation to make earlier intervention possible. Secondly, most of this legislation was drafted prior to the Animal Welfare Act 2006 and may not take account of the current understanding of dog behaviour and welfare. That is particularly true in the area of dangerous dogs, where it is generally accepted that there are critical developments and environmental influences which affect aggression, and that it is not just about the breed types. It is interesting that in America, in October I think—certainly this autumn—President Obama said that breed-specific legislation was ineffective and that the right approach should be to encourage responsible dog ownership regardless of breed.
Thirdly, the existing legislation is incredibly complex and has required an awful lot of legal testing. There is nothing wrong with that; court cases can often be very helpful in understanding what the legislation was seeking to achieve, but in the area of the Dangerous Dogs Act it has become extremely complex and expensive to enforce. The seizing and kennelling costs associated with enforcing that legislation in England and Wales alone for the police force is £4 million every year. We are also getting a ballooning number of prosecution cases, which is making the costs much, much higher for our hard pressed law enforcement agencies, including the police. Fourthly and finally, the trends in animal welfare are clearly all moving in the wrong direction. Cruelty prosecutions are up, the number of dog bites is up, the number of prosecutions for prohibited types is up, and the number of prosecutions for people not keeping their dogs under control is up as well. Something is clearly not working. We are not only compromising animal welfare but putting human safety at risk.
In conclusion, there are loud voices in favour now of consolidating the dog legislation. In a recent 2010 consultation for the Government, 78% of the public said that they were in favour of it, the EFRA Select Committee said that it was in favour of it, and we know that ACPO is as well. I ask the Government: what is their current thinking on the case for consolidating dog legislation welfare?
Lord Lexden (Con)
My Lords, I come from a family of proud dog lovers. My long standing personal friend and noble friend Lord Black of Brentwood, to whom we are all deeply indebted for this debate, has spoken eloquently of his lifelong devotion to cats. There is ample room in the human heart for both. Churchill regarded both cats and dogs with great affection and from time to time brought them together in happy co-existence. During his peacetime premiership, he had for some while the exclusive companionship of a fine poodle, named Rufus. Then in October 1953, a pretty black kitten was found on the steps of No. 10 where, over the years ahead, under Conservative, Labour, and coalition Governments, a succession of felines would turn up. The 1953 kitten rushed to Churchill and jumped on his knee to begin deep, contented purring. “It has brought me luck,” Churchill declared. “It shall be called Margate,” he added, without further explanation. He presumably had in mind the seaside town where he had recently delivered a triumphant speech to the Conservative Party conference. Rufus went off to bed in a sulk, but swiftly came to terms with the new situation and contented to share his world famous master with the new arrival.
It is fitting that we should discuss in the same debate the welfare of two animals that have given so much companionship to so many people, and will continue to do so. They all deserve the best possible care, but as my noble friend Lord Black of Brentwood has shown so distressingly, today too many of them are the recipients of harshness and cruelty, not love and affection.
The Question before us happily relates to the entire United Kingdom and so provides an opportunity for me to make brief reference to Northern Ireland, a part of our country to which I am particularly attached. Animal welfare issues come within the ambit of the Northern Ireland Assembly, but that is no reason to exclude them from consideration here. At every level there is much that Belfast can learn from Westminster and vice versa. A new chapter in the history of animal welfare in the province opened last year with the implementation of the Welfare of Animals Act (Northern Ireland) 2011, which introduced—very belatedly it must be said—the major new legislative framework of protection created in England and Wales by the landmark 2006 Act. Enforcement of the law, which had previously rested with the police, has passed to Northern Ireland’s 26 local councils. They have banded together to appoint five—just five—animal welfare officers.
There is much for the group of five to do. A rising tide of abuse and neglect is plainly apparent to the Ulster Society for the Prevention of Cruelty to Animals, the world’s second oldest animal welfare charity, founded in 1836 and to whose work I pay tribute. All sections of the community have always been served with unwavering dedication both in times of turmoil and in the better times that now exist. The USPCA backs wholeheartedly the calls being made throughout the country for action in schools, particularly primary schools, to equip the young with a proper sense of responsibility towards family pets.
Some appalling recent cases of cruelty have been uncovered by the USPCA. For example, a single family in North Down now faces some 200 charges arising from the attacks it unleashed first on badgers and subsequently on pet cats, using dogs including illegal pit bull terriers. In its most recent report, the USPCA expressed profound concern about the increasing number of puppy farms, which nothing is likely to halt while advertising on the internet remains unregulated. As an officer of the USPCA put it to me:
“The sums to be made are astronomical and public awareness is low”.
As regards cat breeders, no arrangements for inspection exist. The USPCA states that:
“A kitten would have to die for reasons attributable to the breeder before any action could be considered by a welfare officer”.
Will the new legislation make a significant difference? Will there be an increase in prosecutions on a similar scale to that recorded in England and Wales after the 2006 Act? The early signs are not encouraging. In 2012-13, just one person was successfully prosecuted. The USPCA is concerned that undue use is being made of improvement notices in cases where prosecutions are needed. But in the ineffable prose in which our public authorities delight, the Society of Local Authority Chief Executives, known as SOLACE, looks serenely ahead. It has a project board that,
“continues to hold stakeholder events to build relationships and an understanding of roles and responsibilities and to discuss a wide range of animal welfare issues”.
A rather more vigorous approach would be preferable.
The Northern Ireland Executive need to instil a far greater sense of urgency and purpose into the civil servants and officials with whom they are so generously supplied. I hope that my noble friend the Minister, who is devoting so much time and care to the welfare of cats and dogs in this part of the country, will encourage Northern Ireland Ministers to follow his fine example. He might, in particular, press them to consider putting the USPCA on the same footing as the RSPCA as regards investigatory and enforcement powers. Let us do things in the same way throughout our country where that is the best course.
Lord Trees (CB)
My Lords, first, I thank the noble Lord, Lord Black, for initiating this debate, which, as he pointed out, is the first that we have had on this subject for some time, and it is very timely.
In recent years, a number of cultural, social and economic developments have dramatically affected the well-being and welfare of our pet dogs in the UK. Many of these changes are associated with the breeding of dogs and their subsequent fate, and it is this aspect of canine welfare on which I want to concentrate.
Some issues have been evolving over many years—notably the breeding of dogs with exaggerated physical conformations, which are detrimental to health. Indeed, this was an issue that worried me greatly when I was in practice some 40 years ago. The matter was thoroughly reviewed by Sir Patrick Bateson’s independent inquiry into dog breeding in 2010, and remedial action is being taken by, among others, the Kennel Club and the Advisory Council on the Welfare Issues of Dog Breeding, which was set up as a consequence of the Bateson report.
Such action is very welcome, but I have to say that it is at the very least an embarrassment that this matter was brought to a head by a TV programme and not by those working closely with pedigree dogs, including the Kennel Club, the dog charities and, regrettably, the veterinary profession. We have all been complicit in creating animals that have been so deformed that they have suffered unnecessarily because of physical conformation. I am not talking here about the more complex genetic diseases which affect a proportion of some breeds and which require genetic and epidemiological investigation to predict; I am talking about anatomical deformations, plain for anyone to see. Sadly, there is still a culture which regards dogs as fashion accessories. We must ensure that in future the whims of human fashion do not dictate animal structure to the detriment of the health of those animals.
A more recent development has been the emergence of puppy farming, which is now taking place on an alarming scale. For example, the counties of Carmarthenshire, Ceredigion and Pembrokeshire alone, according to Puppy Alert, have a total of 162 licensed premises, which are thought to produce some 28,000 puppies a year destined for the pet trade in England. The RSPCA estimates that some 50,000 dogs are imported from Ireland alone, and then there are imports of unknown quantity from mainland Europe. The conditions under which these animals are bred are often totally inappropriate, with overcrowding, lack of hygiene and lack of attention to the social needs of the animals. This supply chain leads to a complete separation of the dog breeder and the parent bitch from the puppy offspring and the ultimate dog owner. This is bad for the ultimate owner and certainly detrimental to the well-being of the pup. This dissociation is further exacerbated by the now widespread practice of selling puppies over the internet, to which several noble Lords have referred. One has to ask whether the internet is an appropriate way of selling a dog, but I fear that there is little that we can do about that.
Paradoxically, this commercial exploitation and proliferation of dog breeding, often by criminal gangs, has been accompanied by a huge increase in the number of stray dogs. The Dogs Trust estimates that around 126,000 stray dogs were seized by local authorities in the year to March 2011, and the financial burden on charities and local authorities of dealing with the stray dog problem has been estimated at nearly £60 million. Finally, the growth in cross-border trade—especially illegal trade—exposes the British dog population and, indeed, humans to the increased risk of imported diseases, some of which are unique to dogs but others, such as rabies, are fatal to humans.
What can be done? First, there is much that can be, and is being, done by bodies interested in the welfare of dogs voluntarily to improve the situation by education, information and co-ordination. Defra has published on its website excellent guidelines to follow when buying a cat or dog. The BVA Animal Welfare Foundation and the RSPCA have collaborated to launch the Puppy Contract and the Puppy Information Pack, which provide advice and, on a voluntary basis, have the buyer and seller agree on their responsibilities with regard to the animal’s health and well-being. Furthermore, the Pet Advertising Advisory Group has provided guidelines for websites that advertise puppies for sale, and those guidelines have been adopted by at least two of the websites involved.
However, there is a need for some strengthening of statutory controls, and I submit that it would not need new primary legislation. The potentially excellent Animal Welfare Act 2006, to which many noble Lords have referred, has laid down clear responsibilities for all animal keepers. In addition to the provision of adequate food, water and living conditions, it requires owners to cater for the social needs of animals, to allow animals to express their normal behaviour and to provide,
“protection from, and treatment of, illness and injury”.
Only modest subsidiary measures under the Animal Welfare Act 2006—for example, expansion of the guidelines and welfare code for dogs—would be required to render it unambiguously applicable to some of the above problems around dog breeding, and that would allow the repeal of the Breeding of Dogs Acts of 1973 and 1991 and the Breeding and Sale of Dogs (Welfare) Act 1999.
Lord Gardiner of Kimble (Con)
I apologise to the noble Lord but he is going into the time that will be available for the Minister’s reply.
Lord Trees
Other issues require more rigorous enforcement of existing legislation.
In conclusion, with the refinement of existing regulation and proper enforcement, the Animal Welfare Act could be used better to safeguard the health and welfare of dogs and to ensure that dogs are bred with due regard to the health of their offspring. I urge the Government to consider such action.
Baroness Fookes (Con)
My Lords, before I get launched and forget, I must declare an interest as a vice-president of the RSPCA and president of one of its local branches. I also chair a charity that seeks to raise funds and channel them to the Companion Animal Welfare Council, which was set up originally by my noble friend Lord Soulsby and others, with the object of providing expert advisory guidance on all matters relating to companion animals. The idea of the noble Lord, Lord Soulsby, was that eventually it would become like the Farm Animal Welfare Council, with some government support. Unfortunately, finances are such that this has never happened. Indeed, we are now finding it difficult to raise funds, at a time when it is so difficult for all the animal welfare charities that previously contributed to it. It has produced a number of interesting reports, one of which went to Defra when it was considering, in its embryonic form, what became the 2006 Act. It has also considered dog registration and other matters.
I am, of course, delighted that dog registration will become compulsory, with microchipping, in 2016, but I have to tell the Minister that I personally, like many others, have waited a long, long time. When the old dog licensing legislation was abolished in the 1980s, I suggested that compulsory registration, brought up to date with the then new microchipping, would be a good idea. In the other place I sought on two separate occasions to attach it to other Bills, with a total lack of success. So I am very pleased now, because I think it will do more than anything else to improve the welfare of dogs and help to deal with the appalling problem of strays, which has been so distressing to many of us for years, and also the unwanted dog population.
The noble Lord, Lord Hoyle, mentioned dog fighting—a particularly horrible and barbaric so-called sport. He wondered why there were so few prosecutions. I fear that the reason is that the very secretive groups of people who undertake this are very good at finding distant places where they may engage in it. For example, when I was a Plymouth MP, we knew that Dartmoor often provided ideal opportunities for people to hide away and engage in that barbaric practice. I know from talking to RSPCA inspectors that they virtually had to go underground, practically in disguise, to penetrate such groups. It is not an easy thing to do.
Something of great concern to me at the moment is the use of electronic collars for the so-called training of dogs. As far as I am aware—unless the Minister can tell me otherwise—it is still legal, but I think it should be outlawed. The matter could well be embraced in one of the codes under the 2006 Act. I hope that the Minister will look into that as a matter of urgency.
There are innumerable other matters with which one could concern oneself, but let me now turn to the subject of cats. Like my noble friend Lord Black, I am a great lover of cats as well as dogs. One of the most miserable parts of my life in animal welfare has been seeing how many cats are unwanted. Sometimes they become feral. The animal welfare charities are unable to deal with them all properly, and one of the most miserable things one can do is to go to one of the welfare establishments where there are cages upon cages of animals waiting to be re-homed. They all look adorable, and one wants to take them all home. In fact, years ago when I chaired the RSPCA, my mother was still alive and I used to take her round on visits—until finally she said, “I can’t bear to see any more of these unwanted dogs and cats. Please don’t ask me to come with you again.” We still have the problem; it never seems to go away.
I hope that the Minister will look again at the issue of unwanted animals, particularly cats. I am sure that, as other noble Lords have suggested, a lot could be done with a really good neutering programme. The animal welfare charities do their best, but I believe that the Government themselves should be taking a more urgent look at this. Dare I suggest that they might put a little money towards it? I am probably addressing deaf ears—very deaf ears. None the less I shall make the point, because it is time that Governments took more responsibility, rather than waving it off to local authorities, animal welfare charities—you name it. I am aware that my time is up, so I shall sit down in hope.
Lord Knight of Weymouth (Lab)
My Lords, may I first congratulate the noble Lord, Lord Black, on securing this excellent debate and on the way in which he introduced it? The noble Baroness, Lady Parminter, is right to resist getting a dog or a cat until she is ready. I was not so strong, and have two delightful dogs, Chesil and Otis, at home.
We are a nation of animal lovers. One quarter of us have a dog and a fifth of UK households have a cat, but it is clear that, as has been reiterated by the noble Baroness, Lady Fookes, and others in the debate, there are more cats, kittens, dogs and puppies than there are good homes for them. The noble Lord, Lord Hoyle, has given us a timely reminder of the need to educate owners and potential owners in the run-up to Christmas.
The defining legislation is, of course, as we have heard, the Animal Welfare Act 2006, brought in by the Labour Government. Under that Act, powers exist for secondary legislation and codes of practice to be made to promote the welfare of animals. I know that the Government are considering a number of specific issues, including updating or bringing in new regulations or codes. Until such new provisions are made, existing laws will continue to apply. We look forward with impatience. As a result of that legislation, there is guidance for pet owners and codes of practice that can also be used in courts as evidence in cases brought before them relating to poor welfare. Clearly, owners should therefore be aware of them and I wonder whether the Minister has any plans to publicise them further through vets, pet shops, pet insurers or other media.
There is a plethora of legislation relating to the keeping of cats and dogs, their sale and their welfare. Your Lordships’ House is separately debating the need for stronger dog control. I pay tribute to the work of Angela Smith MP and Julie Hilling MP who are driving a lot of this work in the other place, and to my noble friend Lady Smith of Basildon who is leading for this side on the Bill that we are interrupting this evening.
When we ask people about the welfare of dogs and cats, many ask what we can do about breeding and better regulation of breeders. The Breeding and Sale of Dogs (Welfare) Act 1999 provides protection for dogs used in breeding establishments. Under this legislation, any person who keeps a breeding establishment for dogs at any premises and carries on at those premises a business of breeding dogs for sale must obtain a licence from the local council. Those people who are not in the business of breeding dogs for sale—the so-called hobby breeders—and produce fewer than five litters in any period of 12 months do not need a licence. I would be interested in whether the Minister agrees with the noble Lord, Lord Black, and others who argue that this should be lowered to two litters in 12 months and whether that should be extended to cats.
The local council has the discretion under current legislation whether to grant a licence and, before doing so, must satisfy itself that the animals are provided with suitable accommodation, food, water and bedding material; that they are adequately exercised and visited at suitable intervals; and that all reasonable precautions are taken to prevent and control the spread of diseases among dogs. Local councils are responsible for enforcing the legislation. I am interested to know the Minister’s judgment as to whether he believes that councils still have the resources and expertise to do that.
In addition to ensuring that dogs are kept in suitable accommodation, the law also places limits on the frequency and timing of breeding from a bitch. Bitches cannot be mated before they are one year old, must have no more than six litters in a lifetime and can have only one litter every 12 months. Breeding records must be kept to ensure that these requirements are adhered to. Puppies produced at licensed breeding establishments can be sold only at those premises or a licensed pet shop. There is no mention of the internet. Does the Minister agree that this regime needs to be revisited?
The Welsh Assembly Government are acting: they began a three-part consultation in 2010, which ended last month. It seeks to repeal the Breeding of Dogs Act 1973 and replace it with regulations made under Section 13 of the Animal Welfare Act in relation to Wales. The policy intent is to improve the animal welfare of all dogs on licensed breeding establishments. Importantly, once again, we in England are being left behind. Wales will have consulted and be reforming the laws on dog breeding before the coalition Government have even begun.
On this side, we therefore call on the Government to follow the leadership on animal welfare being demonstrated by the Labour Administration in Wales and to consult on the law and regulations on breeding of dogs and licensed breeding establishments in England so as to repeal outdated legislation and bring forward new regulations to improve the animal welfare of all dogs on licensed breeding establishments.
The Pet Animals Act 1951, as amended in 1983, protects the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council. That council may attach any conditions to the licence, may inspect the licensed premises at all reasonable times and may refuse a licence if the conditions at the premises are unsatisfactory or if the terms are not being complied with. Councils are responsible for enforcing the law in this area and anyone who has reason to believe that a pet shop is keeping animals in inadequate conditions should raise the matter with the council. However, much of this Act, which was written in 1951, is still relevant but much is out of date. Even its 1983 revision predates internet sales of pets, which we have heard is rife. Pets cannot be sold in the street, on barrows or at markets but they can be sold on the internet. Will the Minister please tell us when that will be updated?
If I had time, I would talk about puppy farms, which have been addressed well by the noble Lords, Lord Lexden and Lord Trees. I would also have referred to the excellent brief by Cats Protection and have raised the issues around neutering, which were so admirably raised by the noble Lord, Lord Black.
I have run out of time. We have had a good debate and I look forward to hearing answers to some of the questions from the Minister.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, I congratulate my noble friend Lord Black on securing a debate on this important subject. I echo the generous comments made by him and other noble Lords about the wonderful charities operating with pets. My noble friend reminded me, as did the noble Lord, Lord Knight, that I, too, should declare an interest as a 50% shareholder in a rescue poodle crossed with a Shih Tzu. I am not sure of the breed name for that.
Although I am the Minister with responsibility for companion animal welfare, my ministerial remit applies only to England. As noble Lords will know, animal welfare is a devolved policy area in the United Kingdom, so I hope my noble friend Lord Lexden will forgive me if I therefore focus on what we are doing to improve welfare for cats and dogs in England. He might like to know that I regularly meet with Ministers from the devolved Administrations and our discussions range widely.
Promoting responsible pet ownership—something referred to by the noble Lord, Lord Hoyle—remains a clear element of the coalition commitment. More responsible pet owners lead to improved welfare for all pets. The comprehensive legislation providing for and underpinning the welfare of all pet animals is the Animal Welfare Act 2006, and my noble friend paid a fitting tribute to the previous Government for so legislating. That Act not only introduces offences for animal fighting and cruelty, but offers a preventive element by placing a duty of care on owners to provide for the welfare needs of their animals. There are statutory codes of practice on the welfare of cats and dogs that summarise the important things to consider when making decisions on how to care for a pet.
A number of noble Lords, including my noble friend, spoke of the sale of pets and in particular the Pet Animals Act 1951. I understand that there were proposed plans under the previous Government to review existing legislation following the introduction of the Animal Welfare Act 2006. However, they did not pursue the matter. This Government are not pursuing an overhaul either. Having said that, legislation is already being looked at under the red-tape challenge. In the context of my noble friend Lady Parminter’s broad question, perhaps I can return to that later.
In addition, noble Lords are well aware of timetabling pressures. We need to focus on the most urgent changes necessary to protect public safety. We see those changes now in Clauses 98 and 99 of the Anti-social Behaviour, Crime and Policing Bill currently before your Lordships. Rather than take time now—and we will be short of time—I hope that noble Lords are prepared to have those debates when we come to those parts of the Bill.
Where someone is in the business of selling animals as pets in a pet shop or through any other medium, they must be licensed under the 1951 Act. Despite being more than 60 years old, the Pet Animals Act still requires someone who is in the business of selling animals to have a valid licence from their local authority. I will return to that subject in a moment.
As well as important legislative changes we are making to improve the welfare of cats and dogs in United Kingdom, we are also taking forward important non-legislative policies and tools. The key issue here, as my noble friend Lord Black said, is the advertising and selling of cats, dogs and other pets online, which is increasingly controversial as the use of the internet to facilitate such sales increases. We have seen prohibited dogs for sale and cats and dogs kept in unacceptable conditions being advertised. I know that some organisations have called for the advertising of pets online simply to be prohibited. However, having considered this very carefully, my position is that such an approach would be very difficult to enforce and indeed would be likely to increase the risk of pushing unscrupulous advertisers underground.
We stand a much greater chance of success by engendering an improved culture in how our pets are bought and sold in this country. This must be done by better education of buyers, sellers and those in the middle, such as advertising sites that link the two. To that end, I thank the members of the Pet Advertising Advisory Group for their work in this area and their successes so far.
PAAG is a group of animal welfare, keeping and veterinary organisations that have come together to look at the issue of pet advertising. In September, I was privileged to represent the Government in endorsing their minimum standards for classified websites, attending the launch of the standards and holding a meeting with representatives from seven of the most prominent classified ad sites in the country. The engagement with PAAG and the Government on this matter by the sites has been really very encouraging, and I am grateful.
We are also working with PAAG and the sites to ensure that potential new pet owners are as fully informed as possible about ownership and the responsibilities that it brings. This is especially important today when purchasing a pet is so easy. Most of the websites already provide welfare advice and we are aiming to top this up with on-screen devices such as pop-ups that will further remind new owners of their duties under the Animal Welfare Act and the responsibility that comes with owning a pet.
In the past year, and as part of the move to the new GOV.UK website, we have included additional information on points to consider when buying a puppy and highlighted important organisations, which are well placed to offer detailed advice in order to ensure that your puppy is healthy. We will continue to remind the public of using the valuable resources that are already available—such as the BVA AWF puppy contract when considering buying a puppy. The wonderful pet charities have extensive user-friendly information available. Above all, we urge the public to consider re-homing a rescue cat or dog before buying a kitten or puppy.
Like the noble Lord, Lord Hoyle, I am conscious that we are approaching the festive season when people begin to consider pets as presents. I reiterate the 35 year-old message that a pet is for life. It is a message that the Government will be sending out over the next few weeks to ensure that pet ownership is not seen as a light undertaking.
The work on advertising of cats and dogs crosses over into that of breeding, as we see significant numbers of puppies and kittens for sale, as noble Lord, Lord Trees, and others mentioned. As noble Lords will know, there is legislation on the breeding of dogs to protect the welfare of all dogs involved.
Under the Breeding and Sale of Dogs (Welfare) Act 1999, local authorities have the power to license those in the business of breeding dogs. I reiterate that the so-called five litter test, which is referred to in the legislation, is a maximum, not a minimum limit. Whether someone needs a licence is first and foremost about whether they are in the business of breeding and selling dogs. There is an obvious read-across into how HMRC defines trading for tax reporting purposes. It helpfully provides nine indicators to aid individuals and authorities in determining whether their earnings are from trading. If some of these indicators are met by dog breeders, then they are in the business of breeding dogs and must be subject to licensing conditions. But even if someone is not in the business of breeding, anyone producing five litters or more per year must be licensed.
For further clarity, I think it is worth addressing the issue of so-called “hobby breeders”, which some noble Lords have referred to. Where hobby breeders are in the business—for instance, there is a profit-seeking motive or a systematic selling system—then these too should be licensed, even if they breed only two litters per year.
I should also emphasise that all breeders of dogs and cats, regardless of their licensing status, may be investigated by local authorities under the Animal Welfare Act where there are welfare concerns. It is for local authorities to prioritise such activities in their area and demonstrate the level of necessary resource that should be allocated. The public should alert their local authority where they have welfare concerns on any breeding establishment or if they believe an unlicensed breeder should be licensed.
The noble Lord, Lord Trees, spoke of standards of breeding. I am very heartened by initiatives such as the BVA and the Kennel Club canine health schemes, and veterinarians are generally being proactive in educating breeders and owner clients on the health consequences of breeding dogs with inherited disease or extreme conformation. The work here of the Advisory Council on the Welfare Issues of Dog Breeding to improve standards is very welcome. The noble Lord, I hope, will be pleased to hear that Defra is assisting in supporting updating of the guidance for breeding establishments, which will be released shortly and should contribute to better implementation and enforcement of the regulations.
I am about half way through what I wanted to say, but I have just been told that I have no more than two minutes left. I will go as far as I can and then if I may write to noble Lords on points that I am unable to cover. My noble friends Lord Black and Lady Fookes made important points about the benefits of neutering. The Government recommend that owners ensure their pets are neutered in order to limit the number of accidental litters and safeguard the welfare of existing animals. I know that a number of charities are strong advocates of neutering. I cannot commit to a government-backed national neutering day, but we will certainly work with those I have mentioned in order to ensure that the public receive the right message on neutering.
My noble friend Lord Black referred to attacks on cats. Such attacks are immensely distressing for owners and, clearly, for the pets involved. I can assure my noble friend that this is something the Government take very seriously. It is not the norm for dogs routinely to attack cats, although many naturally have a chasing instinct. I will write to my noble friend further on that.
I know that I have to write my noble friend Lady Parminter on the consolidation of the dog legislation—not something that we propose to do, but I need to explain to her why not. Likewise, I must write to my noble friend Lady Fookes about electronic training aids, which is an important subject. I have made sure that I have personally experienced those aids, so that I can form an opinion on them. Yes, I survived.
I wanted to find a moment to tell my noble friend that Defra’s chief vet will be holding an “Ask Defra” session on cat welfare and cat protection shortly.
In closing, I thank noble Lords for an interesting debate on this important issue which is, as your Lordships know, something in which I am particularly interested. I hope that what I have said this evening, perhaps combined with what I shall say in writing, will be useful to clarify what the Government are doing and the work we continue to do in this area.
Anti-social Behaviour, Crime and Policing Bill
(10 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I should probably start by saying, “as I was saying”. I apologise again to the Committee for some confusion about an earlier amendment. Members of the Committee were either excessively polite, in the manner of your Lordships’ House, or completely unengaged with what I was saying, and did not interrupt me for some time. I am grateful to the noble Lord, Lord Ahmad, for eventually doing so.
I do not want to repeat what I have already said, but refer the avid reader of Hansard back to the report of earlier this evening. I will repeat my requests that we discuss before Report the relationship between how statutory nuisance and nuisance under the Bill are dealt with. Community protection notices, particularly noise abatement notices, address very similar problems. I am aware that guidance will have a role to play here, and I hope to contribute to it.
Amendment 22NA, which provides that the detriment under Clause 40(1) should be significant, speaks for itself. It should be more than a de minimis matter. Amendment 22ND deals with the possible clash of the use of CPNs and existing statutory powers, as does Amendment 22NE. Amendment 22NF, unlike the earlier amendments, seemed desirable to me—I do not mean that the others are not desirable but that this is my drafting, not someone else’s. I suggest that the community protection notice should explain not only the points set out in Clause 40 but the remedial action proposed given the powers to be provided under Clause 44, which will essentially allow the local authority to go in, carry out work and charge.
Amendments 22QD and 22QE take us into Clause 43, which is about appeals against community protection notices, and are probing in the hope that the Minister will be able to confirm that modification of a notice which the magistrates’ court may make on appeal can be only in favour of the applicant and that modification can include variation by reducing the requirements—in other words, that the appellant will not be in danger of finding himself with harsher restrictions or provisions. I beg to move.
Lord Greaves (LD)
My Lords, I have tabled Amendment 22QC in this group, which I will comment on in a minute or two. Since this is the first group about community protection notices, I thought that it might be helpful to say a few things on the back of that about them generally. Of all the new measures to deal with anti-social behaviour that are being put forward by the Government in their new battery of weapons, I am most enthusiastic about community protection notices if they are done in an appropriate way.
My first question to the Government is about those notices, which may be issued on reasonable grounds that,
“the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and … the conduct is unreasonable”.
In what ways does this differ from the criteria and the test in Clause 1 for serving an IPNA? These require that a person,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.
What is the difference between “nuisance” and “annoyance” on the one hand, and on the other conduct that,
“is having a detrimental effect … on the quality of life”,
of people in the locality? I am not entirely sure what the difference in meaning is but perhaps the Minister can tell me.
Secondly, what kind of things are community protection notices intended to deal with? Clearly, they are intended to deal with different things from injunctions to prevent nuisance and annoyance. There is a hint in Clause 54, which talks of repeals and transitional provisions of litter abatement notices and two other litter notices under the Environmental Protection Act 1990, and of defacement removal notices under the Anti-social Behaviour Act 2003, which refer to graffiti really. What else is there? Is this just about litter and graffiti? I am sure that it is not, but for what other things do the Government envisage that this potentially wide-ranging power could be used?
For example, could it be used to deal with accumulations of rubbish in the back yards of empty houses, or of houses where tenants do not care too much about such things? Could it be used to deal with odour, if someone was making regular bonfires and causing lots of smoke in the area? Could it be used for animal nuisances, such as dog dirt? Could it be used for somebody who insisted on hanging out their washing across the front street rather than in other appropriate places at the back? Could it be used against gatherings in the street—for example, if people wished to use it, in the complaints being made at the moment about Roma people in Sheffield? Would this be an appropriate way of dealing with that or, whether or not it is appropriate, could it be used for that? It would be very helpful if, after this debate, the Minister could list 10 useful things it could be used for. Then we will have a fairly good idea of whether those of us who are local councillors and so on might consider that this is a power which we can use.
There are some concerns that a number of these powers and the existing ASBOs criminalise anti-social behaviour if notices are not complied with, although things such as litter already involve the criminal law. If this is an exciting new power that can be used for all sorts of things in a proportionate manner, there are concerns about the lack of resources, and of new resources, for local authorities to use it. As I keep saying in debates in this Committee: tackling anti-social behaviour and nuisances, and helping to make our residential streets more civilised places at local level, is resource-intensive. It means lots of different agencies co-operating.
For example, in my ward, every month there is a local environmental audit. People from the local neighbourhood policing team, localities officers, councillors and people from the council’s anti-social behaviour unit and its refuse collection and litter sections go round with a little wagon. If there are any accumulations of rubbish, they do not bother serving notices on anybody; they just stick it in the wagon and take it away. That kind of thing is quite resource-intensive and, at a time when all local authorities are under real pressure, it is the kind of thing that will be found difficult to keep going. Yet these powers will be no good whatever unless there are people on the ground who can investigate reported problems, see problems for themselves and have the resources to serve the notices, follow them up and deal with the people.
Amendment 22QC probes what happens in a slightly interesting situation. If you serve a notice in relation to a nuisance that refers to a piece of land and the person who you are serving it on transfers its ownership from, for example, one company that they own to another that they own or are involved in, or to their wife or their husband, you have to start all over again because you are dealing with different people. The proposal I am putting down here does not work but is there to probe. Have the Government got any ideas about how to deal with this? A remarkably high proportion of anti-social behaviour problems are caused by a few individuals who just enjoy playing the system and opposing the council. They regard it all as a great game. How on earth we deal with these people, I do not know but if my noble friend the Minister has any ideas, I would certainly like to hear them.
Lord Harris of Haringey (Lab)
My Lords, at the risk of being mischievous, to some extent I am going to be. When the Minister responds to the noble Lord, Lord Greaves, with his list of 10 things that local authorities might use these powers for, he might tell us whether the powers would extend to a local authority issuing community protection notices in respect of, say, a string of shops down its high street that promote payday loans. That is conduct having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality. Would it apply to the behaviour of a series of off-licences? In many high streets the only shops are betting shops, off-licences and payday loan companies. Would it be open to the local authority to serve community protection notices on those businesses setting a requirement that they should, effectively, cease to do business?
I am sure that that is not the intention of the legislation and I am not trying to belittle the important intention of the legislation in terms of the sorts of persistent nuisance that the noble Lord, Lord Greaves, is thinking of and that I, as a former local councillor, can certainly think of. These provisions require perhaps just a little clarification as I am sure that an inventive local authority lawyer could find all sorts of interesting ways in which you might argue that bodies are having,
“a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality”.
I could labour the point at some length with many more examples but I suspect that the Minister’s patience—already wearing thin—will not survive it.
Lord Rosser (Lab)
My noble friend Lord Harris of Haringey has made the very powerful point that, frankly, everything depends on how intelligently or otherwise community protection notices are sought and applied and—to use the Minister’s words—whether anybody is acting mischievously in trying to seek or impose these notices. I am sure that when the Minister responds to the debate he will assure us that everybody will use them intelligently and everybody will work together in a great, grand partnership. That has been his basic theme throughout our debates but, of course, the Minister has no idea whether that will actually happen. I am sure that it will happen in the vast majority of cases, but it certainly will not happen in every case. The Minister must know that it is almost certain that, before long, the provision for community protection notices will be used in a way that is not being envisaged at the present time and, to that extent, is likely to be abused.
I will speak in particular to Amendments 22NB and 22NG which stand in my name. If a community protection notice is issued to an individual or body, the Bill states that they are required to,
“take reasonable steps to achieve specified results”.
Amendment 22NB deletes this wording because we would like to hear a little more from the Minister as to how this phrase will be interpreted and how it is expected to work. Can the Minister explain what counts as “reasonable” in this context and who will define what would be “reasonable steps”? Is it the intention that the person or body issued with a community protection notice will be told by the person issuing it what will be deemed to constitute,
“reasonable steps to achieve specified results”,
or is that all to be left up in the air?
Clause 40(3)(a) and (3)(b) refer to “specified things” with no requirement to take reasonable steps to do them but Clause 40(3)(c) refers to “specified results” and has a requirement to “take reasonable steps”. Why is there a difference in wording? If the reference to “reasonable steps” is so important, why does it not appear in Clause 40(3)(a) and (3)(b), which refer to “specified things”?
I turn now to Amendment 22NG. Clause 40(8) states:
“A community protection notice may specify periods within which, or times by which, requirements within subsection (3)(b) or (c) are to be complied with”.
Can the Minister explain why the Government have chosen to use the word “may” and not something more specific, such as “must” or “shall”? Why do the Government feel that there is no need for a specified period within which the requirements will be complied with—that is, requirements that are fair and clear to both the recipient of the community protection notice and the community itself? In what circumstances would a specified period not be helpful or would cause difficulties?
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, these amendments seek to make a number of changes to the test for a community protection notice and to the arrangements of the service of a notice and the appeal against a notice. They also deal with the relationship with existing legislation, namely the statutory nuisance regime. I will first address the amendments in the name of my noble friend Lady Hamwee.
Amendment 22NA seeks to ensure that any detrimental effect on an individual is “significant” in order for the test to be met and the notice issued. I appreciate that a community protection notice should not be issued lightly. However, the test already includes appropriate safeguards. Not only does behaviour have to be persistent or continuing as well as unreasonable, but the individual in question has also to be served with a written warning. That is on top of any formal interventions that the council or a police officer may have already tried. By the time a community protection notice is issued there can be no doubt in the perpetrator’s mind that their behaviour is unacceptable. At that point the council or the police should be able to act, and quickly, to prevent further harm being caused to victims or communities.
I do not believe, given the multi-limbed test and written warning, that trivial or benign behaviours will be dealt with using the new notice. Not least, it is hard to see how those could be considered “unreasonable”. As my noble friend is aware, we have already published draft guidance for professionals, which provides some information on how the test should be interpreted. We are working closely with professionals and victims’ groups over the coming months to ensure that this is as helpful as possible. I will be very happy to look at this further to ensure that guidance is fit for purpose.
Amendment 22NF is well intentioned and I can understand why my noble friend raises it. When a community protection notice is issued, she is right that the person issued with it should fully understand the consequences of what is happening. In fact, as the draft guidance outlines, we would consider it good practice for some of this detail to be also included in the written warning. Under Clause 40(7)(b), the effects of Sections 43 to 48, including the possibility of remedial action and the financial implications of that, have to be outlined in the CPN, so that is already covered. Councils or the police should not be required to outline exactly what remedial action could be undertaken in case the situation changes. However, there is certainly nothing to stop the local agency from including it if appropriate. The purpose of a community protection notice is to require the person on whom it is served to take specified action. The power for a local authority to take remedial action is very much a fallback.
Amendment 22QB seeks to delete the ability for an authorised person to enter premises to serve a notice. I assure my noble friend that this is not a power of entry in the traditional sense. It simply allows the authorised person, when the occupier or owner is unascertainable, to serve the notice. That is only possible,
“to the extent reasonably necessary”.
For instance, where the problem occurs on derelict land that is owned by someone who cannot be identified, the authorised person can go on to the land to post the notice on, for instance, a prominent building on the site such as a shed. In many cases, posting the notice on the exterior of a building may be sufficient. It certainly does not give the authorised officer the ability to break down doors to serve the notice.
Amendments 22QD and 22QE seek to clarify the powers of the court when an individual appeals against a CPN served on them. I agree with my noble friend in the case of Amendment 22QE: the courts should be able to vary the notice by reducing the requirements. However, I believe that this is already covered in Clause 43(4)(b), which allows for the notice to be modified. I can also understand the point made by Amendment 22QD. It is hard to envisage a situation where an appeal would result in a notice being modified in a way that was not in favour of the appellant. However, the courts should have the flexibility to modify a notice in this way if it thinks that it is appropriate. Therefore, I do not believe that we should make this change to the legislation.
Amendments 22ND and 22NE bring us back to the subject of statutory nuisance. As my noble friend explained, the amendments are designed to ensure that there is no overlap between the new CPN and the statutory nuisance regime, established under Part III of the Environmental Protection Act 1990. Amendment 22ND would ensure that the new notice was not used wherever conduct was already subject to a control under another statute. Amendment 22NE goes further still and seeks to carve out noise nuisance from the new CPN. This goes completely against what we are trying to achieve through these reforms, and I hope my noble friend will now understand the way in which we see this working alongside the existing powers. Victims do not care which power is being exercised or from which statute it is derived. They do not really care who deals with their problem or who answers their telephone call at 3 am. They just want anti-social behaviour to stop. That seems like a pretty reasonable wish to me; that is what this Bill is seeking to provide. Those tasked with stopping the behaviour should be able to respond quickly and effectively, using more than one power where this is appropriate and justified. This is not least because the community protection notice can cover behaviour which does not fall within the ambit of statutory nuisance, even though there may be some overlap. These amendments could result in officers being unnecessarily risk averse, potentially not using the new power and so allowing anti-social behaviour to continue, ruining victims’ lives for longer than necessary.
The new CPN will be available to deal with a wide range of anti-social behaviour. To say “It can be used for this behaviour but not that behaviour” would simply return us to mistakes from the past. We must move on from focusing on the behaviour and instead understand the impact it is having on the victims and communities that are being damaged.
I was asked by my noble friend Lord Greaves for 10 ways CPNs could be used. I can give him three—I have three prepared already—and no doubt a certain amount of inventiveness will allow me to write to him with another seven, but at least these give an idea. They can be issued to any individual or body persistently behaving in a way that has a detrimental effect on the quality of life of people in the locality. That is the essence. For example, there is no current notice system to cover an individual who regularly allows their dog to foul a communal garden. A group regularly taking the same route home late at night while drunk, making noise and waking their neighbours: this behaviour is not covered by the statutory nuisance regime. A third example might involve a takeaway which persistently allows its customers to drop litter on the pavement outside and causes noise nuisance late at night. It could be required to put bins outside the shop and ensure that customers leave quietly after 10 pm. Current notices can only be used to deal with one particular type of behaviour. I am trying to give illustrations of the sort of issues that have considerable anti-social consequences and which can be dealt with through a CPN regime.
I have to say to my noble friend that we have acknowledged the importance of the statutory nuisance regime in guidance. We have acknowledged the wealth of experience available on the subject and made it clear that, when problems are persistent, police officers and social landlords should speak to their partners in the local authority to determine which action is most appropriate. The CPN is a simple but powerful tool, available to protect communities from persistent and unreasonable behaviour that is having a detrimental effect on people’s quality of life. It must remain so and, as such, I urge my noble friend to withdraw her amendment.
Lord Greaves
I refer to a real case, which has been dealt with by serving planning notices, particularly Section 215 tidying-up notices, which are similar to the kind of notice that we are talking about now. The problem is associated with inappropriate use of land which is causing problems to people living adjacent to it. It is the use of the land that is the problem, but notices have to be served on the owner of the land, and the owner simply keeps transferring the ownership to somebody else, or to another company and then back again. The question that I am really asking is whether the Government could look at whether a community protection notice could be served on the land in some instances so that whoever owned that land would have to deal with the problems on it. If the problem is a dog, it is not associated directly with land—but, if it is a piece of land, could that possibly be considered?
Lord Taylor of Holbeach
I would certainly wish to consider the concept that my noble friend has presented to the Committee by tabling the amendment. It is well worth noting the illustration that he has given; we need to be certain that we have protected against that sort of situation. I shall no doubt be getting in touch with him and will try to consider this matter before Report. Meanwhile, I am grateful to him for raising this issue. Transferring the interest after a notice is issued may solve a problem, but it is not a ground for appeal, as he will understand.
My noble friend also asked about the difference between nuisance and annoyance and detrimental effect and how come the definitions are different. We have taken elements from existing powers; nuisance and annoyance has worked well, as we have said, in housing law, while detrimental effect is used in current environmental powers. It is also well understood. That is why we have transferred that language to this notice.
I turn to the amendments tabled by the noble Lord, Lord Rosser. On Amendment 22NB, the provision specifically allows for a requirement to be attached to a community protection notice that includes reasonable steps to achieve specified results. This preventive limb of the new notice is integral to the process and I am surprised the noble Lord wishes to see it removed. Under this provision, authorised officers could, for example, include a requirement for a dog owner to attend dog training classes to ensure they are better able to control their dog in future. If there was any doubt as to why the provision is necessary, I hope I have clarified the issue.
Lord Rosser
In Clause 40(3)(a) there is,
“a requirement to stop doing specified things”.
In Clause 40(3)(b) there is,
“a requirement to do specified things.”
In Clause 40(3)(c) there is,
“a requirement to take reasonable steps to achieve specified results”.
I should have thought that what the Minister has just described is a requirement to do specified things and is covered by Clause 40(3)(b). What kind of things does Clause 40(3)(c) cover? Why is it, in relation to Clause 40(3)(c), a requirement to take reasonable steps to achieve specified results, whereas in Clause 40(3)(b), which is a requirement to do specified things, there is no reference to taking reasonable steps?
It is clear that, in the eyes of the Government, there is some significance in putting the requirement to take reasonable steps in Clause 40(3)(c), but not in Clause 40(3)(a) or Clause 40(3)(b). I should be grateful if the Minister could explain what that is and what the distinction is between a requirement to do specified things and a requirement to achieve specified results. I asked whether it was intended that the person or body issued with a community protection notice will be told, by the person issuing it, what will be deemed to constitute,
“reasonable steps to achieve specified results”.
Lord Faulks (Con)
Before the noble Lord answers, I wonder if I might add to his burden and suggest that the difference between paragraphs (a), (b) and (c) is really pretty obvious. In paragraphs (a) and (b), somebody has direct control over specified things that can or cannot be done, whereas in paragraph (c) we are talking about third parties, over whom the best that can be ordered is that reasonable steps are taken to achieve specified results. It is a classic example, frequently found in legislation.
Lord Rosser
I hope the noble Lord will accept that the definitions the Minister was giving seemed to come under the requirement to do specified things, not achieve specified results, which is what I had asked about.
Baroness Hamwee (LD)
My Lords, my much less elegant interpretation of these provisions is that paragraph (c) is about “how” and paragraphs (a) and (b) are about “what”. There is an absolute requirement to achieve paragraphs (a) and (b) but there can be only a reasonable requirement—and a choice of ways—as to how to to get there.
Lord Taylor of Holbeach
I would see it as being about outcomes as opposed to methodology. Noble Lords are familiar with this concept and understand the particular example.
Moving on to Amendment 22NG, while I cannot think of a specific example where it would not be necessary to include the specified time for actions to be undertaken on a notice, I am not the front-line officer dealing with anti-social behaviour on a daily basis. Those officers have told us that the additional flexibility afforded by the new powers is exactly what they want. They do not want to be constrained on a time limit. This is directional and they want to be satisfied that the direction of travel is working properly. To put a time limit on it may be counterproductive. The amendment would erode that flexibility.
The noble Lord, Lord Rosser, asked what is meant by “reasonable”. We have discussed “reasonable” before. In this case, the power will be used by council enforcement officers and police officers. These are trained professionals who make this judgment on a daily basis. What is reasonable in one situation is not reasonable in another. The judgment has to be made on a case-by-case basis. I hope that the noble Lord will accept that.
The noble Lord, Lord Harris, came up with the notion of CPNs for a string of shops promoting payday loans or for an off-licence. The conduct has to be defined as being unreasonable and a notice that imposes unreasonable requirements can be appealed. However, if an off-licence has benches outside encouraging people to congregate and engage in conduct that would be detrimental, it could be required through a CPN to remove the benches. That would be a perfectly reasonable request.
Except for the seven examples that I owe my noble friend Lord Greaves, I hope that I have given noble Lords the answers to their questions—but I appear not to have done so.
Lord Rosser
I really would like to hear the answers to my questions. I asked whether it was the intention that the person or body issued with a community protection notice would be told by the person issuing it what would be deemed to constitute,
“reasonable steps to achieve specified results”,
or will that be left in the air? Presumably, if there is an argument about the matter, it will be left for the courts to determine. Is that the case or will they be told what will be deemed to be reasonable steps to achieve specified results?
Lord Taylor of Holbeach
We should not make the methodology of serving the notice, which is what the noble Lord is referring to, specific. We discussed this when we talked about the requirement to do certain things. The steps that might have to be taken to achieve specified results may be up to the individual to judge. What is not in doubt is the need to indicate the specified result that is required. We discussed this issue when we were talking about the difference between paragraphs (a), (b) and (c).
Lord Beecham (Lab)
I follow briefly and with some trepidation in the footsteps of my noble friend Lord Harris. I draw the Minister’s attention to Clause 41(2), which states:
“Conduct on, or affecting, premises occupied for the purposes of a government department is treated for the purposes of section 40 as conduct of the Minister in charge of that department”.
Can the Minister give us some examples of conduct that would be attributed to a Minister which might invoke the community protection notice procedure—for example, the activities of Jobcentre Plus, the DWP or some other government departments? What do the Government have in mind here?
Lord Taylor of Holbeach
I suppose that this comes back to the accountability of Ministers. I am accountable to the Committee this evening in giving answers to somewhat difficult questions. I promise to write to the noble Lord with an explanation. He was very astute. I saw him leap with alacrity at a particular point and show it to a colleague on his Bench, so I knew that something might be up. I will write to the noble Lord.
Baroness Hamwee
My Lords, I should have thought that the noble Lord, Lord Beecham, would have been glad to ensure that if there were conduct on the part of a government department that might justify a CPN there would be someone there on whom it could be, not literally, pinned.
I come back to my amendments. The Minister said that victims do not care how a problem is solved or who solves it. I agree with that. In my group of amendments I am seeking to ensure that the most effective mechanism is used. That is why I keep coming back to the need to ensure that the professionals who will be left to use the existing statutory powers are confident that no confusion will be caused. If it would be helpful to undertake further discussions with probably not only the Minister’s own department but Defra, I know that there are people who will be happy to try to thrash this issue out in a practical fashion following today’s proceedings. For the moment, I beg leave to withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, my noble friend Lady Hamwee and I had a meeting with the Minister yesterday, which was extremely helpful regarding various parts of this and for which we thank him very much. One of the things we talked about was our mutual wish to speed up this Bill a little and move into a gallop. The slightly languid, if not sleepy, feeling in this Committee means that it will not happen this evening. I apologise to the Minister, as these are two amendments that I intended to amalgamate with the previous group and I forgot to do so.
Amendment 22NC is to probe the meaning of Clause 40(6), which reads:
“A person issuing a community protection notice must before doing so inform any body or individual the person thinks appropriate”.
This is very vague. Who do the Government think that that should mean, by what means should this take place and, in particular, how will the Government ensure that this happens without actually stating in the Bill a little more about who should be consulted or notified?
Amendment 22QA makes this a bit more definite in relation to the local authority. It reads:
“Where a community protection notice is issued by an authorised person who is not the relevant local authority, the person must notify the relevant local authority of the issue of the notice”.
The reason is that it is absolutely essential that the district council or unitary council, which is at the centre of the community protection notice regime, should know what is going on. It is about the role of the district council—as I call it—or the unitary council in dealing with these kinds of things. If constables are to go off and issue them on their own, or indeed if other people designated by the local authority are to do this, there is a risk of duplication of effort—and a risk of confusion for the people subject to the problems that the activities are causing, particularly if more than two or three agencies are trying to deal with it. There is also the essential co-ordinating role of the local authority.
Under Clause 44, it is the role of the relevant local authority to take any remedial action. Whoever serves the notice, the local authority ends up with that role. So if you are a person who can issue one and you are not that local authority, simply having to notify the local authority seems like common sense. It would help if it were in the Bill. I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, I would comment briefly that having looked at these amendments, Amendment 22QA seems to be a particularly reasonable and sensible way forward. If you think of the local authority as being at the centre of its place—not just part of the local council but managing the area—it seems very reasonable and sensible. This is perhaps a case, as the noble Lord, Lord Greaves, and my noble friend Lord Harris said earlier, of wanting the parts of the Bill that are useful to work. This may well assist the Government in ensuring that the clause is effective.
Lord Ahmad of Wimbledon (Con)
My Lords, Amendments 22NC and 22QA are proposed by my noble friend to change the process at the point where a community protection notice is issued. Currently, when issuing a community protection notice, an authorised person—be that a police officer, an officer of a local authority or a person that the local authority has designated, such as a social landlord—would have to inform any body or individual that the person issuing the notice thinks appropriate. Amendment 22NC seeks to remove this requirement.
Amendment 22QA, in my noble friend’s name, then seeks to impose a requirement that an authorised person who is not the local authority must inform the relevant local authority of its issuing of a notice. I recognise that it is important that a local authority is aware that community protection notices are in operation in its area but, conversely, it is also important, as I am sure noble Lords will agree, that local authorities notify the police. The reality is that police and local authorities will be working together to tackle local anti-social behaviour and therefore it is not necessary to put into the Bill the requirement to inform the local authority. The existing provision in Clause 40(6) states that the authorising officer “must … inform” any appropriate individual or body of the issue of a community protection notice, and it is difficult to imagine any case where the relevant local authority would fall outside the definition of “appropriate”. I do not think it necessary to specify that the local authority must be informed.
However, there may well be others whom it would be appropriate to inform as well. As I have suggested, the police will often have an interest. I fear that the effect of my noble friend’s amendments would be to restrict the requirement to informing the local authority only.
Our guidance for front-line professionals states clearly that, where a community protection notice is being issued, there is clear merit,
“in involving the local council, which will have many years of experience in tackling environmental issues, when deciding whether or not to serve a CPN”.
As I and my noble friend have said on previous occasions, the guidance can be amended as we move through the parliamentary process. Of course, if there is a requirement, we can set a clearer expectation on the necessity of ensuring that the local authority is fully involved.
As an aside—I speak with some experience, although perhaps not with the same number of years’ experience as my noble friend—in my 10 years in local government, I served as both the cabinet member for the environment and then as the cabinet member for policing and community engagement. In that respect, my experience—albeit on a London council—showed that the local authority, the police and other local agencies work well on the ground, and we have faith that these agencies will continue to work well as we move forward.
Amendment 22QF concerns remedial works carried out by the local authority where there has been a breach of a community protection notice. Remedial works may be carried out if a person fails to comply with the terms of a notice served on them. The local authority may carry out the remedial work without the consent of the owner or the person who had defaulted on the notice on land “open to the air”, and Amendment 22QF would prevent this. The local authority cannot simply enter premises at will; I am sure that my noble friend knows that to be true. It must seek the “necessary consent” of the defaulter and the owner of the premises if that person is not the defaulter. However, there may be circumstances where the local authority has taken all reasonable efforts to find the owner but has not been able to do so. I do not believe that communities should continue to suffer in such circumstances, and that is why it is important that the authority is able to carry out remedial works.
I hope that my noble friend is reassured by the explanations I have given of what is behind the Government’s proposals here, and that he will be minded to withdraw his amendment.
Lord Greaves
My Lords, I thank the Minister for that reply, although I was a bit peeved by the first part of his response. If I have not made it absolutely clear that the first amendment is a probing amendment in order to find out what this subsection means, then I apologise. I shall try to be clearer in future. It is quite normal in Committee to table amendments that take out subsections, not because you want to take them out but because you want the Government to explain what they mean. They are called probing amendments and that is fairly normal procedure, but I am sorry that I did not make that clear in this case. Clearly, I do not want to take out the subsection; I want a clear explanation from the Government of exactly what it means, and I shall read Hansard before I decide whether I have had a clear explanation.
The Minister said that the reason why councils will have to be notified is that they have many years of experience. That is true but it is not why they have to be notified. They have to be notified because, as I understand it, they are the most important central body as far as community protection notices are concerned. I am not suggesting that the police are not important—they clearly are very important indeed—but the council is the body that has the staff and the ability to go on to the ground and do something about these problems, and remedy them if that is required. The Minister said that the Government have faith that these agencies will continue to work well on the ground as we move forward. I have no doubt that where this is working well already on the ground it will continue to do so, and I hope that it will be brought in where it is not yet working—so long as the people are still there on the ground.
I am sorry to hammer on about this, but in many parts of the country it is precisely those council staff and the local neighbourhood policing teams, who are so vital to this operation, whose employers are wondering how long they can continue to pay them, because of the cuts that are taking place. That is just a fact. I am not making a political point. If I were on the Labour Benches I would be making a horrible political point and attacking the Government over this, but I am not doing that now; I am just stating that this is the fact that we have to live with. Many of us are fighting hard to ensure that in our own patches the mechanisms, the structure and the networks continue, but with every year that passes that gets more difficult. It is one thing to pass legislation like this that puts forward exciting new ideas and measures to deal with the problems, but if we cannot do it on the ground because there are no staff left, it is very difficult. Having moaned in that way, I beg leave to withdraw the amendment.
Lord Greaves
“(9) A community protection notice may require the control or removal from premises occupied by a body or individual of a plant of the following description—
(a) Japanese Knotweed (Fallopia japonica),(b) Himalayan Balsam (Impatiens glandulifera), or(c) a plant specified in an order made by the Secretary of State.”
Lord Greaves
My Lords, we have reached the high point of the evening: an amendment about Japanese knotweed. It is actually an amendment about weeds, alien and invasive. I have listed Japanese knotweed and Himalayan Balsam, which I think are now the two biggest nuisances of the invasive alien weeds in this country—and, indeed, from my observation, in much of Europe as well—but this is really an amendment about Japanese knotweed.
I could wax lyrical for hours about Japanese knotweed and the problems that it causes, if you want—but I am sure that you do not, so I shall not do that. I shall merely say that as a weed that has,
“a detrimental effect … on the quality of life of those in the locality”—
to quote the Bill on the subject of community protection notices—it is top of the list.
The Environment Agency has described Japanese knotweed as the most invasive species of plant in Britain. The problems are well known: on river banks, on pieces of land, invading people’s gardens, on building sites and on built sites, it is dreadful. It is an incredibly strong weed, which can grow up through concrete and split it, and cause the foundations of buildings to require attention. It can do all sorts of things, and it spreads very easily. It does not spread in the normal way, by sexual reproduction—not in this country, anyway. In this country the whole thing is apparently one huge female clone: it is all the same plant. It spreads vegetatively, and if you take a small part of the stem, the root or the leaf and just drop it, the odds are that you will have an infestation in that location before long.
Japanese knotweed causes huge problems. Local authorities attempt to deal with it on their own land—certainly my local authority does, perhaps because I nag it all the time—but it is much more difficult when the weed is on somebody else’s land. What is the law that applies to it? Because of its invasive nature, Japanese knotweed is listed in Schedule 9 and subject to Section 14 of the Wildlife and Countryside Act 1981. All that does is make it an offence to plant Japanese knotweed and cause it to grow in the wild. That is all very well if it is in the wild and growing as a weed on waysides or wherever. It does not apply to Japanese knotweed which you have not planted but which is growing on your property and you are not dealing with it. Under cross-compliance rules, if a farmer receives the single farm payment, he is required to take reasonable steps to prevent its spread. Those are the old rules and no doubt they will be rolled forward.
Lord Taylor of Holbeach
My Lords, I will be brief: I am sure the Committee would want me to be so. I can be very reassuring to my noble friend. He presents what is a very serious issue. Japanese knotweed is not the only invasive and destructive plant, as indeed he mentioned.
In reforming the anti-social behaviour powers, we have deliberately created flexible powers that can be used to stop or prevent any behaviour that meets the legal test. We have streamlined the powers, and introducing a specific use for the community protection notice would be to reinvent the behaviour-specific powers we are trying to repeal.
However, as currently drafted, the CPN can be used to require someone to control or prevent the growth of these plants, or any others capable of causing the havoc that they do. It is non-specific in terms of the nature of the plant and in the sense that it does not necessarily refer to invasive plants in the legislation. But the test is that the conduct of the individual or body is having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality, and that the conduct is unreasonable. Those are the tests. In this case, the conduct can just as easily be interpreted to mean inaction, so not taking action to remove it can come under a CPN.
I hope that I can reassure my noble friend that the amendment does not add to the powers currently available in the Bill and elsewhere, and I ask him to withdraw it.
Lord Greaves
My Lords, I am very pleased with that response. It is the most positive thing that I have heard a government Minister say about Japanese knotweed in the 10 years that I have been banging on about it in your Lordships’ House, along with other noble Lords. I am very grateful for that.
What I would really like to see when this legislation is passed, as it no doubt will be, is joint advice. I realise that the legislation will not refer to specific problems, whether Japanese knotweed, littering or anything else because the whole purpose of the CPN is to be general. But it would be very helpful if the Home Office and Defra could issue joint advice—together with CLG or anyone else—to councils and people about how to deal with this when the legislation is passed. There is a huge reluctance on behalf of many councils because they are frightened of the problem. They think that it is too expensive and that it cannot be solved. It is absolutely crucial that there is a war against Japanese knotweed throughout this country to get rid of it as far as possible.
I shall be badgering the Government to do that when this legislation is passed, but I am delighted by what the Minister said. I shall put it out, reprint it, pass it around and make him famous. In the mean time, I beg leave to withdraw the amendment.