House of Lords
Stalking
(5 years, 6 months ago)
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Baroness Royall of Blaisdon
To ask Her Majesty’s Government what steps they are taking to ensure that all police forces have the requisite training on stalking to prevent women and girls being murdered or taking their own lives.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, before I start, may I take a moment to apologise to the doorkeepers? Last week, I referred to them as doormen. Of course, they do not stand outside the doors of nightclubs—maybe they do; I hope not—but I wanted to take this first opportunity to apologise, so that they know how very grateful we are to them.
Stalking is an insidious crime, which has a significant impact on victims’ well-being. To ensure that the front-line response is as effective as possible, the College of Policing has recently published new advice for police responders and call handlers on how to respond to reports of stalking and/or harassment. Further advice to police on investigating stalking crimes will be released later this year.
Baroness Royall of Blaisdon (Lab)
My Lords, I am grateful to the noble Baroness for that Answer, and warmly welcome the new advice being given to the police by the College of Policing. However, 70% of victims do not go to the police until the 100th incident, and when they do, too often they are still not believed and no action is taken. At least 60 women have been killed by their stalkers since 2015, so I very much hope that the College of Policing’s advice will be thoroughly implemented. However, I should like to be sure that it is not just guidance but that there is much more to it. May I also ask the noble Baroness when judges will receive training on the sentencing guidelines on intimidatory offences, introduced in 2018?
Baroness Williams of Trafford
My Lords, the noble Baroness points out the very stark, very low figures for people who will go to the police. If officers do not have the training to spot the signs of harassment and deal with it, the figure for perpetrators being brought to justice will be even lower. There is a training programme for the police, Domestic Abuse Matters, which, as she said, has been developed by the College of Policing and Safelives.
I pay tribute at this point to my noble friend Lady Barran, who was chief executive of Safelives. The current evaluation shows that the programme has had a positive impact on police officers’ knowledge of coercive control and on attitudes to domestic abuse, and that a number of police forces have undertaken Domestic Abuse Matters training. In the Victims Strategy, the College of Policing committed to review the national policing curriculum and develop a set of resources to support learning in relation to victims and witnesses, for police forces to then use as a basis for any relevant locally based training. I will get back to the noble Baroness on the point about judges.
Baroness Burt of Solihull (LD)
My Lords, stalking has been described as murder in slow motion. While the number of reported incidents has increased fourfold in recent years, charge rates have halved. We do not need the Minister to tell us that the police must do better, although I welcome her comments about training, but can she tell us what plans the Home Office has properly to address how the police will be given the compulsory training and resources to help stem this tide in human misery and save lives?
Baroness Williams of Trafford
I think I outlined the training to the noble Baroness, Lady Royall, but on charge rates halving, I have acknowledged previously that the figure for referrals—and therefore for charges—has dropped. I know that the police and the CPS are working together to understand why that is. I also know that my right honourable friend the Home Secretary chairs an oversight board to understand why the figures are going the way that the noble Baroness describes.
Baroness Gale (Lab)
My Lords, as stalking is one of the most frequently experienced forms of abuse and can escalate to rape and murder—it is a crime and it destroys lives—I ask the Minister once again whether she will consider introducing as a matter of urgency a national register of serial stalkers and domestic abuse perpetrators, as recommended by Paladin. I understand that the actress Emma Watson was recently at the G7 meeting, where she raised the issue of stalking and linked it to the Istanbul convention. Does the Minister agree that if the Government were to introduce such a register, it would help them go some way towards ratifying the convention?
Baroness Williams of Trafford
On the noble Baroness’s second question, she is absolutely right: the Government were challenged, and I was challenged, by Emma Watson on Friday about the fact that we had not yet ratified the Istanbul convention. She is also right to link it to domestic abuse, because it will be the domestic abuse Bill that will enable us, through the definition, to ratify the convention.
I think I have previously been clear that a series of separate registers could fragment the system that we have. Dangerous and violent stalkers should already be captured on ViSOR and managed through MAPPA if appropriate.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, does the Minister agree that stalking can be an obsessive crime and is quite often related to mental illness? Of course, it can lead to murder. I dealt with a case recently where the accused was a foreign national. Importantly, he was convicted of the crime and eventually deported. The police need to take the issue seriously and senior officers need to supervise those on the front line who deal with these incidents. Quite often, they deal with them as domestic disputes, which of course they are not.
Baroness Williams of Trafford
The noble Lord is absolutely right to point out that stalking is, at its heart, an obsessive undertaking. Often these obsessions are linked to mental conditions and the police need to recognise what stalking looks like. We have, therefore, talked about training, which is the only way to catch perpetrators and, in many cases, to bring them to justice.
Baroness Jones of Moulsecoomb (GP)
My Lords, one option that would benefit the police when dealing with this sort of crime is for misogyny to be made a hate crime, along with racial and religious hatred, homophobia and so on. Is that something the Government are thinking about bringing forward legislation on? We obviously have a fair amount of time here and could probably deal with it quite quickly.
Baroness Williams of Trafford
The noble Baroness makes a good point. She will know that we have asked the Law Commission to look at various types of hate crime. Misogyny is among the things they could look at to see whether there is anything further we can do in legislation to enhance the types of crime we consider hate crimes.
Lord Paddick
My Lords, coercive control can sometimes be so subtle and perpetrators so manipulative that victims may not even be aware of it themselves. Does the Minister agree that compulsory sex and relationship education is an essential part of keeping young people safe from this type of offence?
Baroness Williams of Trafford
The noble Lord is right that coercive control can be so subtle that the victim of it does not realise, sometimes until many years down the line, that financial control or mental manipulation is happening to them. Sex and relationship education is to be made compulsory. Every young child needs to know what a healthy relationship looks like, as opposed to a coercive or manipulative one.
Brexit: Free Trade Agreement
(5 years, 6 months ago)
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Lord Pearson of Rannoch
To ask Her Majesty’s Government whether, instead of their proposed Brexit deal, they will offer European Union exporters a free trade agreement under the auspices of the World Trade Organisation, and European Union citizens continued reciprocal residence rights for a period to be agreed.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the best way to secure certainty for UK and EU businesses and citizens is to leave the EU in an orderly fashion with a deal. Without the withdrawal agreement, we will not benefit from the smooth and orderly exit that the implementation period delivers. The citizens’ rights agreement offers reciprocal protections for EU and UK citizens. EU citizens resident in the UK can safeguard their residency rights now by applying to the EU settlement scheme.
Lord Pearson of Rannoch (UKIP)
My Lords, I thank the Minister for his reply, which shows that the Government do not really want to leave the European Union at all. Since Brussels has broken clause 1 of Article 50 by not allowing us to regain our complete sovereignty, why do the Government still feel bound by the rest of it, instead of breaking free and making this sort of offer to the real people of Europe, who are our friends? Why do the Government want our laws to go on being proposed in secret by the unelected Commission, negotiated secretly in the unelected Committee of Permanent Representatives—COREPER —and passed behind closed doors in the Council of Ministers, with this Parliament entirely powerless throughout? Why do the Government want the British people to continue in such servitude to the corrupt octopus in Brussels?
Lord Callanan
The premise of the noble Lord’s question is wrong. The Government want to leave the EU. We are doing our best to deliver a deal that will enable us to leave the EU in a smooth and orderly fashion.
Baroness Hayter of Kentish Town (Lab)
My Lords, given the letter that all those Tory leadership hopefuls have just written, saying that they would never countenance what this House would like—a permanent customs union—and as the Prime Minister seems to concur with that view, in what way were the Government willing to compromise in the talks that they offered to the Opposition?
Lord Callanan
We took the view that both sides would have had to compromise. The noble Baroness cited Conservative leader hopefuls so I will tell her what her leader, Jeremy Corbyn, said at the launch of his European election campaign: that a commitment to leave the EU was confirmed in the Labour Party manifesto and at the party conference. We seek to explore whether that really is the position of the Labour Party.
Baroness Ludford (LD)
My Lords, this Question is a perfect illustration of the disdain that Brexiters have for expertise—as expressed at one point by a member of the Cabinet, Michael Gove, who dismissed experts—and their ignorance about how the EU and the WTO work. Even at this late stage, will the Government run a training session for Brexit supporters in both Houses, including Ministers, to remedy this deficiency in knowledge?
Lord Callanan
I have many differences with the noble Baroness but I hope she will accept that, given the experience that we both have in the European Parliament, at least one Minister here has some idea of how the EU works.
Lord Tomlinson (Lab)
It is the normal practice that Members of this House ask questions and the Minister answers the question he is given. It is not the practice that he chooses the question and answers that, even if it has no relevance to the question asked. So will he now answer the question that he was asked from the Opposition Benches?
Lord Callanan
I thank the noble Lord for his advice on answering questions. I did answer the question. I will not go into details of the talks because they are still live and are still taking place. Suffice it to say that if there is to be a deal that will deliver Brexit, and if it is true that the Labour Party wants to deliver Brexit—I know that many of its members might disagree, but that is today’s position of the leadership—let us explore how that can be done in a compromise fashion. The talks seek to explore that, and we accept that that requires compromise from both sides.
Lord Mackay of Clashfern (Con)
My Lords, I had understood that the question at the moment was on the withdrawal agreement. The European Union made it clear that future relationships would not be a matter for substantive discussion until after the withdrawal agreement was settled. Therefore, why should the negotiations to which the noble Baroness referred deal with matters connected with the future agreement, rather than seeking to achieve what we urgently need—namely, an agreed withdrawal agreement?
Lord Callanan
With the benefit of his great experience, my noble and learned friend makes an important point—that the withdrawal agreement, as negotiated, will not change. I think that even many in the Labour Party accept that it is not going to change, which makes it slightly strange that they voted against it.
Baroness Smith of Newnham (LD)
My Lords, what is Olly Robbins doing in Brussels today? Is he seeking to renegotiate, or do the Government have another plan for him?
Lord Callanan
I understand that he is exploring possible changes to the political declaration.
Lord Campbell-Savours (Lab)
If what the Minister has just said is true, what is Olly Robbins doing in Brussels today?
Lord Watts (Lab)
My Lords, are the Government prepared to compromise on the red lines that they set out, and if not, what is the point of the dialogue taking place between them and the Opposition?
Lord Callanan
To repeat the answer that I gave to the noble Lord’s noble friends Lady Hayter and Lord Tomlinson, we are prepared to compromise and we have offered what we thought were potential solutions. I understand that the Opposition Front Bench are considering them, and a dialogue is still taking place. The talks are not concluded and are still being undertaken, so let us hope that we can get an agreement and the matter can be put to bed.
Lord Howarth of Newport (Lab)
My Lords, taking the Minister back to his first Answer, what would be disorderly about leaving with a free trade agreement?
Lord Callanan
Of course there would be nothing disorderly about leaving with a free trade agreement, but we need to negotiate that agreement. It is a very detailed and complex subject. To get on to those negotiations, we need a withdrawal agreement to settle all the outstanding issues. If we do not have a withdrawal agreement, the EU has made it clear that it is not prepared to discuss any free trade arrangement until we settle all the issues.
Internet Encryption
(5 years, 6 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what assessment they have made of the deployment of the Internet Engineering Task Force’s new “DNS over HTTPS” protocol and its implications for the blocking of content by internet service providers and the Internet Watch Foundation; and what steps they intend to take in response.
Baroness Thornton (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and, in doing so, declare as an interest that, until recently, my husband was an unpaid adviser to successive Governments on matters concerning online child safety for the last 17 years.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, DCMS is working together with the National Cyber Security Centre to understand and resolve the implications of DNS over HTTPS, also referred to as DoH, for the blocking of content online. This involves liaising across government and engaging with industry at all levels, operators, internet service providers, browser providers and pan-industry organisations to understand rollout options and influence the way ahead. The rollout of DoH is a complex commercial and technical issue revolving around the global nature of the internet.
Baroness Thornton
My Lords, I thank the Minister for that Answer, and I apologise to the House for this somewhat geeky Question. This Question concerns the danger posed to existing internet safety mechanisms by an encryption protocol that, if implemented, would render useless the family filters in millions of homes and the ability to track down illegal content by organisations such as the Internet Watch Foundation. Does the Minister agree that there is a fundamental and very concerning lack of accountability when obscure technical groups, peopled largely by the employees of the big internet companies, take decisions that have major public policy implications with enormous consequences for all of us and the safety of our children? What engagement have the British Government had with the internet companies that are represented on the Internet Engineering Task Force about this matter?
Lord Ashton of Hyde
My Lords, I thank the noble Baroness for discussing this with me beforehand, which was very welcome. I agree that there may be serious consequences from DoH. The DoH protocol has been defined by the Internet Engineering Task Force. Where I do not agree with the noble Baroness is that this is not an obscure organisation; it has been the dominant internet technical standards organisation for 30-plus years and has attendants from civil society, academia and the UK Government as well as the industry. The proceedings are available online and are not restricted. It is important to know that DoH has not been rolled out yet and the picture is complex—there are pros to DoH as well as cons. We will continue to be part of these discussions; indeed, there was a meeting last week, convened by the NCSC, with DCMS and industry stakeholders present.
Lord Clement-Jones (LD)
My Lords, the noble Baroness has raised a very important issue, and it sounds from the Minister’s Answer as though the Government are somewhat behind the curve on this. When did Ministers actually get to hear about the new encrypted DoH protocol? Does it not risk blowing a very large hole in the Government’s online safety strategy set out in the White Paper?
Lord Ashton of Hyde
As I said to the noble Baroness, the Government attend the IETF. The protocol was discussed from October 2017 to October 2018, so it was during that process. As far as the online harms White Paper is concerned, the technology will potentially cause changes in enforcement by online companies, but of course it does not change the duty of care in any way. We will have to look at the alternatives to some of the most dramatic forms of enforcement, which are DNS blocking.
Lord Stevenson of Balmacara (Lab)
My Lords, if there is obscurity, it is probably in the use of the technology itself and the terminology that we have to use—DoH and the other protocols that have been referred to are complicated. At heart, there are two issues at stake, are there not? The first is that the intentions of DoH, as the Minister said, are quite helpful in terms of protecting identity, and we do not want to lose that. On the other hand, it makes it difficult, as has been said, to see how the Government can continue with their current plan. We support the Digital Economy Act approach to age-appropriate design, and we hope that that will not be affected. We also think that the soon to be legislated for—we hope—duty of care on all companies to protect users of their services will help. I note that the Minister says in his recent letter that there is a requirement on the Secretary of State to carry out a review of the impact and effectiveness of the regulatory framework included in the DEA within the next 12 to 18 months. Can he confirm that the issue of DoH will be included?
Lord Ashton of Hyde
Clearly, DoH is on the agenda at DCMS and will be included everywhere it is relevant. On the consideration of enforcement—as I said before, it may require changes to potential enforcement mechanisms—we are aware that there are other enforcement mechanisms. It is not true to say that you cannot block sites; it makes it more difficult, and you have to do it in a different way.
The Countess of Mar (CB)
My Lords, for the uninitiated, can the noble Lord tell us what DoH means —very briefly, please?
Lord Ashton of Hyde
It is not possible to do so very briefly. It means that, when you send a request to a server and you have to work out which server you are going to by finding out the IP address, the message is encrypted so that the intervening servers are not able to look at what is in the message. It encrypts the message that is sent to the servers. What that means is that, whereas previously every server along the route could see what was in the message, now only the browser will have the ability to look at it, and that will put more power in the hands of the browsers.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, if we are very quick and we actually ask questions, we might get two in. We will start with the Labour Benches.
Lord West of Spithead
My Lords, I thought I understood this subject until the Minister explained it a minute ago. This is a very serious issue. I was unclear from his answer: is this going to be addressed in the White Paper? Will the new officer who is being appointed have the ability to look at this issue when the White Paper comes out?
Lord Ashton of Hyde
It is not something that the White Paper per se can look at, because it is not within the purview of the Government. The protocol is designed by the IETF, which is not a government body; it is a standards body, so to that extent it is not possible. Obviously, however, when it comes to regulating and the powers that the regulator can use, the White Paper is consulting precisely on those matters, which include DNS blocking, so it can be considered in the consultation.
Emergency Services Network
(5 years, 6 months ago)
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Lord Hogan-Howe
To ask Her Majesty’s Government what assessment they have made of the report by the National Audit Office Progress delivering the Emergency Services Network, published on 10 May, in particular its finding that the new emergency services communications network may go over budget by at least £3.1 billion.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the emergency services network aims to deliver an ambitious world-leading digital communications network for the emergency services by 2022, resulting in savings of £200 million a year. When fully implemented, its mobile technology and infrastructure will transform the emergency response of police officers, firefighters and ambulance crews. This will result in faster and better treatment for victims.
Lord Hogan-Howe (CB)
My Lords, I thank the Minister for that Answer. The Audit Commission has provided an excoriating judgment on this Home Office-run project. Not only has the cost risen by 49% but the project should have finished in 2019, while it is now hoped that it will finish in 2022. The Audit Commission has no confidence that this project will be delivered, given that a technical solution is not defined, and the police have no confidence. So will the Government guarantee that the extra funds needed for this project—which will be significant—will not be taken from the police, fire or ambulance budgets?
Baroness Williams of Trafford
The noble Lord is absolutely right to point out what the NAO report says. I am not going to sugar-coat the cost and time overruns, but we can take some comfort from the fact that a new team is in place, and the additional costs should ultimately be recouped. But I take the point that a reset is needed, that the project needs to run to time and cost, and that that needs to be done as a priority.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, will the noble Baroness tell the House who is responsible for this shambles?
Baroness Williams of Trafford
My Lords, there are a number of factors involved in what is not a satisfactory situation. As I said to the noble Lord, Lord Hogan-Howe, I am not going to pretend that it is a satisfactory situation. Some of the technological solutions and the infrastructure have run mainly according to plan, but there is now the testing phase, which is going to be done incrementally. That is probably the right way to do it, so that if any part of it is not running as planned, it can be changed. But there are a multitude of problems, for which a multitude of solutions are needed.
Lord Paddick (LD)
My Lords, Motorola owns the current Airwave communications system used by the emergency services, and it is also a main supplier for the new system. It is being paid £1.4 billion to keep the existing system going beyond its contracted date, and stands to benefit even more if the project is delayed further. How did the Home Office get itself into a contract that rewards one of the main suppliers for delays?
Baroness Williams of Trafford
What the noble Lord points out is correct. As I said to the noble Lord, currently a change notice is being prepared for signing to reset the situation. I think that Motorola acquired the contract after it had the Airwave contract, rather than at the point when the contract was signed. But a change notice is being issued to try to resolve the situation.
Lord Marlesford (Con)
My Lords, does my noble friend recognise that the Government’s record on procuring high-tech projects is lamentable? Will she consider consulting Mr Ken Livingstone, under whom the very successful congestion charging system was introduced into London without a hitch? He might be able to point her in the right direction of good management.
Baroness Williams of Trafford
My Lords, I am not sure that even the Labour Party would consult Ken Livingstone if it wanted any advice. The congestion charge was done under Ken Livingstone, and I am sure that there were many good people behind it. On a positive note, this infrastructure project is sorely needed, both in terms of its reach and the potential number of victims it can get to. As a result of the upgrade to 4G and 5G it will have reach underground and from surface to air—therefore, there is no going back on it. But, as I said, we need this reset and I am glad that the change notice is being issued.
Lord Harris of Haringey (Lab)
My Lords, will the £3 billion overspend come from existing policing budgets or is it being found centrally? When I looked at this three years ago, I could not find a single serving emergency service officer at senior or junior level who had any confidence in this system. Has that changed?
Baroness Williams of Trafford
My Lords, the team that will be responsible for delivering it has changed, and I know that the Permanent Secretary is taking personal responsibility for its delivery as well. The noble Lord is absolutely right to point out the £3 billion, which is a very large sum; it is hoped that the savings that are realised will go towards mitigating that loss.
Draft Domestic Abuse Bill
(5 years, 6 months ago)
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Baroness Evans of Bowes Park
That, notwithstanding the Resolution of this House of 6 March, it be an instruction to the Joint Committee on the Draft Domestic Abuse Bill that it should report on the draft Bill by 14 June.
Domestic Abuse
(5 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, with the leave of the House, I shall repeat a Statement on domestic abuse made yesterday by the Secretary of State for Housing, Communities and Local Government. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement to the House today on a consultation on a new, sustainable approach to delivering support to victims of domestic abuse and their children in accommodation-based services across England.
Domestic abuse is a devastating crime experienced by more than 2 million adults a year, with women twice as likely to be victims. This is completely unacceptable, and we have much more to do if we are to reach a point where no family lives with the threat of domestic abuse.
Domestic abuse can take many forms and affects the young and old, male and female. But whoever the victim, those fleeing abuse must have somewhere safe to go. Just last year, we announced £22 million to provide more than 2,220 new beds in refuges and other safe accommodation, supporting more than 25,000 survivors with a safe space to rebuild their lives, but I know that more must be done to ensure a consistent approach across the country to ensure that survivors have a safer future.
At the 2017 general election, the Prime Minister made a manifesto commitment to review funding for refuges. The Ending Violence Against Women and Girls strategy for 2016-20 set out our ambition to provide support for refuges and other accommodation-based services, helping local areas ensure that no victim is turned away from the support they require at the time of need. We also committed to reviewing the locally led approach to commissioning of domestic abuse services.
To meet these commitments, in January 2018 we began a full review of the funding and commissioning of domestic abuse services in England. We have worked closely with sector partners, drawing on their data, expertise and knowledge. This review complements wider government work on tackling this devastating crime and supporting victims, including our new domestic abuse Bill.
Through the course of the review, we have engaged with specialist domestic abuse service providers and their representative bodies, local authorities, police and crime commissioners and other organisations which support victims to fully understand the challenges in commissioning and delivering these vital services and the positive features of the current system. We are grateful for their engagement and extensive input into our work.
We know that there are dedicated professionals delivering support to victims and their children in accommodation-based services across England. This support helps victims move from danger and abuse to safety and independence, and their children to regain their childhoods, and includes the vital work of service managers and support staff, counsellors, outreach workers and play therapists. But we also know that we need to do more to ensure that all victims and their children can access this support at the right time, underpinned by a sustainable approach to providing it.
We understand that victims and their children will live in a variety of different forms of safe accommodation and will need support to stay safe and rebuild their lives in all of them. This includes outreach support to remain safe in properties with enhanced security measures, in emergency or temporary accommodation, in dispersed accommodation and in refuges.
While refuge plays a critical role in supporting those victims at high risk of serious harm, we have deliberately kept our definition of “accommodation-based” wide to include the full range of safe accommodation in which victims and their children may require support. This will help local areas meet the support needs of diverse groups of victims and their children and those at lower and medium risk to prevent their needs escalating.
Having reviewed the current system and listened to the views of expert stakeholders, I am today proposing new, local authority-led arrangements for delivering support to victims of domestic abuse and their children in accommodation-based services in England.
Our proposals would place a new statutory duty on upper-tier local authorities—county councils, metropolitan and unitary authorities and, in the case of London, the Greater London Authority—to convene a local partnership board for domestic abuse accommodation support services. The local partnership board should include representation from police and crime commissioners, health bodies, children’s services and housing providers, along with specialist domestic abuse service providers. The board would be required to assess need for domestic abuse services, develop domestic abuse strategies, commission services to meet the support needs of victims and their children and report progress to MHCLG.
In two-tier areas, lower-tier local authorities—city, district and borough councils and, in this instance, London boroughs—will have a significant role to play in contributing to needs assessments, strategy development, service commissioning and reporting on progress. Authorities in those areas would be subject to a statutory duty to co-operate with the local partnership board.
To support local authorities and local partnership boards to meet these new requirements, I am proposing that we should produce new statutory guidance, making our expectations clear. This new approach will be backed by funding from the Government to ensure that services are put on a sustainable, long-term footing. This will be determined through the forthcoming spending review and informed by the consultation.
I want to safeguard provision of support, clarify expectations of governance and accountability, ensure that needs assessments are undertaken, and enhance our understanding of service provision across England through monitoring and reporting. I also want to ensure that the diverse needs of all victims and their children are met, including those with protected characteristics.
This is part of a wider government drive to tackle domestic abuse and end this pernicious crime for good. Our domestic abuse Bill, published in January this year, is the most comprehensive package ever to tackle domestic abuse. We have also brought in a new offence to capture coercive and controlling behaviour, and new domestic abuse protection orders will allow police and courts to intervene earlier.
It is our duty to ensure that victims and survivors can receive help by providing the support they need to transform their lives and move to safety and independence. Through this consultation, I want to hear views on our proposals from victims and survivors, service providers, local authorities, housing providers and other public agencies, as well as professionals who support victims and children every day.
I believe that my announcement today will provide much-needed help to ensure that more victims and their families better overcome their experiences and move on to live full and independent lives. The consultation will run from today until 2 August 2019. A copy of the consultation document will be placed in the House Library”.
My Lords, that concludes the Statement.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I draw the House’s attention to my relevant registered interest as a vice-president of the Local Government Association. I thank the Minister for repeating the Statement delivered yesterday in the other place by the Member for Old Bexley and Sidcup.
I welcome the announcement. Many people deserve credit for the Government taking this step, but I think that the survivors of domestic abuse, who have campaigned for this and shown real courage and strength, are to be congratulated on the progress made to deal with this disgusting and appalling crime. While men are sometimes the victims, most victims are women, often suffering years of sustained, horrific abuse.
There are several questions still to be answered by the Government to ensure that this announcement delivers what it is intended to. Funding will be a huge issue. Without adequate funding, this policy will fail. At this stage, what is the Minister’s estimate of the likely cost of the new legal duty, and will the Government provide these funds? I ask this in the context of the £8 billion funding gap for local authorities in England by 2025.
Why is this announcement wholly focused on crisis-point intervention? What about early intervention? I welcome the idea of local partnership boards. Getting all the agencies together to deal with the issue across the broad spectrum of services and interventions is very welcome.
However, I was less impressed with the reply to my Parliamentary Question from the Minister’s noble friend, the noble Baroness, Lady Blackwood of North Oxford. I tabled a Question on 11 April and received a Written Answer on 29 April. It was about GPs charging domestic abuse survivors outrageous sums of money to write letters confirming that they are victims of domestic abuse. Clearly, no progress has been made on getting these charges banned. I will keep raising the issue until they are banned, because there is a real risk that we cannot help victims here if we do not get this right.
The Statement says:
“I also want to ensure that the diverse needs of all victims and their children are met”,
and that,
“I know that more must be done to ensure a consistent approach across the country to ensure that survivors have a safer future”.
Victims of domestic abuse are now in a postcode lottery. They can be charged for these letters in one area and not in another. That is not good enough. Will the Minister confirm that the guidance that is to be issued will make it clear that such charges are unacceptable until we can bring forward a Bill to ensure that they are abandoned entirely? We also need a greater focus on social rather than affordable housing and further support for refuges, a fifth of which have closed since 2010. Can the Minister also confirm that police officers dealing with domestic abuse will form part of the partnership board? They can bring valuable experience of helping to deal with the issues faced by victims seeking to get to a place of safety.
In conclusion, I welcome the announcement, but we need to see much more in terms of funding, policy change and legislation from the Government if we are to tackle this sickening crime—one that is committed by the very person who should be supporting and protecting you. As the Prime Minister said:
“Whoever you are, wherever you live and whatever the abuse you face, you will have access to the services you need to be safe”.
Baroness Burt of Solihull (LD)
My Lords, I add my welcome to this Statement and declare my interest as a patron of a refuge in Birmingham. Local authorities will now have a legal duty to provide secure homes for the victims of domestic abuse. It is absolutely right that the Government are taking this step to end the postcode lottery of the wide disparity in provision depending on where a victim lives.
The Government are anticipating that local authorities will require an extra £90 million to buy the beds and space needed. This is to cover BAME, LGBT+ and disabled people, women, children and men. Does the Minister believe that this is enough when 60% of women are currently being turned away from refuges—this, as the noble Lord, Lord Kennedy, mentioned, in a country where local authorities will have seen their budgets shrink by £8 billion by 2025? Does the Minister anticipate that other budgets for non-statutory projects will be raided to pay for this support or can he confirm that this money will be additional and ring-fenced?
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord and the noble Baroness for their comments. I have to say that it seemed a little as though there has been a desperate search to find some bad news. I would say that this is extremely good news and it is worth putting on the record that this is the first time that we have ever looked at having a statutory duty on such an important area as well as the domestic abuse Bill. Yes, there are some issues, so let me try to deal with those which have been raised.
First, of course we need proper funding but it is inappropriate to come up with a precise figure at this stage. The £90 million per annum referred to by the noble Baroness was mentioned by the Secretary of State, but we need to look at the consultation before we can come up with a hard and fast figure, which obviously will be informed by the spending review. I think that it would be unwise to come up with a definitive figure at this stage, but this certainly needs to be properly resourced, and it is on that basis that we are seeking to end the postcode lottery by having appropriate provision in every area of the country. That will ensure that we will not have cover for domestic abuse in just one particular area. The funding needs to take care of specialist services. Mention was made of LGBT, Roma and Travellers, and of course it is appropriate that we have cover for the BAME community. It is worth noting that Imkaan, the specialist provider in the area, rightly welcomes what we are doing.
The detailed consultation will look at how we can ensure that we make properly funded provision across the country on a consistent basis. The noble Lord, Lord Kennedy, referred to the importance of early intervention. Certainly, prevention is better than cure and we need to look at this. Again, that is what the system is designed to ensure. Partnership working through local partnership boards will be key to this. The noble Lord also asked if this would involve police officers. Certainly it will; indeed, they are central to it, along with health professionals. Through the involvement of police and crime commissioners, specialist agencies and professionals, we can ensure that we go forward with the appropriate cover for what is a very serious issue, given that there are 2 million victims every year. While they are twice as likely to be women, obviously it means that a significant number of men are victims as well. All of this needs to be taken care of and that is why we are carrying out the consultation until early August.
Baroness Butler-Sloss (CB)
My Lords, I chair a commission on forced marriage. Will the Minister keep in mind that victims of forced marriage are often victims of domestic abuse? Many are extremely young and sometimes need rather better accommodation than the refuges provided—when they are provided—for victims of domestic abuse. They are also victims of domestic abuse, but in forced marriage.
Lord Bourne of Aberystwyth
The noble and learned Baroness is absolutely right to make that cautionary point about forced marriage. These will often be members of BAME communities, so we hope that will be catered for additionally, but she is right about the importance of ensuring there is appropriate provision here. Again, this perhaps relates to the broad definition of domestic abuse that will be in the Bill, which will include coercive and controlling behaviour.
Lord Pickles (Con)
My Lords, does my noble friend the Minister accept that one criterion for the success of these new measures is that it is the aggressor—the one committing the domestic abuse—who should be excluded from accommodation? Early intervention means that people subject to domestic abuse have a right to stay in their house and to protection. Will the Minister outline this change and ensure that early intervention becomes the norm?
Lord Bourne of Aberystwyth
My Lords, I thank my noble friend for that point. I very much agree that we must ensure that the aggressor—the controller, the person perpetrating the domestic abuse—is appropriately excluded from the home if that is what the domestic abuse victim wants, as it often is. We have sought through guidance to take care of that issue in advance of this Statement. It will often be appropriate for the domestic abuse victim to stay in the home. It is not always appropriate for them to go to a refuge; that is often not what they want.
Baroness Lister of Burtersett (Lab)
My Lords, I welcome this Statement, which is good news, and the Prime Minister’s pledge—already cited by my noble friend—that:
“Whoever you are, wherever you live and whatever the abuse you face, you will have access to the services you need to be safe”.
Can the Minister give an assurance that this means that no domestic abuse survivor will be denied help because of the rule about making no recourse to public funds, which is of such concern to organisations in the sector? The implication of the consultation document is that they will still be denied access to the services they need, in contravention of the Istanbul convention—which, as we heard earlier, we are finally going to ratify.
Lord Bourne of Aberystwyth
My Lords, I first thank the noble Baroness. I know she has done a tremendous amount of work in this area; indeed, we have worked together on some aspects of domestic abuse coverage and on ensuring that it is dealt with. I agree with her that the important point about this consultation on the action we propose to take is that any victim of domestic abuse—this will often include children, who, of course, are victims too—will be covered by this. This is the essence of what we seek to do, so I give her that assurance and encourage professionals and others to look at all the cases—there are many complex cases that will need taking care of in the statutory provisions—so that when we look at the consultation over the summer we will know that every area has been covered.
Baroness Hussein-Ece (LD)
My Lords, I also welcome the Statement, the pledge from the Prime Minister and all the work that has gone into the consultation on the domestic abuse Bill. It is an important step forward. I have dealt with domestic violence cases over many years with women from many different communities. Recently I was asked to help a young woman in Islington, where I live, who was facing serious threats of violence from her ex-partner. She was forced to flee with two small children. Three months later, she is still waiting for permanent accommodation, her children have had to go from school to school and she has had to go from house to house, because there was a lack of refuge beds when she had to flee her home. As the Minister will appreciate, this is very distressing. I was also in touch with the police safeguarding officer dealing with her case, and it was apparent to me that the police could not do as much as they should about this man—who is scary and very dangerous—because they simply did not have the resources. I spoke to the safeguarding officer a number of times, asking why someone who was out on bail and restricted from going to the family home or the parents’ home was routinely doing that, and they could not do anything about it.
Local authorities have an important role, but we must ensure that the safeguarding officers and the police have the resources to ensure that their role in upholding this exclusion is in place as well. Without the police working with the local authority and other agencies, people will, sadly, be under threat and will not get the safeguarding they need.
Lord Bourne of Aberystwyth
The noble Baroness makes an important point. In seeking to deal with it, I congratulate all those victims of domestic violence who step forward to help others. There are many in refuges up and down the country. It is important to the victims of domestic abuse to have those examples of people who have come through it. I make that point at the outset.
The noble Baroness is right that there are often safeguarding issues, which is why we are particularly keen to have this partnership approach whereby police and crime commissioners and police forces are represented as well as emergency services and health services so that we can look at this in the round. She is right that this is not just a question of protecting the victim and children, although that is vital, but of dealing with the perpetrator. It is no good dealing with one and not the other, particularly when we know where the person is. That should be a high priority.
Baroness Donaghy (Lab)
My Lords, I very much welcome the Statement and the commitment of the Prime Minister and the Minister to this subject. Is there any intention to have national oversight on this? One complication of setting up refuges, possibly on local authority-based areas, is that the person escaping domestic violence sometimes wants to go a lot further than the boundary of that local authority to ensure their safety and that of their family. There is a lot of cross-border activity, which also possibly reflects on the commitment of a particular local authority when the person concerned has moved away to another authority for refuge. Some kind of oversight mechanism would be important to take account of the cross-border activity, if I may call it that.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness for her kind comments. She is, as always, on the money. Paragraphs 70 to 72 of the consultation are headed “National Oversight” and make provision for a ministerial-led steering group to evaluate progress and understand how delivery of support to victims and their children is proceeding. We very much agree with that. National oversight is important if we seek to do away with the postcode lottery and ensure that we have a national system.
Lord Paddick (LD)
My Lords, while what the Minister said is welcome, will he confirm that this will not just be about accommodation? Refuges used to provide counselling and other forms of support to victims but, because of central government cuts, many local authorities now provide the bare minimum of accommodation only, if that—often contracted out to the private sector. Will the Government fund restoration of these vital additional services?
Lord Bourne of Aberystwyth
My Lords, the noble Lord will have heard me say that it is indeed across the piece. Accommodation-based services are obviously central, essential and probably more costly than much of the service that is needed. But additionally we need to do other things, as we do now. There are helplines and training, and there is care for particular kinds of victims, such as those who are deaf or disabled. We need to do all that. The noble Lord is right that this is not just about accommodation-based services. He will be reassured by the consultation—which is very detailed, involving a survey and lots of questions—that we are seeking to take care of those essential elements that he mentioned as well.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too welcome this announcement. I remind the House that I sit as a magistrate: I am the domestic abuse lead at Westminster Magistrates’ Court and I regularly deal with these matters.
As the noble Baroness, Lady Burt, said, 60% of referrals to refuges were turned away. On my figures, that adds up to 21,000 in 2018 or 2017. My question to the Minister is about monitoring how effectively these refuges are being used. We have heard about national oversight: will that include people being turned away, the reasons they are turned away and whether categories of people who are inappropriate to go into particular refuges are also monitored? As the Minister will be aware, a wide range of people who are victims of domestic abuse need to be found accommodation appropriate to their needs.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord for what he does in an important area of activity and an important area geographically. He is right that we need continuing oversight to make sure that we continue to deliver. It is anticipated that the local partnership boards, which will be responsible for delivering the statutory duty locally, will make annual reports and be held to account. As one would expect, accountability is a key part of the consultation. It runs through the consultation document that accountability is extremely important. To do this effectively we must ensure that it is working not only locally but nationally. Another key feature, without going through it in detail, is the need to work across local authority borders. Consideration will be given to the devolved areas—this issue is essentially devolved in Scotland and Wales—to make sure that we are joined up at the borders. However, effectively, there is no border, so we need to make sure that we have effective provision in those areas as well,
Baroness Lister of Burtersett
My Lords, perhaps I may have another go. The noble Baroness, Lady Burt, asked about ring-fencing and I do not think the Minister answered. Yesterday the Secretary of State said:
“I remain open-minded about how we look at this as the consultation develops”.—[Official Report, Commons, 13/5/19; col. 41.]
From my quick read of the consultation document, I cannot see any question about ring-fencing. If I am right, can the Minister assure us that the Government will consult on whether this money should be ring-fenced? I do not expect an answer now. However, if the money is not ring-fenced, hard-pressed authorities will inevitably be tempted to use the money in other underresourced areas.
Lord Bourne of Aberystwyth
The noble Baroness is right that the Secretary of State, in answering questions in the other place, indicated that he is open-minded on this issue. Obviously, we will seek to understand what people want. From memory, I think question 29 in the consultation would perhaps allow something on that but the noble Baroness is probably right that there is nothing specific on this issue and it will be a matter for the spending review. It is an important consideration but I come back to the fact that there is a statutory duty and, to deliver it, the money will have to be spent. However, we are open-minded and we have certainly not ruled it out.
Courts and Tribunals (Online Procedure) Bill [HL]
(5 years, 6 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this Bill is a further step in delivering legislation to underpin our ambitious court reform programme. Most of these measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. Since then, the Courts and Tribunals (Judiciary and Functions of Staff) Act has achieved Royal Assent, representing the first legislative step towards delivering our aims. This Bill follows on from that, continuing our legislative programme. We will bring forward further courts legislation as parliamentary time allows.
In our manifesto, the Government committed to modernising our courts and tribunals so that they are fit for the 21st century. Following that commitment, we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means.
Clearly, the modernisation of the courts system must have ordinary court users at its heart. People need new digital services to be accessible, understandable and easy to use. They need to have confidence that the justice system of the future will deliver justice as fairly as it has in the past, although with greater efficiency. This means that, for online proceedings in particular, our court rules across the civil, family and tribunal jurisdictions must be designed with the aim of making our services accessible and straightforward for the everyday user.
This vision formed part of Lord Justice Briggs’s Civil Courts Structural Review published in 2016. The review supported the concept of an online process governed by simplified rules and overseen by a new rules committee. This Bill will allow that to happen. It creates an Online Procedure Rule Committee which will be responsible for making new court and tribunal rules to enable further innovation and to support people to access our online services with ease.
Digitisation of the court process is now a well-established feature of the civil justice landscape. For example, the Online Civil Money Claims service that went live in March 2018 offers people the opportunity to resolve financial disputes online and has attracted in excess of 63,000 users, with an 87% satisfaction rating. It is these existing online services, which already form part of our modernisation programme, that we expect to be the initial focus of the new committee.
All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system. That is why we are putting in place a comprehensive “assisted digital” programme of support that will include telephone and face-to-face help for court users. These safeguards apply equally to future online provision under the new committee. Our online services offer a straightforward and efficient alternative to traditional paper routes, but we recognise that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them.
I turn now to the measures in the Bill. It will establish an Online Procedure Rule Committee to make procedural rules. The committee will have a particular focus both in its membership and its purpose on creating rules to support services designed around the people who use them. To ensure that the new rules achieve the desired effect, the Bill makes it explicit that they will be accessible, fair and simply expressed to assist the efficient resolution of disputes.
The new rule committee will have five members, be chaired by a member of the judiciary and will include laypersons and IT experts. This combined expertise will ensure that our online services continue to maintain our renowned standards of fairness and justice, while also offering a straightforward, accessible and proportionate experience to those who use the courts system.
The Bill also sets out the procedure for appointing members to the committee and for altering its composition, with the agreement of the Secretary of State, the Lord Chief Justice and the Senior President of Tribunals. This measure will ensure that the committee retains flexibility to respond to emerging technologies and user needs.
The Bill will provide a power to specify in regulations which proceedings should be subject to the online procedure. This means that any proceedings likely to benefit from an online procedure can be brought under the remit of the new rule committee. Before we extend new proceedings online, however, HMCTS will conduct appropriate piloting of online services to ensure that they are fit for purpose. We expect the committee to start by focusing on the online services that already form part of our modernisation programme.
The Bill also provides that the new online committee will operate with the same powers as apply to existing rule committees. For example, the new committee will be expected to consult appropriate persons during its rule-making process. It also provides the Lord Chancellor with the power to issue the online rule committee written notice that the rules should achieve a specified purpose. This is a standard power that already applies to existing rule committees. The Bill provides to the Lord Chancellor the power to make amendments to legislation introduced prior to the introduction of this Bill to facilitate the making of online procedure rules. It is anticipated that that will be used to make minor revisions to the legislation in order, for example, to regularise and modernise terminology to match that in new rules. Before making such regulations, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals. Again, this is a similar power to that provided in the legislation that establishes the current rules committees.
In summary, the Bill, in combination with our wider package of reforms, will ensure that our courts and tribunals system remains fit for the 21st century and for the digital age. It will help to ensure that the judges and staff of our courts and tribunals are able to respond to the changing demands of the justice system, and ultimately it will deliver a more flexible framework, supporting better services for court users. The Bill reinforces our enduring commitment to delivering a reformed courts and tribunals system, and I commend it to the House.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I remind the House that I sit as a magistrate in London; I sit in the adult, youth and family jurisdictions. I welcome the underlying aim of the reform agenda and its aim to improve the efficiency of the justice system, while ensuring equal access and fair process within our courts.
First, I will talk in some detail about the family jurisdiction. My first concern is that the Online Procedure Rules Committee, the OPRC, should not require certain proceedings to be initiated electronically. The Government are too optimistic when they look at the figures for members of the public who are digitally included. The Government’s figures that I have seen quoted are that 82% of the population are comfortable using the internet. However, if one looks further, one sees that only 56% of the population use the internet for sensitive issues such as banking or shopping. Older people and people with disabilities and vulnerabilities are more likely to be digitally excluded. The people I see in court are very often disadvantaged in some way. It should be clearly stated in the Bill that parties will be able to engage in proceedings using paper if they so choose.
I turn to particular aspects of the Bill. Section 1(6) allows the OPRC to set out the circumstances in which proceedings should be transferred to a full hearing. I am concerned that there should be no restriction on judicial discretion to respond to specific circumstances and order that a court hearing is required.
On designation, Section 2(1)(b) allows the OPRC to designate that any family proceeding can be dealt with online. I understand that the aim of the legislation is to be permissive. Nevertheless, it will be the case that the vast majority of family cases will not be appropriate for an online hearing. The president of the Family Division has said that,
“for contested cases involving the giving of oral evidence, multi-party cases, cases concerning Litigants in person, and/or cases concerning children”,
a face-to-face hearing would normally be required. I believe that that, too, should be reflected in the Bill.
Section 4 deals with the membership of the OPRC. At present there is no requirement for any representative member of the committee at all, let alone from the family jurisdiction—no requirement for either a judge or a magistrate. Maybe this should be looked at—although I noted what the Minister said about being able to consult and change the membership as different issues are raised. Nevertheless, the lay magistracy is the largest judicial cohort in the country and it is currently represented on the Criminal Procedure Rule Committee and the Family Procedure Rule Committee.
I will make some more general points about the road that we are travelling down with regard to the reform agenda and the attempts to digitise the courts process. Last week I was reading an article in the freesheet City A.M., which is a business paper. There was an article by a journalist, who is also an economist, called Paul Ormerod. He was writing about the pitfalls of the constant push to introduce new technologies. The example he used in his article was of poor technologies—“so-so technologies”, he called them—being introduced. They can have the effect of automating customer service, be it in banking or supermarkets, and putting more obligations on the receivers of those services—the customers.
In our banks and supermarkets, we have seen a big reduction in jobs, but we have not seen a noticeable reduction in costs. As far as I am concerned, the service I receive as a customer in my bank or supermarket is not as good as it was. Of course, there are parallels with this in the courts service. As the Minister said, quite a few systems have already been introduced over a number of years, and I think it is fair to point out to noble Lords where the systems have been falling short of expectations.
The first example is magistrates’ courts, which use digital technology extensively at the moment. A survey of HMCTS staff who work in magistrates’ courts found that 85% of respondents said that this was having a negative impact on the timeliness of their work. Perhaps more worryingly, 81% said that it was interfering with their ability to give proper legal advice and ensure that those who attend court had a fair hearing. That is of concern.
The second example is applying for a divorce online. The regional divorce centre at Bury St Edmunds had unprecedented delays last year. Freedom of information figures showed a 9% increase in the time taken to issue a decree absolute and a 17% increase in the time taken to issue a decree nisi. Those were the figures for 2017-18.
I am aware that this is a difficult thing to do. In my own working life I have introduced computing systems; it is not straightforward and it requires persistence. But there also needs to be honesty about whether we will actually deliver a better service for people using these technologies, and whether we will have procedures that will review the services and will be frank about the benefits to the people supplying them and receiving them. Staff need to be supported as these technologies are introduced. Ultimately, there is really only one consideration, which trumps all others: are we delivering improved access to justice? One role of this committee should be to find a way of measuring whether access to justice is being improved.
Lord Beith (LD)
My Lords, like the noble Lord, Lord Ponsonby, I very much welcome the Bill. He has brought to the attention of Ministers some important considerations about what it should contain and how it can be implemented. It is of course one of the delayed instalments of the Prisons and Courts Bill which fell because of the 2017 general election—one of the many things which fell because of that election. When the Minister used the phrase “as parliamentary time allows”, I thought, “Good heavens, if parliamentary time does not allow it now, when will it?”. I commend the department on leaping in to the gap with a Bill; surely the Government can slip a few others in while we have so little in our legislative programme because of Brexit.
It is a very welcome Bill and I am encouraged in saying that by the large number of people who have used the existing opportunities for online access to justice. Extraordinarily high levels of user satisfaction are recorded, certainly in the Parliamentary Answer given on 30 April in the other place, which talked about a user satisfaction rate of 87% for services dealing with civil money claims, and rates of 92% and 93% in some of the other categories. That is encouraging, despite the difficulties that the noble Lord, Lord Ponsonby, referred to.
The users of online facilities will include a lot of private individuals worried about the cost and difficulty of oral proceedings, and by a great many small businesses, which will want to take advantage, particularly in relation to money claims. They and their organisation, the FSB, are very concerned that the procedure should be developed with a proper eye to the needs of small business and that they should be fully involved in developing it.
Looking at some of the things which we need to get right in the Bill, under Clause 1(b), the Online Procedure Rules can require relevant kinds of proceedings to be conducted electronically. Does that mean that in some areas there would be no choice—even if both parties want an oral hearing? That may depend on what regulations are introduced under Clause 3, and to what extent they limit the impact of Clause 1. At this stage, we do not really know, so there is a degree of uncertainty. The Bill could be implemented in a way which gives little or no choice at all.
Alongside that is the risk of imbalance. What if one party is prepared to use online processes but the other party does not wish to? Neither the Bill nor the Explanatory Notes have convinced me that we have got this sorted out or got it right. The party who does not want to use online claims may be someone who has difficulty in managing them, or has had adverse experiences—as most of us have had trying to book a flight or accommodation, when the site has simply imploded on us or refused to let us go any further or go back and change what we got wrong. I make no claims to be an expert in these procedures—sometimes they are very helpful—but there is a variety of perfectly legitimate reasons why someone might not wish to use them, and who might be confronted by another party who is very keen to use them. In those circumstances, it is important to know what support can be made available.
The Government have done some work on this in the pilots that have been taking place. I would like to have confidence that something like that is going to be available around the country once these procedures are developed. However, I looked at the Explanatory Notes to try to get a better understanding of the circumstances in which there might be a lack of choice. Paragraph 15 gives an example that,
“might apply where a party might not have access to the requisite IT, so creating a parallel procedure which may still be subject to those features of the online procedure that are readily available to the parties”.
That is the course of action provided for. I find it somewhat mystifying. Similarly, paragraph 17 talks about providing for,
“circumstances in which such proceedings may nonetheless remain subject to the Online Procedure Rules, so enabling the rules to provide for alternative procedures under clause 1(7)”.
Can the Minister can clarify what will happen if both parties are unwilling to use the procedure, or if one party but not the other is unwilling or ill-equipped to use the procedure?
I will raise a couple of wider points. Clause 5 allows the Online Procedure Rule Committee to provide for existing non-online procedural rules to apply, even if they would not normally be applicable to that kind of proceeding. This might, in theory, allow the anonymity rules from family procedure to be imported into other types of case, which cannot be the intention. What is this for? Why has this provision been included?
Clause 1 to 3 together give a very wide power to preclude oral proceedings altogether, in all but a few types of case, if the powers were used in that way. That could conflict with the ECHR and common-law rights to a fair and public hearing, and would somewhat undermine the statement of compliance on the front page of the Bill—which the Minister has vouched for.
There are some areas where we need to look in more detail at whether the Bill is appropriately worded, but its intentions are right. I hope that I am not being unwise in having some confidence that a lot of people could benefit if the Government get this right.
Lord Judge (CB)
My Lords, I too welcome proposals which will improve the administration of justice by using digital or modern technology. That said, I share the reservations that have already been expressed by the noble Lords, Lord Ponsonby and Lord Beith. I was going to say more on that subject, but this is Second Reading and I propose to be brief, so perhaps I may respectfully adopt what they have said as if I had said it for myself. I shall confine my remarks today to the way in which excessive powers have been vested exclusively in the Ministry of Justice or the Lord Chancellor.
Dear old Henry VIII does not lurk around the corner in this Bill; as is the custom nowadays, that ogreish sight is there in full vision—you cannot miss him. What the Bill seems to have overlooked is that, since the Constitutional Reform Act, it is not the Lord Chancellor but the Lord Chief Justice who is the head of the judiciary. This Bill relates closely to how justice will be administered. As I have had the honour to hold the office of Lord Chief Justice, I underline that I have no wish to impose on my successor the additional burdens that what I shall now suggest would create.
Let us go back a little. These proposals followed an investigation by Lord Briggs, as he now is, addressed to small, low-value civil claims. Effectively, this Bill covers all non-criminal proceedings: every single case in the Family Division or the family courts, or the magistrates’ court doing family cases; every single employment case; every single tribunal case, and every single civil case whatever its value. That suggests, and it is easy to overlook because the Bill is modest and short, that this is a serious, wide-ranging Bill with wide-ranging consequences. All this is achieved by the creation of an Online Procedure Rule Committee. A number of aspects have already been addressed. We need to consider whether the Bill when it becomes an Act should not include an express provision relating to access to justice, but we will come to that at a later stage.
Perhaps I may I illustrate my concerns in a simple way, by reference to the membership of the committee. At present, there is a Civil Procedure Rule Committee. A majority of its members are from the judiciary and all levels of the judiciary, including magistrates, are represented on it. There is a tiny number of nominees made by the Lord Chancellor. It has worked well and nobody has suggested otherwise. Similar principles apply to the Family Procedure Rule Committee. Again, it works well. Let us contrast this new committee, which is vested with these vast powers. It will have five members, two of them nominated by the Lord Chief Justice and three appointed by the Lord Chancellor, empowered to look at all these issues. At the end of their consideration of the issues and what regulations should be introduced, the recommendations of three members of the committee will be sufficient to enable the Lord Chancellor to introduce the relevant regulations.
This is rather strange: three nominees by the Lord Chancellor and three needed to justify and support the regulations. Where does the Lord Chief Justice stand in this? Save in one respect, on these issues he is entitled to be consulted, but his “concurrence” is not required. As a matter of reality—good heavens, as a matter of plain English—and as a matter of constitutional principle, there is a chasm between consultation and concurrence. Concurrence requires approval, agreement. Consultation means that if I, the Lord Chancellor, do not agree, with you, the Lord Chief Justice, I can still go ahead; the regulations will still be lawful. Given the breadth of proceedings which are to be covered by this new rules committee, and the Henry VIII powers—I have not overlooked them—this is rather astonishing. After all, not only is the Lord Chief Justice the head of the judiciary, and ultimately responsible for the delivery of justice, but he also has the widest possible access to information about how these new systems are or are not working, where they could be improved and where there are concerns. That access is not available to the Lord Chancellor.
There is one aspect of the Bill which does require the concurrence of the Lord Chief Justice, and that arises under Clause 6(1) relating to amendments to the numbers and members of the committee itself. I venture to suggest that there is absolutely no legislative complication in amending every reference to “consultation” in the Bill to “concurrence”. That might help to put Henry VIII back into the naughty corner. If the Lord Chancellor considers that the concurrence of the Lord Chief Justice is being unreasonably withheld, and to the public disadvantage, it would of course be open to him to come back to Parliament to have the matter looked at here.
Lord Mackay of Clashfern (Con)
My Lords, I too welcome the Bill, which develops the system of assistance in the courts using modern technology. I also share the concerns already expressed. I do not propose to repeat those, because they have been expressed at least as well as I could have done. It is important that the new provisions should not in any way restrict the accessibility of justice. The figures showing how many people can use the systems we have now are interesting, and I would like to probe the detail of them. My experience, over quite a long time, has been that government numbers are not infallible, so one needs to look at that. I am sure that there is a need for care in this respect because, apart from anything else, modern systems of communication are very amenable to glitches of various kinds: we have had plenty of them over the years. It is extremely important that the public, especially people who may not be very familiar with these systems, know what is going on.
One thing that worries me somewhat is knowing for sure that you are on the correct government system. If you try to apply for a passport without too much knowledge of the system you can find yourself in some other group that wants you to pay fees for advice, something our generous Government do not require—so far—if you get on to the right site. If there is a system for paying fees online, you want to be sure that they are being paid to the courts, not to some other group who are willing to receive the money but have nothing to offer in return. I submit that the Bill itself should contain a degree of protection for people in this respect. The noble Lord, Lord Ponsonby, has already suggested that, and it is certainly worthy of consideration at the next stage.
One of the great features of our courts, over all the years that I have had anything to do with them, and for long before, is that they are very immune to any form of leakage. Even in the most important cases that are eagerly awaited by the public as a whole, you do not find a leak in advance of what the judgment is going to be. That is an extremely precious and important aspect of our justice system. One thing that we must be careful about in using an electronic system is that something of that kind could happen. I would certainly like the Bill to have some procedure for trying to ensure that that does not happen.
The next thing I want to mention is judicial discretion. I was always very conscious of the function of the listing officer in making hearings available for people. The speed of getting a hearing is sometimes vital, so the listing officers are officers of the justice system acting under the general directions of the relevant judges. It is very important that if we introduce a system based on electronics, that element does not disappear.
Next, is the Court of Protection covered by the Bill? Is it a civil proceeding, a family proceeding, or a protective proceeding? Is that different, or not?
I have had representations from the Federation of Small Businesses. Apart from anything else, it wants to be represented on the committee, and I shall come to that aspect in a minute, but it is also anxious about the fees that small businesses have to pay to ensure payment by big companies which just delay payment for as long as they can, until they are taken to court. The small business often has to pay quite a substantial portion of the total amount at stake in fees. That matter should be taken into account, and I hope that if a system of electronic communication is introduced, the fees will be reduced, but there is nothing to suggest that in terms in the Bill, although I believe that it should be looked for.
The quality of the English and United Kingdom justice system—I shall come to the distinction in a minute—is generally attributed to the quality of the judiciary. Your Lordships will be aware that there has been concern recently about the availability of quality for the judiciary. I believe that one of the reasons is that the Government, some time ago, departed from the rule that I understood: if someone is appointed to a secure position from which they cannot be taken except by resolution of both Houses of Parliament, the terms on which the person takes it on are the terms which will continue until the time that person retires, or in another way expires. That was undermined by the decision on judicial pensions, which was made some years ago. I believe that if a person is in top-flight practice at the Bar, certainly in England—it may be true in Scotland too—the amount they have to surrender to become a judge is quite substantial. Therefore, the terms on which they are taken on are of vital importance.
The quality of the judiciary is very important. I am not sure about the costs of these proposals, but I am certain that it is more important to ensure that the arrangements for the appointment of judges and the terms of service of judges are secured in such a way that top people can be invited, with a degree of confidence, to take on a judicial position.
As noble Lords know, I have not spent all my time in the practice of the law of England and it occurred to me to see what happens about Scotland. Lo and behold, Clause 14 provides that the Act will apply in Scotland to the two tribunals,
“to employment tribunals and the Employment Appeal Tribunal; otherwise, to England and Wales only”.
If that is so, how is the committee doing? Noble Lords will find that quite interesting. The procedure for committee appointments is made absolutely explicit. First:
“The Committee is to consist of one person who is a judge of the Senior Courts of England and Wales, appointed to the Committee by the Lord Chief Justice”.
So that is a responsibility for the Lord Chief Justice, but the person has to come from the judiciary or “the Senior Courts”. Noble Lords will know that the last time the constitution was changed, one of the results was that England lost its Supreme Court, so it is now from “the Senior Courts”. The important thing is that it is not from the Supreme Court; therefore the judge in question is a judge who exercises English jurisdiction.
The next person is,
“one person who is either a judge of the Senior Courts of England and Wales, a Circuit Judge or a district judge”.
These are all judicial titles from the English system and that person will be,
“appointed to the Committee by the Lord Chief Justice”.
The next person is,
“a judge of the First-tier Tribunal, a judge of the Upper Tribunal, an Employment Judge or a judge of the Employment Appeal Tribunal”—
there are judges of that type in Scotland but the sentence goes on—
“appointed by the Lord Chief Justice”,
and he does not appoint the judiciary in Scotland at all, so there is no possibility of any of these being Scottish judges.
The next person is,
“one person who is either a barrister in England and Wales, a solicitor of the Senior Courts of England and Wales or a legal executive, appointed to the Committee by the Lord Chancellor”.
It is obvious that these are all systems that apply on this side of the border. I suppose the,
“two other persons appointed to the Committee by the Lord Chancellor”,
might possibly have some relationship with Scotland, but it is by no means certain. Can my noble and learned friend explain how this is supposed to work in relation to the application of the Bill to Scotland?
I very much welcome the Bill but I think it probably requires a fair degree of consideration at later stages.
Lord Thomas of Cwmgiedd (CB)
I add my welcome to the Bill. I shall be very brief, since everyone else has welcomed it so warmly, but that is not to say that I am not extremely enthusiastic about it. I am very glad that the Ministry of Justice has found the opportunity of bringing it in as a government measure and for the work that has been done. A number of concerns were raised during the course of this debate, which I think must be addressed, but I will offer a little explanation, if the House will bear with me, as to why the Bill is so necessary.
The primary purpose of the Bill is to reinforce access to justice at an affordable price. What has happened, unfortunately, over the last two years is that, because the Treasury has not been prepared to spend money on justice, fees have risen and risen and risen, while the costs have not gone down. Therefore, one very much hopes that this Bill will bring down the costs of justice, particularly those for small claims, for ordinary citizens and SMEs.
The only way to do this is to take advantage of digitalisation. If you go into the Crown Court these days, you will see virtually no paper. On the other hand, if you were to go to the county court, you would probably find that little had changed—except for the advent of the telephone and some computers—to the volume of paper that would have existed in 1846, when the county courts were established. Therefore, there is a most urgent need to digitalise the process and procedures of the court.
Thirdly, it is quite clear that you can only digitalise and make a fair system if you have effective procedure rules. The proof of that pudding is in the work that my noble and learned predecessor did in the Criminal Procedure Rule Committee, which revolutionised the way in which criminal procedure has been dealt with. It seems to me that you can only look at providing justice more cheaply, more efficiently and more effectively if you can conduct an analysis of what procedural rules are needed. Before this idea was brought forward, an analysis was done of various common forms of procedure in civil, family and, if I may say so, administrative or tribunal justice. Unfortunately, over the centuries lawyers have always had the habit of complicating their own particular area and trying to show how unique it is; hence, you have many different names for the processes by which claims are begun, and you have different names for the people bringing claims. In this House, one again finds names that are not at first sight familiar. An analysis has been carried out, and it is right to say that what underpins this proposal is that, in essence, the basic procedure of all forms of litigation is broadly the same, and in the age of digitalisation that is a very important concept.
I do not know how many will recall this, but in the court system prior to the introduction of technology about seven or eight years ago, there were tens of different systems: one for the probate system, one for certain types of civil claim, one for the Admiralty, and so on. One consequence of that was that, when you tried to modernise it, you had the immense expense of trying to modernise so many different systems. The purpose of the modernisation programme—and one can never be sure when the Treasury will again provide money necessary to modernise the system—is to have something that can be modernised at little cost, so the whole purpose of the modernisation is to try to devise, for smaller and less complicated cases, a single procedural system that can be supported by a single digital system. Nothing else makes any sense, and nothing else is in truth affordable. No one would wish for more money for justice than I, but realism shows that there are many other priorities. So what lies behind this Bill is actually trying to harness modern technology to try to ensure that access to justice is again affordable and that the money that the Treasury will not give is found by making things work in a better and more effective way. Those are the principles that underlie the Bill.
It seems to me that two things are of fundamental importance going forward. First, it is obviously right that those who do not find using digital equipment easy must be entitled to have access to justice in exactly the same way as everyone else—to do anything else would be wrong. Secondly, I do not believe it has ever been suggested that, if proceedings were started using digital systems, and the making of the claim, the provision of the defence and maybe the making of some procedural directions were all done using online systems, a judge would not have the discretion to say, “This looked very simple, but it’s not—I must have a hearing”. I do not think it has ever been in anyone’s mind that, ultimately, you would take away the judge’s discretion. These points are obviously of concern and must be addressed. However, I hope that a way can be found of not putting too much in the Bill, because, as technology advances at a pace that is phenomenal and which no one can predict, having restrictions in the Bill may prove to be a very difficult matter in the future.
That is the background, but I will make one or two general observations. First, I entirely support what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, said, about the clauses in the Bill—those must be addressed. The Lord Chief Justice has, with the Lord Chancellor, an important responsibility, and as they have a partnership with regard to the running of the courts service, it seems that they ought to have a partnership in regard to the making of these rules, and they ought to agree when legislation should be changed.
Secondly, I draw attention to one provision of the Bill where a great deal more needs to be done. That relates to Clause 1(3)(b), which is the requirement,
“that the rules are both simple and simply expressed”.
Earlier this year, Justice—I declare an interest as a member of its council—produced a report under the chairmanship of Sir Nicholas Blake on Understanding Courts. It made 41 recommendations, most of which were directed at enabling lay people to be able to understand the court processes and the court having a duty to understand the needs of lay users. The Bill ought to go a long way to addressing that.
One of the difficulties that is clear is that rules take effect as subordinate legislation. Certainly, when I was chairman of the Criminal Procedure Rule Committee, having succeeded the noble and learned Lord, Lord Judge, we had one or two interesting discussions with those responsible for the scrutiny of legislation—they are, rightly, particular. However, if rules are to be written in a way that the ordinary lay person can understand them, that is quite a departure, although a very welcome one, from the way in which we have traditionally drafted matters. You might say, “Let the rules be drafted in language that lawyers are comfortable with, and we can provide an explanatory booklet”. That would be to defeat what I believe is essential, which is making law accessible, and there is no reason therefore why the rules should not be drafted in language that the lay person can understand without the need to go to a lawyer. I very much hope that the Government will consider amending the Bill to make clear that “simple and simply expressed” is not “simple and simply expressed for a lawyer”, which is one thing, or “simple and simply expressed for a lay man”, which, unfortunately, is quite another.
Secondly, it seems to me in this connection that it is important that the Government consider making it clear in the Bill that assistance will be provided not only for those who find it difficult to use digital equipment but for those who wish to try to understand more complicated issues, by having access to advice online. I therefore hope that consideration can be given to imposing on the committee the duty to ensure that its rules provide for proper assistance to be given.
I warmly commend the Bill, but I recognise that all the concerns raised must be addressed if it is to go through.
Lord Faulks (Con)
My Lords, as several noble Lords have pointed out, the Bill reflects what was in the Prisons and Courts Bill, which fell because of the 2017 general election. I was a Minister in the Ministry of Justice when Lord Briggs’s interim report on the online court was published. It was met with enthusiasm. I shared the general view that it was necessary to harness modern technology to improve our justice system. At the same time, I retained a little anxiety that some of the enthusiasm was prompted by the cost savings that would accrue to a department which had been a major casualty in the spending cuts—necessary though those cuts were.
The Government’s court reform agenda involves £1 billion-plus investment in transforming the courts and tribunal services. The Bill is a key part of that reform programme. The recommendations for changes to existing rule-making were made by Lord Briggs in his 2016 review, where he described the current system as designed by lawyers for lawyers. The Briggs plan was to introduce simple rules to go hand in hand with the online court. The rules of the Supreme Court were known for their arcane and sometimes impenetrable content. The CPR, born out of the proposals of the noble and learned Lord, Lord Woolf, were an improvement in terms of the accessibility of the language but have, I fear, become just as lengthy and encrusted with case law.
I welcome the call for simplicity and echo what the noble and learned Lord, Lord Thomas, said about access to justice, although we must be careful not to throw the baby out with the bathwater when approaching the making of the rules. It is plainly important to establish an appropriate committee to oversee the new rules, and in that connection, Clause 4 seems eminently sensible, although I take note of what the noble and learned Lord, Lord Mackay, said about the role of Scottish lawyers and others. I also note that the Law Society suggests that there should be representatives on the committee from all branches of the legal profession—solicitor, barrister and legal executive—whereas the current composition suggests that there would be only one of those three. I also observe that a lot of responsibility will fall on the one IT expert on the committee.
Lord Briggs recognised the need for help that may be required with the new process. He stated in a lecture I attended that, “that means face-to-face help for the digitally challenged, not just a helpline with a 25-minute waiting time”. I think all noble Lords will know what he meant. I hope that one slip in the process will not result in the dreaded words: “Start again”. We are, after all, not dealing with the renewal of a parking permit but a dispute likely to be of great importance to the parties. The Government have responded to those concerns by announcing a number of initiatives. I welcome them, although I would expect certain teething difficulties.
The Law Society goes as far as suggesting that there should be a choice between digital and paper when the rules are formulated. I am not sure about that. The pilots should help to evolve a satisfactory solution. If the online procedures are sufficiently accessible and there is assistance of the sort that has been discussed, would it not be better to make the whole process online? Of course, fundamental to the whole revolution is getting the IT right, a point emphasised by Lord Justice Briggs. The noble Lord, Lord Ponsonby, made some important points in connection with that.
By and large, the Explanatory Notes to the Bill are reassuring. I accept that the purpose of setting up the OPRC is clear and likely to operate in the interests of justice. I too retain some doubts about the adequacy of the safeguards against a theoretical Minister who might want to make some quite radical changes to court procedures. In this context, I must declare an interest as a practising barrister, although I accept that judges have given the courts the sort of reputation described by the noble and learned Lord. We advocates do our best to help, although what I say may be regarded as somewhat protectionist.
My reading of the Bill—I may be wrong—is that Clause 7 gives the appropriate Minister an effective veto in respect of the rules that the committee makes or amends. Clause 8 allows the appropriate Minister to give notice to the committee to make a rule for a,
“purpose specified in the notice”.
What is to stop a Minister—not the Lord Chief Justice—doing away with oral hearings or providing that disputes be resolved by officials employed by the Government? With great respect to the noble Lord, Lord Beith, the ECHR does not mandate an oral hearing in all circumstances. They are not always necessary but sometimes they are. Cross examination can and should be illuminating and while oral arguments can be too lengthy, they are still required even in the appellate courts where much of the work is done on paper. What safeguards are there in the Bill to prevent a Minister imposing unsuitable rules on the committee? Should there not be some restraints built in?
I appreciate that this may seem alarmist, but all Governments want to save money and hearings cost money. More worrying is the possibility of a Government of an extreme nature, left or right. This is not impossible in these volatile political times. Authoritarian Governments are not generally supportive of open justice systems, particularly if courts can and do find against them.
The noble and learned Lord, Lord Keen, said that this is a standard power and is there for minor revisions. I am sure that that is what he or some other Minister would use it for, and that the noble Lords, Lord Beecham or Lord Marks, would approach the matter in a similar way. However, what guarantee is there that some Minister of a Government of a different hue would exercise such restraint?
I turn next to enforcement. I understand that the Ministry of Justice is developing ideas about this. Enforcement is critical to the whole process. It is no good having a system that generates a judgment online using modern technology but leaves only 19th-century methods of enforcing that judgment. I look forward to hearing about the progress that the Ministry of Justice is making.
The financial implications of these potential changes are not spelled out in the Explanatory Notes. It is said that the rules will help drive efficiencies in the system and enable delivery of wider court reform savings of approximately £237 million benefits in steady state in 2024-25. Does the Minister have any further details? In this context, he might want to say something about the programme of court closures. I have never been convinced that all court proceedings must necessarily be resolved in large, formal and expensive court buildings. Council buildings have been adapted and have served adequately for many years. It may be different where there needs to be a cell infrastructure or there are particular security requirements. Closing courts is always controversial, as with local hospitals, since it can take a court further away from the locality of the parties to a dispute. Can my noble and learned friend help us as to whether the existence of the online court is of itself going to result in fewer court buildings?
This Bill has benign and worthwhile intentions, and I applaud them, but they should not prevent your Lordships’ House scrutinising it carefully to ensure that there is no collateral damage to our much-valued justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, from these Benches I echo the broad welcome given to the Bill from all around the House, and to the Government’s wider commitment to implement the recommendations of the 2016 review of civil court structures by Lord Justice Briggs, as he then was. We regard online procedures for commencing and pursuing proceedings in appropriate cases as a welcome innovation that has the potential to make justice more accessible, more efficient and less expensive. We too are encouraged by the success, mentioned by the Minister and my noble friend Lord Beith, of the online divorce service and online money claims, with their very low error rates and high rates of user satisfaction. Small businesses in particular, as the noble and learned Lord, Lord Mackay, said, will welcome the improved efficiency and lower expense of online cases. Indeed, in many ways it is a shame that the Bill has taken so long to reach us after the loss of the Prisons and Courts Bill when the 2017 election was called. That said, I believe that the Bill’s success will be measured by the degree to which it improves access to justice. In this, I echo the points made by the noble and learned Lord, Lord Thomas, and I agree with him that reducing costs along with simplifying and unifying procedures are central to achieving this aim.
For me, one of the most significant provisions in the Bill is the requirement in Clause 1(3)(a),
“that practice and procedure under the rules are accessible and fair”.
That is complemented and supported by the requirement in paragraph (b) that the rules must be,
“both simple and simply expressed”,
emphasised by the noble and learned Lord, Lord Thomas, who sought the strengthening of those words. However, the very helpful briefing provided by the Library says much about the challenge of ensuring accessibility. Lord Justice Briggs said that he was concerned to get beyond the,
“lawyerish culture and procedure of the civil courts”,
but he recognised that barriers might be raised by court users’ lack of understanding of or access to IT. He noted:
“Much the largest concern has been about the need to cater for those who would be challenged by the need to communicate with the court by computer”.
He said in the conclusions to his report in paragraph 12.8:
“The success of the Online Court will also be critically dependent upon digital assistance for all those challenged by the use of computers and upon continuing improvement in public legal education”.
I would go further. My concern, acknowledged in the HMCTS document on the court reform agenda, is with all those people who find it difficult enough to deal with court proceedings on paper and may face even greater difficulties with IT-based solutions. I question whether sufficient attention has been given to the problems likely to face potential litigants—probably defendants as much as or more than claimants—who lack the understanding to handle what is likely to seem a very impersonal system online. I am particularly concerned about the difficulties confronting those whose first language is not English; those who find all legal documents, however simplified, nightmarishly difficult to understand, particularly older people; and those whose ability to engage with officialdom is limited. These points were powerfully made by the noble Lord, Lord Ponsonby of Shulbrede, and the difficulties go far further than unfamiliarity with IT.
I recognise that the court reform agenda document commits to a number of genuinely helpful measures. These include functions to enable users to pause and take advice part way through any process without losing the work they have already undertaken on online forms, which would address the point made by the noble Lord, Lord Faulks, about the danger of users being sent back by the computer to start again. There is to be signposting to online or in-person advice services; a commitment to maintaining and simplifying paper forms, enabling them to be used in parallel with online services; and, most importantly, what is called—in what I suggest is unacceptable jargon—“assisted digital”, by which is meant telephone, web chat and face-to-face services to help users make sense of and use the online processes. I understand that telephone support will be provided by HMCTS, whereas face-to-face support will be delivered through the voluntary sector. The charity Good Things Foundation, already established in a number of areas of interaction with government, will through community networks engage directly with users needing support and assistance.
I welcome the commitment to measures of assistance that the Minister outlined in opening the debate, but I cannot understand why the Government cannot commit in the Bill to ensuring not only that practice and procedure under the rules are accessible and fair but that users will be able to secure adequate help in handling the new online procedures. I believe it would give the House and the wider public greater confidence that the introduction of online procedures is more about broadening public access to justice than about achieving efficiency savings if the Bill incorporated a commitment to help users access, navigate and manage their cases online. The risk of the Bill being perceived primarily as a cost-saving measure was pointed out by the noble Lord, Lord Faulks. I invite the Minister, with whom I have canvassed this possibility, to consider introducing or accepting an amendment requiring the Government to make support available. I was very pleased to hear powerful suggestions that such a statutory requirement be included from the noble and learned Lords, Lord Judge, Lord Mackay of Clashfern and Lord Thomas.
Turning to the detail of the Bill, I share the concern expressed by my noble friend Lord Beith at the plight of those who may not wish to use online procedures facing opponents who do, and about the interface between online and paper proceedings generally. I also share the concern of the noble and learned Lord, Lord Judge, about the Henry VIII power in Clause 9. I understand the reason for that power but agree with him that before amending legislation using it, the Lord Chancellor should be required to agree any amendment with the Lord Chief Justice and the Senior President of Tribunals, rather than merely consulting them. I also agree with him that the same principle should apply to appointments to the Online Procedure Rules Committee. It seems to me that he is also right to say that the principle should apply to other areas where the Bill requires only consultation at present but where agreement between the Lord Chief Justice and the Lord Chancellor seems not just desirable but essential. The noble Lord, Lord Faulks, directed attention to the danger of the Lord Chancellor having the power to require changes to the rules. I accept that that is a problem, but there is a parallel provision in the CPR to similar effect.
On a different point, I am also concerned that the commitment in the Bill and its supporting documents to piloting the new procedures before extending them nationally may be insufficient. The House of Commons Public Accounts Committee described the programme as a,
“hugely ambitious programme to bring the court system into the modern age”,
but had little confidence that HMCTS could deliver it successfully. In particular, it voiced the criticism that:
“The intended pace of the reforms did not allow for meaningful consultations or evaluation, and could lead to unintended results”.
I suggest that a careful programme of graduated piloting of all these reforms would help meet that criticism and enable pitfalls of the kind mentioned by the noble Lord, Lord Ponsonby, to be addressed when encountered on a manageable scale, before their wholesale introduction to an unready public by a largely guinea pig staff. The history of large IT projects in government departments strongly suggests a cautious and carefully staged approach, which this is not.
In this context, it is very important that there should be a statutory commitment to post-legislative review of how the implementation of these online procedures is working after perhaps three years. I believe the Minister may be sympathetic to that aim. It is also important that the introduction of new online procedures should not be used to justify further court closures, which make courts much more difficult to access and damage the local administration of justice.
We have had a helpful recent response to consultation on the court estate, but I am not sure that it is sufficiently flexible. Everyone accepts that we will continue to need court premises in cases where hearings are necessary, but I would argue that the way to respond to any reduction in the need for court premises is by imaginative and innovative use of existing buildings, not by court closures. I thought I detected some support from the noble Lord, Lord Faulks, on that matter. It is wrong to send litigants to distant court centres that are inconvenient and expensive to reach and I do not agree with the Government that accepting a 12-hour day, from 7.30 am to 7.30 pm, often in cases lasting more than one day, is an appropriate response.
In summary, we on these Benches welcome the Bill, we welcome online courts, we welcome the new procedures and we hope they will be successful. But we shall strive in the further proceedings on the Bill to ensure that at its heart is a commitment to increased access to justice.
Lord Beecham (Lab)
My Lords, I refer to my interest as an unpaid consultant in my former solicitors’ practice, as recorded in the register, and to my less-than-complete mastery of the digital process. I may not be alone in that in your Lordships’ House. Clearly there is a case for an appropriate development of the use of technology, not least because of the pressures on the system, enhanced as they have been by the closure of many courts and the inconvenience thereby occasioned to litigants. But this must not be at the expense of access to justice, or indeed a further dilution of the provision of legal aid and advice.
Why have the Government chosen to go well beyond the recommendation of Lord Justice Briggs in the 2016 Civil Courts Structural Review that the online courts should be used for money claims with a value of up to £25,000? Given the number of potential cases across the legal system covering both courts and tribunals, and the diverse character of those cases and of the parties involved, should not the new approach be piloted before being rolled out across the whole country and the whole system?
While the Online Procedure Rule Committee will design the rules, with the requirement that at least three of its proposed five members support the proposed rules, they can be required by the Lord Chancellor to make rules, and he or the Secretary of State will be empowered to amend, reveal or revoke legislation where necessary and/or desirable to facilitate the making of rules. What process is envisaged for the exercise of such powers, and will change be effected through the affirmative procedure?
Given the wide range of application of the new procedure, why is the committee restricted to five members? The Civil Procedure Rule Committee has 16 members, the Family Procedure Rule Committee has 15 members and the Tribunal Procedure Committee has nine. Here a much smaller figure is proposed. Will the Government ensure that there is gender balance within the composition of the committee and its staff, and that the Bar and solicitors are represented, together with representatives from the advice sector and, as has been suggested this afternoon, from the judiciary itself? And will they look again at the suggestion in Lord Justice Briggs’s report that the membership of committees should include in relevant cases members with relevant skills such as engineering and IT? Given their declared intention for the committee to be independent, how will the Government exercise their power,
“to require the OPRC to make online rules to achieve the specified purpose”,
within a specified time? The Law Society points out that Clause 1(3)(d) refers to the use of,
“innovative methods of resolving disputes”.
What do the Government have in mind in that area?
Clause 1(6) and (7) authorise rules to provide for proceedings of a specified kind not to be governed by, or to cease to be governed by, rules, and instead to be governed by civil procedure and other existing rules. What consultation will take place and what criteria will be applied to that process?
Clause 3 allows the Minister by regulations to provide for the person initiating proceedings to choose between online and other procedures and rules. What consultations have taken place or will take place on this process? What role is there for the defendant in such cases? The clause also empowers Ministers by regulations to allow online procedure rules for excluded proceedings. What is the rationale of this provision? Can the Minister exemplify how it will work?
Why will regulations empowered by Clause 6 be made by the negative resolution process?
Clause 8 empowers the Minister to write to the committee asserting that he,
“thinks it is expedient for Online Procedure Rules to include provision that would achieve a specified purpose”,
which the committee has to make “within a reasonable period”. The Explanatory Note says that this,
“may be required in situations of urgency”.
Can the Minister exemplify such situations and indicate what would constitute a “reasonable period”? Will it be open to the committee to decline a request or amend any proposed change?
Will the powers of the Lord Chancellor in Clause 9 to amend secondary legislation to reflect the introduction of online procedure rules be made by the affirmative or negative procedure? I concur with the Law Society’s view that it should be the former, as others have suggested today.
There is a particular concern about the impact of the Bill on housing cases, an issue raised by the Housing Law Practitioners Association, to which Lord Justice Briggs responded in his report by asserting:
“Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court”.
He also stated that he was,
“persuaded that there should not be compulsory inclusion within the Online Court of the damages-only sector of these claims, particularly where fixed costs recovery still supports an economic model for CFAs”.
He added:
“I continue to see no reason why there should not be voluntary admission of these cases, where a tenant claimant so wishes”.
However, he added that he could not see,
“how these counterclaims could easily be brought within the Online Court if the possession claim is to be excluded”.
On enforcement, Lord Justice Briggs recommended that,
“urgent steps need to be taken to address the under-investment and consequential delays which clearly undermine the quality of the County Court bailiff service”.
Can the Minister indicate whether, and if so when, the Government intend to address this issue?
Clause 2 does not explicitly refer to housing cases but, in the light of Part VII of the Housing Act 1996, it would appear that they are included in the category of civil proceedings. Perhaps the Minister will confirm that that is the case?
Your Lordships will be aware that housing law is an area in which access to justice is problematic with, in effect, legal aid and advice deserts in many parts of the country enhancing the vulnerability of tenants. It is not unreasonable to question whether in this most sensitive area of the justice system reliance on a digital system is the right approach. What steps will the Government take to ensure that adequate support is available to tenants, many of whom will be vulnerable and unequipped to contest a claim for possession, and will they, and if so when, review the efficacy of the changes embodied in the legislation?
There is wider concern about the impact of the policy on people unfamiliar with the digital world. PCS, the Public and Commercial Services Union, shares this concern and avers that the changes are primarily driven by the 40% cut in the Ministry of Justice’s budget, and points to the fact that the Courts and Tribunals Service’s own staff survey revealed that 85% of its respondents regarded the new technology as having a negative effect on timeliness, with 81% averring that it interfered with their ability to give legal advice and ensure a fair hearing.
Finally, can the Minister assure us that the next move to modernise the justice system will not be to replace the judiciary and tribunals with artificial intelligence?
Lord Keen of Elie
My Lords, on the last point, I am not aware of any proposal to attempt to replicate the ability of our judiciary with artificial intelligence. I am obliged to the noble Lord, Lord Beith, for his acknowledgement that the Government are seeking to leap into a gap rather than an abyss.
I will begin by making a number of general observations before I respond to the particular points raised by noble Lords—at this stage in the process we are listening and will consider the points made. First, there is concern that powers under the Bill will enable the Lord Chancellor to take extraordinary steps with regard to the judicial system; for example, by requiring rules that dispose of rights to an oral hearing across the board, perhaps, rather than just in particular cases. Let us be clear, those powers already exist. They are not exercised in that fashion and there is no intention to do so. That is not the purpose of this legislation.
The overarching powers of the Lord Chancellor with regard to the rules and the rules committee already exist with respect to the civil, family and criminal rules committees. This simply reflects that fact. There has been no suggestion in the past that the Lord Chancellor, who ultimately would always be answerable to this Parliament, would seek to abuse any powers he might have in that respect.
Furthermore, the Bill is intended to introduce the opportunity for additional, but simplified, court processes. It is not replacing the existing processes. At the prompting of Lord Justice Briggs’ report, it introduces the idea of a far simpler and more accessible system of disposal with regard to civil courts, family courts and tribunals. It is intended that it should be implemented in the first instance in the area of financial claims, where we already have some digitisation—a digital portal—and extend, in due course, to family law claims. I do not understand there to be any intention to extend it to the Court of Protection. I am not aware of any intention to extend it to housing claims but I will take further soundings on that point and respond to the noble Lord, Lord Beecham, when I have done so.
I emphasise again—and this is partly in response to the points made by the noble Lord, Lord Ponsonby—that we are intending to introduce an additional, much-simplified procedure that people can employ. Of course, we recognise that not everyone will wish to engage in that procedure, although why they would want to pursue a more complex and less accessible procedure might be difficult to fathom. We understand that some people will find it difficult to engage with such a digital procedure and that is why we intend to take steps to make assistance available to people, whether by telephone, other electronic means or face to face. As the noble Lord, Lord Marks, indicated, provisions are already in place for such face-to-face advice to be given.
Some people may want to engage in the simplified procedure but to do so in writing. There will be scope to do that. Somebody may put their claim in writing, rather than online, and that written claim may then by scanned on to the system. Somebody may respond to a claim in writing. Whether it is then appropriate for the claim to remain on the online system will be a matter of judgment at the time, depending on how parties respond to the system. As I understand it, there will be the ability to engage in the simplified process even if there is difficulty in actually entering the online system itself. However, there may come a point where there is really nothing to be gained from having people pursue such written forms along the lines of this new set of rules, and they may then revert to the existing civil procedures. That remains to be seen.
The noble Lord, Lord Ponsonby, talked about consultation and the potential for pitfalls with new technology. We are very conscious of that. The intention is to pilot the schemes and reflect what has already been done with regard to small financial claims by extending the limits for those claims. Overall, though, I emphasise in response to the noble Lord that we intend to introduce a simplified process that does not replace the existing process but will provide the means by which people without recourse to legal advice and guidance will be able to pursue a claim; in other words, as Lord Justice Briggs observed, a process that is designed not by lawyers for lawyers but for the use of the lay person.
Lord Ponsonby of Shulbrede
My Lords, the Minister has made that point twice. Does that mean that we will see two systems operating within the family jurisdiction: the simplified online system, to which the Minister has referred, and the existing paper-based system, which the Minister is saying is more complex? Will there be two systems operating in parallel?
Lord Keen of Elie
I do not suggest that there will be two systems operating in parallel, although it is perhaps the use of that word that I am concerned with. This will be the staged introduction of a simplified process that will cover simplified claims and, in due course, family law claims. It will not replace the family rules that already exist; it will be an additional, simplified process that people can engage in through a digital portal.
As I say, those wishing to use the simplified process may begin in writing and then see that written claim scanned into the system. They will still be using the simplified system of rules that it is intended should be introduced. There may be cases—this is where judicial discretion will come into it—where it is determined that it is not appropriate for a case to continue in that simplified process. There could be any number of reasons for that to occur and I would not seek to speculate on what they might be. That will be the outturn of the application of these processes once the relevant rules have been made and applied to particular types of claim.
The noble Lord, Lord Beith, asked what would happen when one party wanted to use the online process and another did not. As I have sought to explain, it will be essentially a situation in which a claim will be made using the simplified process. If it is not made online, it may be made in writing and then scanned into the process. Whether it is feasible for it to continue in the digitised process, we will have to wait and see. However, the idea is certainly to give the claimant the option as to where he begins with the claim. At the end of the day, there is an element of flexibility, I hope.
I turn to the observations of the noble and learned Lord, Lord Judge. He touched first upon the membership of the rules committee. The intention is that the rules committee should be kept relatively small and flexible. There is of course provision in the Bill for changes to be made in the constitution of the committee depending upon our experience, but this is going to be the starting point to see how easily it can work. Regarding the membership of the committee, with two appointed directly by the Lord Chief Justice and three by the Lord Chancellor after consultation with the Lord Chief Justice, the noble and learned Lord brought out the idea that where we have consultation within the Bill, we should replace it with concurrence. I question whether that would be appropriate. I hear what has been said on that point by number of noble Lords, but there is a balance to be struck here. For example, within the provisions of the Bill itself, where there is a need for regulation to be made subject to the affirmative procedure, noble Lords will see that there is to be consultation with the Lord Chief Justice.
Examples can be found in Clause 2, which addresses “‘Specified kinds’ of proceedings”. Regulations there are,
“subject to the consultation requirement”,
with the Lord Chief Justice, among others, and,
“subject to affirmative resolution procedure”.
The same applies to Clause 3. However, in circumstances such as those in Clause 6, where there is to be consultation, there is also a provision for the negative resolution procedure.
At the end of the day, it is the Lord Chancellor who will be answerable to Parliament. It strikes us as unattractive to have a situation in which the public, the Executive and Parliament wish to see a change in procedures and process, but the Lord Chief Justice can effectively veto any such change because he is not prepared to give his concurrence. The Lord Chief Justice is not answerable to Parliament but the Lord Chancellor is. In those circumstances, it would be for the Lord Chancellor to answer to Parliament after consulting the Lord Chief Justice.
Before I go on to a contrasting situation, the noble and learned Lord, Lord Judge, said that of course the Lord Chancellor can always come back to Parliament if the Lord Chief Justice will not give concurrence. Yes, he could, to try to seek primary legislation to overcome that issue and amend the existing Act. Given the legislative process, it might take years to address a situation in which changes are desired, if the issue is one of concurrence not consultation. Therefore, I do not believe that that is an answer to our concern on this point.
I will mention a contrast. Parts 1, 2 and 3 of Schedule 1 to the Bill deal with practice directions, which are given by the Lord Chief Justice to the judiciary. Those are very much the responsibility of the Lord Chief Justice, and in these circumstances, his obligation goes only so far as to consult the Lord Chancellor. I suggest that there is an element of balance here. When a matter falls very directly within the responsibility of the Lord Chief Justice, as with practice directions, he is required only to consult the Lord Chancellor, and when a matter falls very much within the responsibility of the Lord Chancellor, because he is answerable to Parliament, he is required only to consult the Lord Chief Justice. That is the balance that the Bill seeks to achieve in this context. It may not be a balance that is acceptable to everyone, including the noble and learned Lord, Lord Judge. I hear what he said on this point and it is something I will consider before Committee. Nevertheless, that is how I would explain the present position.
I turn to a number of points made by my noble and learned friend Lord Mackay of Clashfern. He mentioned the dangers of any electronic system and what he termed “leakage” therefrom. That is a perennial problem for us all, but it is one we are conscious of and will seek to guard against. I see no reason why there should be any greater problem there than there is with the present judiciary.
My noble and learned friend Lord Mackay also asked whether the Court of Protection would be covered. Strictly, one could argue that the proceedings of that court are civil proceedings, but there is no intention to make them subject to this simplified procedure. As I understand it, we are concerned in the first instance with financial claims, and thereafter with developing this in respect of family law claims. Each step of the way will involve a process of consultation, not only with the relevant committee but with the Lord Chief Justice, the Secretary of State—in so far as it deals with employment tribunals and employment appeal tribunals—and the Senior President of Tribunals.
My noble and learned friend Lord also raised an issue about the quality of justice being attributable to the judiciary—with which I entirely concur—and concerns about such matters as pensions, which are currently being considered and addressed by us. I do not take that matter further.
He also raised the question of Scotland, because, in respect of the employment tribunals and employment appeal tribunals, these provisions extend to Scotland. Of course, at present, these are UK-wide jurisdictions, which is why the provisions with regard to appointment to the committee are set out as they are. There will be developments there because, under the amended Scotland Act, the Scottish Government will, in due course, be able to take up responsibility for employment tribunals and employment appeal tribunals. As and when that happens, the whole process will be handed to them and will come under their own tribunal legislation. In the meantime, we have consulted, not only with officials but with Ministers in the Scottish Government, who have expressed themselves content with the way the present provisions are formulated. I hope that brings some relief to my noble and learned friend.
The noble and learned Lord, Lord Thomas of Cwmgiedd, also welcomed the Bill. He raised a number of questions about how it would operate in practice. He emphasised a point made by Lord Justice Briggs: the whole point of this process is to bring forward a set of rules—a system of justice—that is not only accessible to lay people but understood by lay people. That is what lies behind much of what we propose in this legislation. We will ensure that those lay persons are given assistance in accessing these digital portals. I do not consider it necessary to place that in the Bill, and I question the way in which that might be done. I suggest that it is better that we have sufficient flexibility to ensure that, as technology develops, we can respond to those developments and make the appropriate provision available for those lay persons who wish to employ these processes.
My noble friend Lord Faulks and other noble Lords referred to the programme of court closures. There is no direct link between these proposals and court closures, but if this digital process is successful, we may see a reduction in the demand for physical court structures. However, that is an incidental point and not the intent behind this legislation, which is to improve access to justice for all. On that last point, I am reminded that my noble and learned friend Lord Mackay also raised the question of small businesses being anxious about fees and related matters. Of course, if we can develop this digital process successfully, the cost of litigation should be reduced. I hope that gives some reassurance to parties such as small businesses.
The noble Lord, Lord Beecham, raised a number of issues—including housing, on which I will write to him—about the powers available to the Lord Chancellor. He referred in particular to Clause 9. The Lord Chancellor’s power there is subject to the affirmative procedure. That is expressly provided for already. There are a number of instances in which there is provision for the negative procedure, but the power in that clause requires the affirmative procedure.
The noble Lord referred to Clause 8 and asked what would be a “reasonable period”. I have to respond: how long is a piece of string? That would be addressed in the facts and circumstances of any case, but it is not something we could anticipate at this stage. The purpose of these provisions is to provide the maximum flexibility for the provision of a simple and accessible set of rules for disposing of civil claims, family claims and tribunal matters. To achieve that flexibility, we have somewhat wide-ranging provisions, but they are no greater or wider than those for the existing Civil Procedure Rules and Family Procedure Rules. They will be exercised subject to consultation or concurrence with the judiciary and disposed of by an independent committee, with the Lord Chancellor being answerable ultimately to Parliament not only for their terms but for their effects.
Finally, on review, it is intended that we will have an interim review in about 2021 and a completed review in about 2023 or 2024. It would not be sensible to seek a review any earlier than that because we need to see how these processes will work in practice and evaluate feedback from those who engage with them.
In these circumstances, and having regard to the reminder I keep getting from my Whip about the amount of time I have, or do not have, left, I commend the Bill to the House.
Schools: Adopted Children
(5 years, 6 months ago)
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Lord Triesman
To ask Her Majesty's Government what plans they have for schools to improve the educational experience and attainment of adopted children, including those adopted from abroad.
Lord Triesman (Lab)
My Lords, I am grateful to the House for the chance to raise a matter that is close to my heart. I start by declaring an interest: I have an adopted 10 year-old daughter, and there is no greater blessing in my life than this wonderful child who became part of my family when three days old. Thank goodness she did not have in her background parents who were substance abusers or who bequeathed her other disadvantages, but children who arrive with difficulties of this kind are to be equally cherished.
I shall see in this debate no grounds for ideological differences on the matters that we discuss. David Cameron made a significant difference to our social attitudes to adoption. He could not see why, sensible precautions having been taken, a young person should spend many years in care before finding a loving home and family. The practical requirement for us is to make sure that it works to the greatest extent possible.
There are real challenges. For a variety of reasons, these kids have special needs, whether or not their birth parents were substance abusers or had major social or medical problems. The challenges are easy to identify, and the research is full of them. In summary, the DfE showed conclusively in 2018 that, at key stage 2, children who left care through adoption would do better at reading, writing and maths than children who were simply looked after, but they would do significantly worse than non-looked-after children. As Andrew Brown, Cerith Waters and Katherine Shelton show in their meticulous study published in Adoption & Fostering in 2017—that is the relevant peer-reviewed journal—education performance for children adopted from care demands comprehensive and robust study. The legal requirement to collate and monitor academic achievement and attainment of looked-after children unfortunately does not require specific study of adopted children. It would be easy to add this dimension to the research requirement. Will the Minister undertake to do so? It would certainly fit with the findings of the Timpson report.
The reasons for doing this are very strong: 94% of all the major research papers show adoption to be correlated with lower academic attainment and significantly elevated levels of behavioural problems. This is clear across all age groups to early adulthood and grows significantly in the teenage years. Can the Minister agree today to routine monitoring and reports? Will the data classify not just looked-after children but previously looked-after children who are now adopted? In the same vein, will Ofsted inspections focus some attention on the same children and the competencies within their schools to attend to the needs likely to be distinct among them, especially around the trauma of attachment?
Nearly four in five adopted children say of themselves that they are confused and worried at school and believe that other kids enjoy school far more. Two-thirds report being bullied or teased because of adoption. Some 70% of their parents fear lower attainment and three-fifths of those do not feel that their kids have an equal chance. These latter data come from Adoption UK, which I regard as an exceptional body. It details the challenges of abuse, neglect and trauma; the lack of widespread professional development in this area among teachers; the need for, but so often absence of, empathy; and, of course, the real paucity of resources, not adequately resolved at the moment by the pupil premium plus.
There is work in this field which is well worth celebrating, and I want to celebrate it. The leadership of Stuart Guest, head teacher of Colebourne school in Birmingham, has been of the highest order. He lectures widely and effectively to educationalists and parents and has had an impact even on Ofsted. His guidance is well worth seeking. A few schools that I know have reworked their provision. For example, in Primrose Hill Primary School the head teacher Robin Warren and the very talented SENCO Syra Sowe have recast provision among the many challenges experienced in their inner-city school, which is rightly seen as exceptional. They show that it can be done. Yet, generally, there are still problems at scale requiring urgent action.
Adopted children are 20 times more likely to be excluded than their classmates. In the first three years of primary school, they are 16 times more likely to face temporary exclusion. The Tavistock Institute demonstrates that 72% of these children have behavioural difficulties and many of their parents are struggling to cope—as are their schools and local authorities. The adoption support fund helps, but it is not really there for the schools. Parents, perhaps rightly, have the central role, but most of what they do relates directly to schools and has to be supported by them. Social and emotional trauma, capacity for executive functioning and the creation of sensory diets to regulate behaviour all need school engagement. A new balance has to be struck. Will the Minister this evening set out an agreement to provide new guidance to assist parents to engage in a professional dialogue with their child’s school to ensure that there is a holistic result from the deployment of ASF?
The best results in educational attainment have been seen in schools where there is specific training in attachment and a designated lead teacher. This should hardly surprise us; it is exactly the approach that we have adopted with safeguarding and Prevent. We expect someone to lead on it. Will the Minister today commit the Government to mandatory training on attachment and set out a timetable for doing so? Can we be assured that it will cover the needs of local authorities?
Quality teaching for teachers always starts in their own teacher training. Will the Minister take steps to ensure that attachment training is part of the initial teacher training syllabus? It could be done in the annual letter to the funding council, for example, as a way of accelerating it. Again, will the training schemes involve local authorities? Local authorities often have skills as commissioning experts, but they have few as social intervention experts; they are not the same thing. It is an area in which Ofsted can improve as well. It needs a battery of questions to ensure that a new framework of relationships is present between all the actors—a viable scaffolding. Can the Minister not insist on this?
There should be a requirement for an inclusion plan that is specifically funded. The pupil premium should do this, but many head teachers will tell you, without being prompted, that it gets mixed in with the other things that are now needed to prop up a school’s budget in a period in which there have been so many cuts and where budgets are under so much strain. Unlike the sports premium, it is not carefully inspected. Will the Minister ensure that inclusion plans for adopted children are funded and that funding is spent on those children, rather than simply being put into the general fund?
I advocate one more, but vital, change. Previously looked-after children adopted in the UK have rights to select, through their parents, the secondary school best able to meet their needs. It is a key judgment that parents are called on to make—and quite rightly. Kids adopted from abroad—even full UK citizens—have no such right. I know from helpful Answers to Written Questions that the Government want to correct an obvious anomaly. They plainly want to do so, and I applaud that fact. Indeed, the Schools Minister has written to all local authorities asking them to behave as though the law had already changed for this very small group of vulnerable children.
However, most local authorities, I am afraid, have not adjusted. For reasons that are all too familiar to the House, the Government have not found time for the legislation. Noble Lords may feel that it would have been a more fruitful use of a good deal of our time. Given that the change is wholly consensual, I ask today for a firm timetable. But I respectfully give notice to the House that I will seek the House’s approval to introduce a Private Member’s Bill to correct the inherent discrimination involved—better a government Bill, but if necessary someone else will need to do the job.
All these matters need to be championed. Sir Kevan Collins, the DfE evidence champion, has a very full schedule. The kids adopted from care need specific time and attention, and I suggest that they need their own champion. In any field of education, if a cohort of nearly three-quarters of the children were in difficulty, with their parents struggling to cope, we would surely act and allocate a clear responsibility.
Many reforms take time, and we may comfort ourselves on occasions that delay does not always destroy the opportunity altogether. But that is not so with these kids. They get their childhood and education just the once. When it is gone, it is gone. It is a simple fact, and it should compel us now to act decisively.
The Earl of Listowel (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Triesman, in this debate, and to thank him for calling it. In particular, I would like to say a few words about the need for empathy and the difficulties in achieving that. I was grateful to the Member in the other place, Rachael Maskell, who is leading an inquiry into adoption. We had a meeting with her yesterday, and also attending was the chief executive of Adoption UK. It was very interesting to hear what she said. Clearly, it is a very well-considered organisation that is very effective in its role.
I want to voice concern about the underestimation I see in England of the complexity of the needs of all our children and young people, and the importance of giving them the very best start in life. It is an issue about adopted children, fostered children, children under special guardianship and children who have experienced sexual abuse but are not in any of those settings. It is a question of child development: children, when they become adolescents, may have been loved to pieces by their parents, but they can still be very challenging and very distraught. As the noble Baroness, Lady Tyler, keeps reminding us, there are issues of mental health among children and adolescents, and rising levels of morbidity there.
Schools and teachers in schools are faced with rising levels of poverty. Levels of homelessness are at their highest since 2003, with more than 130,000 children living in bed-and-breakfast or hostel accommodation. They have had all the cuts to services that supported families in the past have had to contend with. Teachers and their schools face this burden, all the weight of social malaise and then, on top of this, the Government—understandably, in many ways—have set very firm and clear academic targets for schools to achieve, and if schools do not achieve them they are very severely penalised. This is the context in which we need to think about the needs of these children.
Only this week we heard that playtime in schools has reduced at a very significant rate: there has been such an emphasis on learning and digesting knowledge that children are not getting the opportunities to exercise or to socialise and make the relationships that are so important to their physical and emotional well-being. I am very concerned that many schools are finding it so difficult to find funds that they cannot pay for the continuing professional development of their teachers, which is vital to this issue. We need to make teaching attractive for our teachers; we need to care for and love our teachers if they are to care for and love our children—and I fear that very often this is not what is happening for our teachers.
I want to emphasise that the job of bringing up children is complex and very important, and we seem not to be doing what we need to do to recognise that. As for empathy, I remind noble Lords of an early experience I had working with children in my early 20s in Crouch End, north London. I was working on a voluntary play scheme and there was one boy—10 years old, blond, a bit overweight—among the 30 or 40 children there. The staff were not particularly well-qualified to do the work and were certainly low paid, and this boy was particularly problematic. He would get into tantrums, he would disappear, we did not know where he was going, and he would spend a lot of his time in the inner tube of a wheel, just lolling around. He was challenging and we found him difficult to cope with. It was only on a coach ride to some activity we were doing towards the end of the time he was with us that he said, “I will be spending time with my new parents soon. We are going off to Butlin’s together”. It was only at that point that we learned that this child was maybe going up for his first adoption—or maybe he had been adopted before—and we could understand why he was behaving in a challenging and problematic way.
I guess the lesson from that is the need to share information, so that those caring for young people know their background, but also that we were so overstretched that we could not think about the needs of this young person. To be able to feel empathy, to walk around in the shoes of other children—of other people, not just children—one needs the time and space to do so. One needs to have the time to think about their needs. That is my small contribution, from my experience.
I welcome several of the measures that have already been alluded to, in particular the adoption support fund, which has been so important. Indeed, we heard from a mother yesterday, Michelle, that the adoption support fund enabled her to access help, which enabled her to negotiate the complex education system and eventually enabled her to access a special school for her son, who is on the autistic spectrum and has attachment issues. He is a very challenged young man, but, thanks to the adoption support fund, she managed to get the right education arrangement for her son. We heard from her that, for so many parents, the adoption support fund, introduced by the previous Government, has been extremely helpful. It is so important in preventing adoption placement breakdowns.
I ask noble Lords to imagine for a moment what it must be like for children who are taken for adoption, following the trauma and the many losses that they have experienced. Lo and behold, one day they find parents who will take them in and make them part of their own family—but then the placement breaks down. What can it feel like to such a child? We need to avoid adoption placement breakdowns at all costs. I have always been puzzled that we do not keep figures on adoption placement breakdown. We have often asked and we do not know, and it is hard to measure the effectiveness of the adoption support fund without knowing what difference it has made to adoption placement breakdowns. I am sorry not to have given notice to the Minister of that question, but perhaps he can write to me about why it is that we do not monitor the rates of adoption placement breakdown.
We have heard about the pupil premium and pupil premium plus, a very welcome innovation. We have heard about virtual school heads, which I guess will apply to this group; I hope that they have by now. About a year ago, there was new guidance on initial teacher training that made child development a statutory part of that training. That is very welcome and seems very pertinent to this issue. How well implemented has that statutory guidance been? How effectively has it been implemented? I am afraid that there are so many ways into teaching now that it might be that many teachers do not get access to that important information on child development.
I welcome what the Minister said about a case load review for teachers, looking at the burdens that fall on teachers, administratively and otherwise. Can he perhaps show the House how that is processing so that they will have the time to think about their children and exercise empathy?
May I draw the Minister’s attention to the work of Emil Jackson, who is head of child and adolescent psychotherapy at the Tavistock Clinic? He went to Westminster School, around the corner from here, and has provided services to teachers there, but he works with groups of school staff and head teachers on an ongoing basis to help them reflect on the work that they do with children. It significantly reduces sickness absence rates. This model, working with groups of teachers and school staff to support them and help them reflect on their relationships with young people, would be very helpful for all of our children, particularly those who have experienced trauma or have been adopted.
I see that my time is almost up, so I will return briefly to continual professional development. Schools are short of funds and so cannot provide the continual professional development that teachers need. In any case, there is a real issue about the coherence of what is on offer in terms of continual professional development for teachers. So I would be grateful to hear from the Minister whether he will be making a strong case in the spending review for more funding for schools, in particular to provide continual professional development, and whether he is looking at what is available for teachers in the area of continual professional development and how to improve that offer for teachers. I look forward to the Minister’s response.
Lord Russell of Liverpool (CB)
My Lords, I too thank the noble Lord, Lord Triesman, for initiating this short but timely debate. Yesterday, he and I, along with the noble Earl, Lord Listowel, attended the first day of an inquiry by the All-Party Parliamentary Group on Adoption and Fostering into the adoption support fund, which was very informative. This afternoon, I listened to the Secondary Legislation Scrutiny Committee, on which I was allowed to freeload, and heard the Parliamentary Under-Secretary of State for Children and Families, Nadhim Zahawi, discuss the current status of adoption strategy and the Government’s decision to end the national adoption register at the end of March. It was an interesting discussion; I do not think we were completely convinced by the Minister’s attempts to reply, but he did his best.
I declare my interest as a governor of Coram. We have been trying to do our best for children for quite a while—since 1739—so we have learned a thing or two along the way.
I praise the Government for their initiatives in recent years, which are a testament to just how seriously they genuinely wish to improve the lives of adopted and cared-for children. The combination of the Staying Put initiative, the pupil premium, the adoption support fund and the creation of virtual school heads are all laudable. They have also commissioned the Timpson report into school exclusion and have accepted many of its recommendations.
I shall embarrass Edward Timpson, in what I hope is the best form of being singled out. He was extraordinarily fortunate to be born into an amazing family, one of the children of the truly extraordinary Sir John Timpson and his late wife, Alex. They had three children of their own, adopted two more and fostered more than 90 children. It is therefore not hard to imagine how the environment he grew up in gave Edward profound insights into and empathy with the realities of early-life trauma and their consequences. In just under five years at the Department for Education, initially as Parliamentary Under-Secretary of State and then as Minister of State for Children and Families, he made a real difference, bringing knowledge, insight and a relentless focus on the child, and he developed a huge amount of respect and affection across the political divide and throughout the organisations connected with children and families—perhaps rather a difficult act to follow.
While I wish the current Minister of State well, I find myself becoming increasingly irritated every time I see him sharing his views publicly about our present impasse over Brexit. I would infinitely prefer him to focus 100% of his time on what is best for children and families, and I gently suggest to the Minister that he whisper into his colleague’s shell-like ear that perhaps his predecessor would have behaved rather differently.
Having spoken about Edward’s depth and breadth of knowledge, I would like to ask the Minister about his own experience of working with adopted and cared-for children within the schools in the Inspiration Trust. How do these experiences inform his attitude and approach towards encouraging these government initiatives to go forward?
The comprehensive briefing pack we were given for this debate, provided by our wonderful Library, included Adoption UK’s 2018 report Bridging the Gap, which the noble Lord, Lord Triesman, mentioned. Its distillation of the issues where it perceives that there are gaps is masterly. It identified four principal areas: the understanding gap, which is the need for professional development for all educators; the empathy gap, which prioritises emotional and social literacy rather than league table results; the resources gap, which highlights the need to understand and even out the postcode lottery of uneven coverage and delivery; and the attainment gap—the need for accurate, timely data, continuously measured, analysed, understood and acted on.
Several things jumped out at me from the report. First, there is a problem. It is crystal clear that there is a link between better well-being and better academic achievement. Listen to this primary school head teacher talking about her dilemma, saying that,
“we have an entire school system built on high levels of cortisol and stress, a focus on accountability, results and endless testing. We are told to focus on children’s mental health within a system that seems determined to destroy it”.
What a cri de coeur.
Secondly, there is a solution. Listen to this adoptive parent. “My child moved from a school with no understanding or willingness to understand his attachment and trauma issues. It was horrific for him and horrific for us as a family. His new school is understanding, loving and kind and he is like a new boy”. It can work. It just needs people with the right attitude.
Thirdly, I have a reflection. This is the power of a redrafted school behaviour strategy. “Thinking of a child as behaving badly disposes you to think of punishment. Thinking of a child as struggling to handle something difficult encourages you to help them through their distress”.
I have three questions for the Minister, which he has heard in the past. What analysis have the Government done of how effectively the pupil premium has been used to support adopted children in education? Thankfully, the Government have accepted the Timpson review’s recommendation that the DfE should publish the number and rate of exclusion of previously looked-after children who have left local authority care via adoption. What further steps are being taken to ensure improvement in the collection and scrutiny of data on adopted children’s educational outcomes?
Finally, the work of Coram and other charities with adoptive parents and kinship carers has found that many can feel blamed and isolated, with a lack of support while their children struggle at school. What consideration have the Government given to peer models of support for those groups, where adopted and kinship carers support each other, which could complement the work of the virtual school heads? Will the Minister note that, from the evidence we heard yesterday afternoon about the adoption support fund, while there was much singing of its praises, it does not encourage or enable funding for groups of adoptive parents or kinship carers to work together? Will the department please look at that to see how it could make it easier? A problem or a learning shared can be so much more powerful than doing it alone.
I commend the Government for having moved the dial on adoption in a positive direction, but I plead with the Minister, given that Her Majesty’s Government appear to have the unwonted luxury of rather a large amount of time on their hands, to take advantage of it and forge ahead in this area.
Lord Storey (LD)
My Lords, first, I put on record my thanks to all parents who adopt or foster children for the tremendous amount of work they do. I also commend the schools themselves. I was very much taken by the point made by the noble Lord, Lord Russell of Liverpool, about Edward Timpson: I have said the same thing in debates on many occasions. Thinking about it, during the coalition years, the Children and Families Act was started by Sarah Teather. I put on record my thanks to her for starting that ground-breaking legislation.
I am particularly grateful to the noble Lord, Lord Triesman, for securing this debate on the educational attainment of adopted children today, but I start by placing this group of children in a wider context. Inevitably, a child who is adopted is unable to live with either or both of their biological parents. Almost inevitably, that is the result of one or more traumatic events in a child’s life. For a child or children living in England, there are a number of factors: the death or severe illness of a parent, the breakdown of a relationship, or personal issues affecting one or both parents, such as drugs or alcohol. For children adopted from abroad, in the best case, a baby may be adopted soon after birth if the family cannot look after it, or may be the result of a surrogacy arrangement. More common, I suspect, is that children have been separated from their families or orphaned by conflicts and war. In other areas, severely damaged children have been found in children’s homes. Others have been orphaned through the spread of AIDS in their communities. These children are a significant subset of children mostly in the care system and either being fostered or living in—and often moving between—residential children’s homes.
I have read the very detailed briefing prepared by the Library and will not repeat the facts and figures already quoted. However, it is clear that, as a group, while they achieve more than children who are looked after, adopted children do not achieve nearly as well as non-looked-after children. Given the trauma that many adopted children have suffered and the upset and dislocation that all of them have experienced, this group of children will find it more difficult to make the most of the education opportunities available to them.
From my long experience as a primary teacher in Liverpool, I know the impact on children whose family lives have been disrupted. For many looked-after children, school can offer the only stability in their lives, with frequent moves between foster homes and children’s homes. By comparison, children who are adopted are in a much more stable environment, but that alone does not wipe out the trauma.
However well an adoption works—and many do through the efforts of the adoptive parents—we owe it to these children to do as much as we can to compensate for their unnatural situation. It is unfortunate that many adopted children are treated badly, not because of who they are but because of circumstances utterly out of their control.
Adoptive parents need all the support they can get so that the adoptive family can cope with the ups and downs characterising life in every family. Good relationships with the adopted child’s school can do much to smooth out any problems at school, which may be the result of earlier trauma. In turn, schools can make sure that teaching, non-teaching and pastoral staff are sensitive to the needs of adopted children.
There should be a member of staff in every school who has been trained or has ready access to training in how to support adopted children, and there should be a whole-school policy to ensure that the additional needs of adopted children are understood and dealt with sympathetically. These additional needs may relate to emotional and behavioural issues in addition to lack of educational attainment.
The Children and Social Work Act 2017 requires the remit of the virtual head teacher to include the promotion of the education and attainment of adopted children. The virtual head teacher should be in close contact with the designated member of staff in each school.
I pause to reflect that there is often an issue with schools’ working relationships with social services. Far too often, the social worker with that case is moved on. It is my experience that the social worker working with the family and the school is often employed only for six months, and 12 months if you are lucky. That does not bring the stability that the family, the adopted child and the school need. We need to look at why this is happening.
I have been asked to raise one specific issue—it has already been raised, but I promised. My noble friend Lady Walmsley wanted to be here today but is speaking in another debate. She has asked me to raise the issue that the noble Lord, Lord Triesman, raised about the admission of adopted children to school. While children adopted in the United Kingdom have been given priority for admission to schools, this does not apply to children adopted from abroad. To me, this seems absolutely ludicrous.
The Schools Minister, with whom my noble friend Lady Walmsley has met, indicated that to accord them equal treatment would require primary legislation, adding that there was no chance of the Government finding parliamentary time until “all the Brexit stuff is over”. Trying to determine when all the Brexit stuff will be over under the present Administration is like asking how long a piece of string is. Since the Brexit stuff began a couple of years ago—although it seems considerably longer—the Government could easily have found time to put this acknowledged injustice right. Can the Minister give a commitment at least to issue guidance to local authorities and academies requesting them to accord the same priority to children adopted from abroad?
I conclude by saying that we are all aware of the pressures on children and young people in the 21st century. They are far greater than anyone in this Chamber has experienced. Those pressures are often magnified for adopted children, many of whom will become parents themselves later in life. They need to have a positive attitude to the way in which society treats them. How we look after adopted children and looked-after children, the most vulnerable children in our society, is the litmus test of a caring and compassionate society.
Lord Watson of Invergowrie (Lab)
My Lords, I pay tribute to my noble friend Lord Triesman for initiating this debate and for his powerful opening speech which, as he said, was informed by his personal experience as an adoptive parent.
There are over 40,000 children in England who have left care as a result of being adopted or finding a guardian. Many of them will have suffered loss or trauma and therefore require special support. For too many, that is sadly not what they experience. Last year, Adoption UK’s report entitled Bridging the Gap, which has been referred to by several noble Lords, explored the powerful links between well-being and attainment in school. It revealed that adopted children struggle more than their peers at school in several ways and that there are several gaps as a result.
The first is the understanding gap. The report found that almost three-quarters of adopted children said that they did not feel that their teachers fully understand or appreciate their needs and how to support them. Teachers are already underpaid and overworked, so it is essential to ensure that they get the support and training necessary to enable them to bridge this understanding gap. It is also important to inform and educate children about this. Two-thirds of adopted children surveyed had experienced bullying or teasing because it had become known that they were adopted. Under the new regulations on teaching relationships education, pupils will learn about the variety and diversity of modern families. They also need to be taught about families where one or more of the children do not live with their birth parents. An increased understanding of adopted children among their peers is necessary to counter that type of bullying.
Related to this is the empathy gap, which was stressed by my noble friend Lord Triesman and the noble Earl, Lord Listowel. It is key to giving adopted children a chance of receiving an education that will enable them to make their way in the world. It should be a matter of great concern to the Department for Education and Ministers that the Bridging the Gap report found that 60% of adoptive parents do not feel that their child has an equal chance at school. This needs to change, because every child deserves an education that allows them to develop their talents to the full. Yet adopted children are much more likely to be excluded from mainstream school than their peers, on which I shall say more later.
Many of the challenges that these traumatised children face are often exacerbated by an educational environment and culture which, it seems, cannot accommodate their needs. The third gap concerns resources. Schools in England are facing real-terms funding cuts leading to a decline in teaching assistants and specialist support, the very people needed to support looked-after and previously looked-after children. Cuts typically disproportionately affect the most vulnerable, and it is no different in schools.
Finally, there is the attainment gap, which results from the early traumas experienced by many adopted children. DfE statistics on adopted children’s attainment shows that they perform only half as well as the general pupil population at key stage 2 and in their GCSEs, so it should be no surprise that they are also more likely to leave school with no qualifications. The attainment gap will be meaningfully reduced only when the other three gaps of understanding, empathy and resources are addressed.
It is now 10 months since Adoption UK’s report was published, and I would like to think that its recommendations will have been studied carefully by DfE officials. I hope that the Minister will be able to point to actions that the Government are taking or will take to address the gaps referred to in the report and how they can at least be narrowed, if not closed.
In June 2018, a DfE official was quoted in Schools Week as saying that, from September of that year, schools would be required to appoint a designated teacher for children adopted from care to help them at school. In addition, to gain their qualified teacher status, trainee teachers would be required to show that they understand how a range of factors such as social and emotional issues—and how best to overcome these—can affect a pupil’s ability to learn. Can the Minister say what monitoring of progress in these two areas has since taken place and what that monitoring shows?
This feeds into the issue of exclusions, where the figures concerning adopted children are extremely worrying. In November 2017, Adoption UK’s Schools & Exclusions Report found, as my noble friend Lord Triesman said, that adopted children are 20 times more likely to be permanently excluded from schools. Official DfE statistics also show that looked-after and SEND children are more likely to receive exclusions than their classmates. Adopted children share many of the same issues as looked-after children and are disproportionately represented within the SEND cohort.
Despite this, official figures on adoptees being excluded are not currently collected and analysed by the DfE. Why would the Government not collect and analyse full data on attainment, special needs, exclusions, truancy and NEET status for adopted children? It is essential that the Government collect and analyse exclusion and performance statistics for adopted children, as they do for other cohorts, and I hope the Minister will be able to announce today that this will change. If he is not able to do so, I trust that he will be able to explain why. How will educational outcomes for adopted children improve without measuring them? The short answer, of course, is that they will not.
The 2017 Adoption UK report that I referred to revealed that the true extent of adopted children who have been excluded from school is being masked because schools are regularly asking adoptive parents to keep their children out of school without recording them as exclusions. Some 12% of parents said their child’s school had advised them that the only way to avoid permanent exclusion was to remove their child voluntarily—generally referred to as a “managed move”. If true, that is shocking. Can the Minister say what he intends to do to address this behaviour by certain head teachers which, if not unlawful, certainly ought to be?
Another means by which adopted children can be induced by head teachers to disappear from school records is through home education—or, more accurately in many such cases, so-called home education. We welcome the recent announcement by the Secretary of State that it will become mandatory not just for all parents taking their children out of school to register that fact but for head teachers to inform local authorities when a child leaves a school register, for whatever reason. Adoption UK found that 12% of adopted children were being home educated. That is appropriate when parents opt for home education as a first choice, often as a conscious contribution to the development of the child whose life they are determined to make as rewarding as possible. But no less than eight out of 10 home-educating adopters said they would prefer their home-educated child to be in school if the right school place were available. Many of these parents have had no training in educating children and are doing so solely because their children have been permanently excluded or off-rolled and no quality alternative provision is available locally.
Yesterday, along with the noble Earl, Lord Listowel, and the noble Lord, Lord Russell of Liverpool, I attended one of the hearings conducted by the All-Party Group for Adoption and Permanence as part of its inquiry into the adoption support fund. I heard some very powerful evidence from both practitioners and parents and, although it is not directly related to this debate, I have to say to the Minister that the view was very clearly articulated that the adoption support fund simply must be continued beyond March 2020, when its funding is due to come to an end. Those giving evidence to the all-party group told us that it would have catastrophic effects if that were not the case.
I understand that the Minister will be unable to do other than repeat the response made by his fellow Minister Nadhim Zahawi, in a Written Answer to my colleague Rachael Maskell MP two weeks ago, that until the spending review has been concluded, the Government are unable to say anything about the future of the adoption support fund. However, the Minister can—and, I believe, should—give a commitment to noble Lords today that he will undertake to make the case in strong terms to Treasury colleagues that the adoption support fund provides essential therapeutic support for children and families and therefore must continue beyond next year.
Finally, the disparity in education provision between children adopted from local authority care in England and those adopted from overseas is stark. This was referred to by my noble friend Lord Triesman and the noble Lord, Lord Storey. Indeed, in December 2017, the Schools Minister Nick Gibb wrote to all school admissions authorities recommending that they give second priority to children who have been adopted from overseas. That represents discrimination involving vulnerable children who are legally adopted by UK citizens. I understand that Mr Gibb had a re-think and has now committed to righting this wrong with new legislation, although given the suffocating blanket of the Government’s attempts to leave the EU, just when overseas adopted children and their parents will finally receive equal treatment is anyone’s guess. What I do not understand is why the Schools Minister cannot simply tell admissions authorities as an interim measure to treat overseas adopted children as they treat domestic adopted children. Can the Minister provide an answer to that?
There appears to be no such change planned in respect of pupil premium plus, which sees £2,300 per year allocated to each domestically adopted child but not those adopted from overseas. Again, why the difference? Must we assume that it is simply the cost? If so, it is unacceptable for the interests of overseas adopted children to be regarded as dispensable in that way. Pupil premium plus should be paid in respect of all adopted children and should be ring-fenced to ensure that it meets the needs for which it is intended.
It is vital that adopted children, wherever they come from, are not hindered by their past and are given hope that they will be able to create a better future for their own children than they themselves experienced. Education is the number one issue for adoptive parents and, as this debate has highlighted, there is much to be done before they will be convinced that the Government are fully on their side in bringing about an educational environment that meets their needs.
The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)
My Lords, I am pleased to answer this Question for Short Debate and thank the noble Lord for raising the important issue of the education of adopted children, including those adopted from care from abroad. We have long recognised that children in care need extra support to succeed in schools. The impact of their pre-care and care experience can often have a lifelong negative impact on their education, health and well-being. In March 2018, 61% of children in care were there because of abuse or neglect, and they were four times as likely to have a special educational need. Children in care have a far higher prevalence of social, emotional and mental health needs than other children with SEN.
The consequences of these experiences and of other risk factors such as foetal alcohol spectrum disorder can emerge over time, particularly at transition points such as adolescence or starting school. Indeed, recent research published by Adoption UK found that 69% of adoptive parents felt that their child’s learning was affected by problems with their emotional well-being at school. Adoption UK’s research also highlighted significant numbers of school changes, as well as high levels of both permanent and fixed-term exclusions. This was recognised by Edward Timpson in his review of exclusions, published last week.
In relation to points about Adoption UK, the noble Lord, Lord Triesman, asked for specific research on the educational outcomes of adopted children. I would certainly be happy to meet Adoption UK to see what viability there might be for that. The noble Lord, Lord Watson, also asked about the Adoption UK report. As he will know, we gave a commitment when accepting all the recommendations of the Timpson review of exclusions to publish new, clearer and more consistent guidance by the summer of next year. We will work with sector experts led by Tom Bennett, the department’s lead adviser on behaviour, and have been absolutely clear in our response that we will include guidance for the first time on the use of managed moves.
We published our latest statistics on adopted children’s education outcomes last week. As in previous years, they confirm that at both key stages 2 and 4, children adopted from care are less likely to reach expected levels of attainment than non-looked-after children, although the differences are less pronounced when factoring in the high prevalence of SEN in this cohort, and they do better than both looked-after children and children in need. But we know that this is not good enough.
We have already done a great deal to address these issues and improve the educational experience. Prior to 2012, despite the recognition and steps that had been taken to improve the education of children in care, little had been done to support those very same children who had left care through adoption. Acknowledging the ongoing vulnerability and level of need, we extended entitlements for looked-after children to previously looked-after children—those who had left care through adoption, special guardianship or a court order. Since 2012 we have: given adopted children the highest priority in school admissions; introduced the pupil premium plus for both looked-after and previously looked-after children, currently set at £2,300 per child; included them in the eligibility for free early learning for disadvantaged two year-olds; made them eligible for the early years pupil premium, currently set at £302 per child; and, since 2015, the Adoption Support Fund has provided more than 40,000 adopted children and their families with therapeutic support. This can prove key to allowing children to succeed in school.
The noble Lord, Lord Triesman, asks for guidance for parents. The DfE has funded PAC-UK, which has published guidance for schools on education of adopted children, and Adoption UK has published guidance. Both documents have been well received.
Concerns have continued about the level of support available for previously looked-after children. That is why in 2017 we introduced new statutory duties in the Children and Social Work Act to extend the roles of virtual school heads and designated teachers for looked-after children to require them to promote the education of previously looked-after children, too. The new duty came into force at the start of the school year, supported by the publication of revised statutory guidance and an additional £7 million per year of funding up to 2020 for virtual school heads. The revised guidance emphasises a whole-school approach to meeting the needs of both looked-after and previously looked-after children. It emphasises the need to work with adoptive parents to secure the best possible educational outcome for their child.
We will continue to work with the sector to understand the effectiveness of these changes. I am pleased to say that we are seeing some innovative practice, making the most of the expertise offered by virtual school heads and the new money, including forming partnerships with regional adoption agencies in both the north of England and on the south coast, and working with the voluntary sector to provide expert advice and information to adoptive families in the Home Counties.
The noble Lord, Lord Russell, asked what analysis the Government have made of how effectively the pupil premium has been used to support adopted children. We have not undertaken specific analysis on the use of the pupil premium. However, in addition to the points made in response to the question of the noble Lord, Lord Triesman, on pupil premium plus, I add that most schools are required to publish an online statement of the use and impact of the pupil premium.
Ofsted has just published its education inspection handbook for September 2019. This sets out how inspectors will gather evidence of the impact of use of the pupil premium and, in response to the question of the noble Lord, Lord Watson, about the role of managed moves and off-rolling, inspectors will consider the impact of the curriculum on previously looked-after children, including those adopted from care. So they will get more focus than is currently the case.
The noble Lord, Lord Triesman, asked how specific financial assistance does not get merged into the general pot of SEN. Our statutory guidance for designated teachers of looked-after children and previously looked-after children sets out how schools should use their pupil premium plus funding for previously looked-after children, including how they should work with adoptive parents to raise awareness of their eligibility for support and in deciding how pupil premium plus funding is used. The guidance sets a clear expectation that designated teachers should be members of the senior leadership team, who will provide challenge and advice to others and work with governors to hold schools to account.
Last week we published our response to the Timpson review of exclusions and have agreed to the recommendation for the department to collate and publish data on exclusions for adopted and other previously looked-after children. The noble Lord, Lord Russell, asked what further steps are being taken to ensure that we continue to improve the collection and scrutiny of data on adopted children’s outcomes. The statistics rely on the self-declaration by adoptive parents. That is why, due to the level of coverage, they, along with education outcomes data, are marked as experimental. We respect the rights of parents to choose whether or not to declare that their child was adopted. We have worked with the sector, including through social media, to encourage parents to declare, and our guidance to designated teachers encourages registration, with teachers required to raise awareness of their entitlements.
I recognise the concerns about support in education for children adopted from care from abroad. When we initially extended support for children in care to those who had left care, our intention was to ensure that children did not face a cliff edge of support when they were adopted. We were aiming to continue the support these children would already have received when in care. That approach meant that children adopted from abroad, who had not been in the care system in this country, did not therefore benefit from these changes. While they are a small proportion of total adoptions each year, these children can face unique challenges.
I will take up the suggestion from the noble Lord, Lord Storey, about issuing further, stronger guidance to local authorities for this vulnerable group. We have given a clear commitment to amend the admissions code to extend priority admissions to children adopted from care overseas. As several noble Lords mentioned, my right honourable friend the Minister for School Standards has written to every admissions authority in the country, asking them to amend their policies to give priority ahead of that formal change.
The noble Lord, Lord Triesman, asked for a champion to be appointed for these children to work alongside the more general champion, due to the distinctive but poorly recognised issues. Our changes in the Children and Social Work Act 2017 made virtual school heads and designated teachers the champions for all previously looked-after children. This is a new responsibility. The duties have been in place for only two school terms. We are working closely with the sector to understand the impact and effectiveness but it is too early to make a judgment. However, we are committed to learning from the experiences from this recent initiative. Introduction of a separate champion for those adopted from care abroad would risk confusion and duplication of roles when virtual schools and designated leaders are increasingly becoming recognised as experts in the field.
The noble Lord also asked us to consider more support for local authorities in this sensitive area. We have established Social Work England and are undertaking a comprehensive programme of social work reform to address these issues, among others. I assure noble Lords that officials are considering application of pupil premium plus to this group of children. In the meantime, it should not prevent schools providing support to children adopted from care abroad by, for example, making use of the extended virtual heads, designated teachers and the revised statutory guidance.
The noble Lords, Lord Triesman and Lord Watson, and the noble Earl, Lord Listowel, all raised similar questions around initial teacher training and continuing professional training, including training on child development and the impact of trauma and attachment orders. The noble Lord, Lord Watson, referred to the empathy gap. The framework of core content for ITT, which we published in 2016, sets out the need for trainees to understand the cognitive, social, emotional, physical and mental health factors that can affect child development. ITT providers are responsible for designing courses to meet the needs of trainees and pupils. Ofsted assesses the quality of ITT and how providers use the framework. In the most recent inspection, 99% of providers were judged good or outstanding.
The early-career framework, launched by the department as part of the teacher recruitment and retention strategy, announced a specific new entitlement for every new teacher to receive enhanced training in behaviour and classroom management in the first two years of their career. Our statutory guidance both for virtual school heads and for designated teachers places emphasis on whole-school awareness, the impact of trauma and attachment disorders and the expertise and training needed by designated teachers. However, we will consider the need for further training and support for attachment and trauma for the children in need review.
The noble Lord, Lord Russell, asked about support for adopters that could complement the work of virtual school heads. We agree that peer support can be invaluable to many adoptive families. The Adoption and Special Guardianship Leadership Board, which advises Ministers on adoption policy, is currently carrying out a review on adoption support. One of the things it is looking at is how we can encourage more local authorities to offer peer support.
The noble Lord also asked about my experience when running an academy chain. One of the things that I did was to insist that we identified all looked-after children in the trust. At the time I was there we had 26. I required a report on their progress to be made available to all our board meetings simply to raise the profile of these very vulnerable children. It was certainly my intent to go further than that but at least I ensured that they were very much the focus of the heads of individual schools.
The debate that we have had today has highlighted the importance of getting the right educational support for adopted children, including those adopted from abroad. The range of actions that I have set out today demonstrates just how seriously the Government take this issue. I very much appreciate the cross-party support that shows that this is not a political issue. We are absolutely determined that these children achieve the very best educational outcomes.