Vol. 750 Tuesday No. 89 17 December 2013

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Social Mobility: Public Schools ...... 1133 Independent Panel on Forestry Report ...... 1135 Ticket Reselling...... 1138 G8 Summit on Dementia...... 1139 Unsolicited Telephone Communications Bill [HL] Third Reading...... 1143 Children and Families Bill Report (2nd Day) ...... 1143 Gambling (Licensing and Advertising) Bill Second Reading ...... 1217

Grand Committee

Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013 Motion to Consider...... GC 255 Smoking: E-cigarettes Question for Short Debate ...... GC 258 EU: Financial Transaction Tax (EUC Report) Question for Short Debate ...... GC 270 Barnett Formula Question for Short Debate ...... GC 286

Written Statements ...... WS 127 Written Answers ...... WA 169

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Baroness Trumpington (Con): My Lords, I ask the House of Lords Minister whether he agrees that this particular Question is a damned silly one. Tuesday, 17 December 2013.

2.30 pm Lord Bates: My Lords, the brief says that there are no damn silly questions in your Lordships’ House. Prayers—read by the Lord Bishop of Derby. Lord Campbell-Savours (Lab): My Lords, the Minister and, indeed, the House and the whole country know Social Mobility: Public Schools that public schools are not charities. Their existence Question and treatment as charities brings charity law into disrepute. Why do we not end that arrangement, and if 2.36 pm we need to subsidise private education—many might well want that; I do not know—transfer responsibility Asked by Lord Lea of Crondall for subsidy from charity law to the Finance Act? Then To ask Her Majesty’s Government what assessment we can have a full debate in Parliament, in the House they have made of the degree to which those educated of Commons when it is dealing with Finance Act at public school disproportionately occupy senior issues, on what that level of subsidy should be. positions in both public and private sectors in the United Kingdom; and whether they have plans to Lord Bates: The noble Lord raises an interesting reduce any imbalance. point which begs the question of why, if that was the key issue to be addressed, his Government did not Lord Bates (Con): My Lords, improving social mobility tackle that over their 13 years. The point is that this is is the principal goal of this Government’s social policy. intergenerational; it stretches over a long time and the The Social Mobility and Child Poverty Commission solutions will take a long time coming. The problems was established to monitor the progress of government have been a long time coming, too, and this Government employers, the professions and universities in improving are focusing particularly on the work of people such social mobility. Current evidence shows that, while as Graham Allen on early intervention in specialising improvements are being made in some areas, there is and targeting the help at the poorer families to redress still much work to be done. that balance.

Lord Lea of Crondall (Lab): My Lords, I thank the Baroness Hussein-Ece (LD): Does the Minister agree Minister for that reply, which I think means no. I have that— two supplementary questions. First, would he not agree with the recent and widely reported observation Baroness Hayter of Kentish Town (Lab): This side, by Sir John Major to the South Norfolk Conservative my Lords. Association on 8 November: “In every sphere of British influence the upper echelons of Baroness Hussein-Ece: Does the Minister agree that power in 2013 are held overwhelmingly by the privately educated until we tackle growing inequalities, we cannot hope or the affluent middle class. To me from my background I find that truly shocking”? to tackle social inequality? When you have a situation in which more than 60% of young black men in this Secondly, would he accept that to give tax relief to public country are unemployed, how on earth are we going to schools as charities is also truly shocking? Charities achieve social mobility? are supposed to be about assistance from the rich to the poor, not from the poor to the rich. Lord Bates: My noble friend raises a very important point, which is that the route back into social mobility Lord Bates: My Lords, I thank the noble Lord for comes through the place of work. That is why we are his question. He quotes Sir John Major; let me offer opening up 1.5 million apprenticeships and why bearing him a quote from Alan Milburn in November. In down on unemployment—it is a fact that we are now responding to criticism about why the previous in the 17th month of falling unemployment among Government had not done more to advance social the young—is so critical to raising the prospects of the mobility under their 13 years in office, he said that it is, young people, as we so want to do. “wrong … to argue this is the consequence of the actions of any one government. Deep-rooted … and flatlining mobility have been decades in the making”. Baroness Hayter of Kentish Town: My Lords, I That is why this Government have introduced the apologise to the noble Baroness, Lady Hussein-Ece. pupil premium, which is targeted at disadvantaged Even where two similarly qualified graduates attended pupils; free childcare; and an increasing number of the same university, what happens afterwards is that apprenticeships. As for the noble Lord’s point about the privately schooled graduate is 8% more likely to charity status, that is for the Charity Commission. Of get a top job than someone from the state schools—even course, it has to demonstrate that there is a public at that stage. What are the Government doing with benefit to that status, and I know that many independent their own recruitment policies to make sure that that schools take that very seriously and forge many sort of unfairness does not appear within the Civil partnerships with schools in the state sector as well. Service? 1135 Social Mobility: Public Schools[LORDS] Independent Panel on Forestry Report 1136

Lord Bates: That is a very good question and I manage the public forest estate, in maintaining forestry know that many people in government—principally expertise in government, in supporting the forestry the Deputy Prime Minister—are focusing on how to sector to improve its economic performance and in make that more accessible through the internship giving greater priority to plant health. A further update programme, through ensuring broader and fairer access report will be published in the new year. I declare an and through the business compact programme, where interest as a woodland owner. more employers are encouraged to sign up and have fairer and more inclusive recruitment policies. It has to be said that it is not just the Government having this Lord Clark of Windermere (Lab): My Lords, I thank problem. It runs right across society and is in the the Minister for his answer. Is he aware that there are media, in corporations, in medicine and in the judiciary, suggestions that the new forestry body will be forced all of which need to act to make sure that their access to sell some of its land almost from its inception? Will policies are as fair as possible to all. he assure the House that that is not the case, and that the Government’s new forestry body will be provided with sufficient finance so that it is not forced into land Lord Elton (Con): My Lords, if, as has been conclusively sales within its first 12 months of existence? demonstrated, the private education system is better than the public one and provides a portal into all sorts of social and economic advantages, surely we should Lord De Mauley: Yes, my Lords. Although the new be trying to get more and more private education, and body will be able to buy and sell land in its role as a more and more people drawn into it from those classes land manager, there are no plans for it to sell any part which are at present excluded. The way to do that is of the estate to raise revenue to support itself. not to cut off the funding but to increase it. Baroness Parminter (LD): Do the Government intend Lord Bates: My noble friend has great knowledge to maintain transitional arrangements so that there and insight in this area—and so do I. In my experience are woodland grants until the introduction of England’s the greatest difference between our leading independent rural development programme in 2015, so that the schools and the inner-city comprehensives, one of Government’s welcome commitment to increase woodland which I attended, is the level of expectations not only cover can actually be achieved? among the teachers or parents but, chiefly, among the pupils themselves as to what they can actually achieve. That is what we need to improve. Lord De Mauley: Yes, my Lords. We have addressed the impact of a gap between rural development Lord Davies of Coity (Lab): My Lords, in 1999 the programmes by encouraging applicants who were previous Government made sure that more than originally considering applying for grants in 2014 to 700 hereditary Lords could no longer sit in this House. bring these forward to 2013. The Forestry Commission Now then, can the Minister tell me how many Peers on is presently considering applications to fund the planting the Conservative Benches came from Eton? of up to 2,600 hectares of woodland in 2014. The current RDP has seen over 12,000 hectares of woodland planted and funded through the English woodland Lord Bates: In this debate, which is about raising grant scheme. Current applications for planting in the opportunities of the poorest in our society, it does 2014 therefore represent an annual planting rate above not help to have a vindictive or negative view of that in the rest of the current programme. people who have had the privilege of great education in this country. We want to ensure that that quality of education and that level of ambition and expectation Lord Hylton (CB): My Lords, I declare my interests are spread to all, irrespective of school attended. as on the register. Is the Minister aware that I have a children’s forest school in one wood and much used public access in another? However, this question is not Independent Panel on Forestry Report just about greenery and fresh air. Do the Government Question accept the report’s point about the economics of our forestry and its supply chain? What resources will they 2.45 pm provide for adding value to British timber, not just using it for firewood and biomass? Asked by Lord Clark of Windermere

To ask Her Majesty’s Government what progress Lord De Mauley: That is an important point. The they have made in implementing the recommendations Grown in Britain initiative is genuinely making a of the report of the Independent Panel on Forestry. difference. Early successes show that it is already delivering results, including gaining commitment from several The Parliamentary Under-Secretary of State, Department major corporates to buy or stock more home-grown for Environment, Food and Rural Affairs (Lord De wood products. To date, 19 major UK contractors-group Mauley) (Con): My Lords, good progress has been companies, with a collective turnover of over £24 billion, made in implementing the commitments set out in have pledged to look into ways of procuring more January in the Government’s forestry and woodlands British timber. Grown in Britain is also forging policy statement. An update report published in July partnerships with businesses in the construction sector highlighted progress in establishing a new body to to seek good examples of projects using British-grown 1137 Independent Panel on Forestry Report[17 DECEMBER 2013] Ticket Reselling 1138 timber to promote as case studies for other forestry Ticket Reselling supply chains to follow. There is a lot going on in that Question sector, and it is important. 2.54 pm Viscount Brookeborough (CB): My Lords, does the Asked by Lord Storey Minister agree that most landowners in this country who have forestry think that it makes a great contribution To ask Her Majesty’s Government what plans to their businesses? Can he explain why state-owned they have to tackle the issue of ticket re-selling in forestry in all parts of the United Kingdom has failed the sport, music and entertainment industries. to make money over so many years? Lord Gardiner of Kimble (Con): My Lords, the Lord De Mauley: My Lords, I agree with the first Government discuss issues of ticket resale with the half of the noble Lord’s question but the Government sport, music and entertainment industries on a regular would not agree with the second half. The Forestry basis. While the Government have no plans to introduce Commission is a dedicated and well run organisation. new regulations on the ticketing and events market, we It has an important function to carry out, and the continue to encourage improvements so that all customers various functions that it carries out will continue to be have an opportunity to purchase tickets and can do so carried out. in a secure environment. The Government believe that it is for event organisers, together with the professional The Lord Bishop of St Albans: My Lords, as Her ticketing organisations, to determine suitable arrangements Majesty’s Government will be aware, there are several for ticket sales to their events. very serious diseases affecting trees in this country. What steps are being taken to ensure that, with the Lord Storey (LD): I thank the Minister for his reply. reorganisation of the responsibilities of the Forestry He will be aware that Operation Podium ensured that Commission, this important disease prevention, control tickets to the Paralympic and Olympic Games were and elimination work will not only continue but be fairly distributed, and were prevented from falling into strengthened? the hands of touts and criminals. He will also be aware that the Met’s operational report concluded that the Lord De Mauley: That is one of my department’s lack of regulation in this area enables fraud and places top four priorities, and we are making rapid progress the public at risk of economic crime. What action will in taking forward the implementation of the the Government take to provide an open, transparent recommendations of the expert task force that the and above all fair market for consumers? Will the Secretary of State set up. In fact, this morning I Minister host a round-table discussion to consider attended our monthly biosecurity meeting and we are how to put an end to this crime? absolutely focused on both those plant health issues that are approaching us from overseas and those that Lord Gardiner of Kimble: My Lords, as the previous are here already. We have established a prioritised plant Government made clear, ticketing regulations for the health risk register, we are appointing a new chief London 2012 Games were exceptional and indeed plant health officer and we are engaged in contingency a mandated requirement of winning the bid. It is a planning, among many other things. matter for the police to address cases of fraud and criminal activity while it is for event organisers, promoters Baroness Royall of Blaisdon (Lab): My Lords, I and their ticket agents to find ticketing solutions; declare an interest as a member of the steering committee indeed, I think that Glastonbury is a very successful of Hands Off Our Forest. Primary legislation is clearly example of that. Of course I would be happy to needed to set up a new management organisation for arrange a meeting with the noble Lord to discuss these the public forest estate. The Forest Campaigns Network matters further. has been told by Defra that Ministers are committed properly to pre-legislative scrutiny, so I would be Lord Clement-Jones (LD): My Lords, abuses by grateful if the Minister could tell the House when we secondary ticketing sellers were made plain by the will see a draft Bill and whether or not it will be in this “Dispatches” programme earlier this year, which my Session of Parliament. Will the Minister also confirm noble friend may have seen. Campaigners for secondary that the organisation’s mission will be to protect and ticketing reform go all the way from rock band Iron improve the public forests, woodland and other assets Maiden to the Rugby Football Union, which is worried held on behalf of the nation and that, however the about the World Cup, and the Society of London organisation is structured, it will not be in danger of Theatre. If we could do it for London 2012, why can future privatisation? we not do it for other events? Are there no heavy metal fans or rugby fans at DCMS, let alone theatre-goers? Lord De Mauley: My Lords, we have always said Is DCMS completely immune to representations from that we will legislate as soon as possible, subject to all these bodies? the availability of parliamentary time. That remains the position and we are serious about it. Yes, we intend Lord Gardiner of Kimble: I am sure the DCMS has to make draft legislation available for pre-legislative aficionados of all those disciplines. Only today, officials scrutiny, but it is important to understand that we were talking to the Rugby World Cup organisers about have also been focusing on making progress on all arrangements for the event. Those will include using 36 commitments, and not all of those need legislation. bar coding, named tickets, staggered ticket release and 1139 Ticket Reselling[LORDS] G8 Summit on Dementia 1140

[LORD GARDINER OF KIMBLE] envoy who will work to attract new sources of finance, reward to fans with a history of support. The Government including examining the potential for a private and are engaged in this matter, but all successive Governments, philanthropic fund. and indeed Select Committees that have looked into this in the past, have concluded that regulation is not Lord Patel (CB): My Lords, I thank the Minister the best way of achieving what we all want to do. for his reply. Dementia is the dreaded diagnosis, particularly for the elderly, as it affects more than 5% Lord West of Spithead (Lab): My Lords, after our of people over 65 and between 20% and 40% of those performance in the past three tests, does the Minister aged over 85. Because of the increasing number of think it will be almost impossible to give away, let elderly people, an increasing number of people are alone resell, tickets for the final two? affected. I commend the Government and congratulate them on taking the initiative at the G8 and particularly on involving the WHO, because now it will become a Lord Gardiner of Kimble: I very much hope that global initiative. I have two questions. The first is England will win the last two matches and make it 3-2. about the funding that the Government announced. The important thing we need to remember is that very There is a great deal of confusion. Is it new money, often people buy tickets and wish to have a secondary money that has already been allocated to research or sale because someone cannot go or their team does money that the Department of Health is giving for not win into the quarter-finals or semi-finals, so there better diagnosis of dementia? Research on dementia are practical difficulties. When a Select Committee must also focus more widely on understanding the looked at this in detail, it concluded that regulation biology of the disease, the inflammatory process and was not the way to achieve what we want. the epidemiology. Ring-fencing around a disease will not necessarily get to the point that the Government wish to get to. Secondly, what impact do the Government Lord Stevenson of Balmacara (Lab): I return to the think the EU regulation on data protection will have original Question. The report from Operation Podium on dementia research? makes it very clear that ticket crime has links to other serious and organised crimes, that criminal networks benefit from ticket fraud by about £40 million per year Earl Howe: The noble Lord asked a number of and that the proceeds are very rarely recovered. Given questions. The Government have stated an ambition that the recommendation from Operation Podium was to double research funding in dementia. That will that consideration must be given to introducing legislation depend on the quality of the proposals that come to govern the unauthorised sale of event tickets, why forward and on the rate of scientific progress. We very are the Government not prepared to move on this? much hope that arising out of the summit, momentum will be gained, not only in this country but internationally. As regards the noble Lord’s second question, we recognise Lord Gardiner of Kimble: My Lords, it is not a case how important this is for future dementia research of the Government not wanting to move on the situation; and I can tell him that the Government, through the it is that we have concluded, as did the previous Ministry of Justice, are negotiating with member states Government and Select Committees, that there is a in Europe and are aware of the impact that the proposal better way of resolving this. The noble Lord mentioned would have on research. It is likely to be some months fraud, but the Fraud Act 2006 is readily available. before there is an agreed approach between member Local authorities have by-laws already in existence, states and the Commission, and the Parliament is and those are precisely the by-laws that we need event unlikely to vote on the proposal before 2015. organisers and the police to work within in conjunction with local authorities. Lord Warner (Lab): The Minister will no doubt be aware that there is growing interest in this country in assessing whether drugs used for conditions other G8 Summit on Dementia than dementia might be useful in tackling dementia. Question Will the Minister say what efforts the Government are going to put into this area as a result of the G8 summit? 2.57 pm Earl Howe: My Lords, we certainly hope that the Asked by Lord Patel private and charitable sectors will respond to the call, but at the same time the Government are not dictating To ask Her Majesty’s Government what was the to the research funding bodies which projects they outcome of the G8 dementia summit. should support. The Haldane principle is very important. The noble Lord makes an extremely powerful point, The Parliamentary Under-Secretary of State, Department and we would hope that the pharmaceutical companies of Health (Earl Howe) (Con): My Lords, the G8 agreed will wish to step up to the plate. to work together to tackle and defeat dementia. The declaration announced the G8’s ambition to identify a Baroness Hanham (Con): My Lords, will the Minister cure or a disease-modifying therapy by 2025 and to be kind enough to explain exactly what is going to be increase collectively and significantly the amount of achieved by training public servants such as bus drivers funding for dementia research. The G8 also welcomed in dementia, what is the purpose behind it and what the UK’s decision to appoint a dementia innovation we hope those public servants will be able to do? 1141 G8 Summit on Dementia[17 DECEMBER 2013] Business 1142

Earl Howe: My noble friend raises an important parts of the health and care system. We want all staff issue, because it is going to be increasingly necessary who care for people with dementia to be trained to the for not only health and care professionals but members level of their engagement so as to deliver high-quality of the public to be properly attuned to dementia and care for people with dementia. I mentioned that dementia the needs of those who have the condition. We want training was a key part of Health Education England’s to see all those who deal with the public trained in mandate. Already, 100,000 NHS staff have received dementia, at least to a basic level, in a way that is dementia training. As my noble friend will know, appropriate to their level of engagement with those decisions on the commissioning of admiral nurses are who suffer from dementia. Dementia training is now a made locally, but I recognise the work that they do. key part of Health Education England’s mandate. Lord Walton of Detchant (CB): My Lords— Baroness Greengross (CB): My Lords, I would like to add my congratulations to the Government, and in Lord Davies of Stamford (Lab): My Lords— particular to the Prime Minister on his personal commitment and on securing the summit focusing on dementia. I ask the Minister whether there are any Lord Walton of Detchant: Does the Minister accept commitments from other G8 countries, both for research that much of the increased incidence of dementia is a and for the other side of this, which is care and how we result of the fact that many of us are living much help the growing number of people—it will be one in longer than was the case in the past? Does he further three of us in the near future—who are going to agree that there is clear research evidence to suggest experience dementia, in all the G8 countries and beyond. that continuing intellectual and physical activity, care and attention to diet, and control of blood pressure Earl Howe: My Lords, it is perhaps too soon to can delay the onset of dementia in many individuals, expect concrete proposals from other G8 countries, and that, as a consequence, once early dementia appears, but I can tell the noble Baroness that the summit was programmes to promote such physical and intellectual not the end of the story. The G8 countries will be activity are very valuable? In such programmes, volunteers meeting throughout 2014 to build on and develop play a very important part across the country. What further agreements. We have agreed to host the first are the Government doing to promote these projects? legacy event on social-impact investment in March next year. That will be followed by an event in Japan Earl Howe: The noble Lord, as ever, makes some on what new care and prevention models could look extremely good points. My department is looking at like, and by an event hosted by Canada and France on the role of volunteers in a number of areas. He is right how industry can harness academic research. There that increased age is the greatest predictor of dementia. will then be a meeting in the United States in February It has been estimated that delaying the onset of dementia 2015. We hope that the momentum generated by the by two years could decrease the global disease burden summit will elicit the kind of commitments that the by 22.8 million cases by 2050. The point that the noble noble Baroness rightly seeks. Lord makes is therefore well made, and I have no doubt that there will be an increasing focus on this Lord Foulkes of Cumnock (Lab): Is the Minister over the coming years. aware that after the very brief exchange about dementia yesterday, I heard it suggested that dementia should not be grouped in any way with mental illness because Business of the stigma involved? Surely the solution to that is that we must all work to remove any stigma from all 3.07 pm kinds of mental illness. The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, like me, noble Earl Howe: The noble Lord is absolutely right, but Lords will have been completely dismayed to read the he will recall that the question yesterday dealt with the reports in the press this morning about the behaviour WISH summit, which was focused specifically on mental of a Member of our House. They will have been health and not on dementia. I did not mean to imply dismayed about the behaviour and dismayed about that there should be any less emphasis on tackling the shadow that it casts over the whole House. On stigma in both areas. behalf of the party leaders and the Convenor, whose collective views I know I reflect, I thought that I Baroness Brinton (LD): My Lords, I, too, welcome should briefly remind the House of steps that are the result of the G8 dementia summit, but what progress already in train for us to deal with the small number of is being made in appointing nurses who specialise in Members whose behaviour falls below the standards dementia in the same way that there are nurse specialists that we rightly expect. for cancer, rheumatology and epilepsy? Dementia UK’s First, I have recently taken proposals through the admiral nurses are wonderful and provide real help to House Committee to adopt a new sanction which patients and families, but there are a mere 103 for an would in future enable us to withdraw financial support estimated population of 800,000 dementia patients. and access to facilities from Members who breach the Code of Conduct. This would enable us to broaden Earl Howe: My noble friend raises a very important our range of sanctions and I hope that it will be point. I come back to the point that I made a short welcomed when it comes before the House in the new while ago: people with dementia in practice access all year. Secondly, a Private Member’s Bill being brought 1143 Business[LORDS] Children and Families Bill 1144

[LORD HILL OF OAREFORD] The department has issued excellent guidance for forward by Dan Byles MP would enable us to expel those who choose to read it. I have no concern about permanently Members who commit a serious criminal the courts, judges and magistrates doing their best offence. The Government support this Bill and I look with litigants in person, in the absence of legal aid, to forward to it making progress. Thirdly, it is my view come to the least detrimental decision about the and one that I know is shared by all the group leaders arrangements for the children. Most parents will be that we should be looking to amend our Code of sensible about arrangements. However, there is a small Conduct to make it possible for us to have more percentage of parents—sometimes one parent, male discretion to take action against those who in future or female, and sometimes both parents—who are utterly bring the House into disrepute. unreasonable, and no arrangements will be easy to Despite stories like today’s, I am extremely proud of achieve; sometimes it will be impossible to achieve any the work that we do in this Chamber of legislating, arrangements. scrutinising and holding the Government to account. The groups of parents whom I worry about in For our part, the leaders will take forward in the new relation to Clause 11 are those who try to settle the year the steps that I have outlined, but, ultimately, the arrangements for the children without going to court. reputation of this House rests in all our hands, which In the absence of lawyers to advise either side, the is why I believe that noble Lords will want to support stronger, more dominant parent may insist on an steps to strengthen the sanctions available to us next arrangement based on equality, or at least on year. disproportion which is not appropriate for the welfare of the children. We know from the Norgrove report of Unsolicited Telephone Communications the fine line between children at risk in the private law sector and those seriously at risk in public law. The Bill [HL] parents of some of those children at risk may well Third Reading make their decisions outside court. I want the weaker parent to have something in statute to hold on to if 3.09 pm browbeaten. Bill passed and sent to the Commons. I also worry about those who would go to court with an erroneous view of what this clause actually Children and Families Bill means, and with an inbuilt sense of their rights rather Report (2nd Day) than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause 3.10 pm and to help the public come to terms with putting the welfare of their children first. I beg to move. Clause 11: Welfare of the child: parental involvement 3.15 pm Amendment 14 Baroness Howarth of Breckland (CB): My Lords, I Moved by Baroness Butler-Sloss support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. As she said, we 14: Clause 11, page 11, line 5, at end insert— all know that when parents are in conflict they become “(2B) Involvement is any kind of direct or indirect involvement engrossed in their own battle and lose sight of everything that promotes the welfare of the child; it shall not be taken to mean any particular division of a child’s time.” else of value, including the children. I apologise for my voice; I have just had the flu and therefore missed the Baroness Butler-Sloss (CB): My Lords, it is with first day on Report—some noble Lords will have been some regret that I have not sought to remove the relieved about that. presumption from the wording of Clause 11, although I have talked to many children over the years, I still think it is unfortunate. I recognise the good through my work at Childline and CAFCASS, who intentions of the Government and their genuine desire found themselves in that situation. They often feel that to involve both parents, and more often the father, in a they are at the centre of that battle and not individuals continuing relationship with the children after the themselves. I remember another famous quote that the separation of the parents. I entirely support that important noble and learned Baroness, made at another time: we aspiration. A serious part of the parting of parents is should never see children as objects of concern but as the failure of one parent, often the father, to have any subjects in their own right. When parents haggle over future relationship with his children, who are then children as property, it is our responsibility to ensure brought up in a one-parent family without the advantages that their welfare is seen to. What has happened in the of knowledge of and support by the absent parent. outside world is that in our attempt to focus, mainly I am, however, concerned about the message that on fathers, I have to say—there is not a balance separating parents may receive from the current wording between mothers and fathers, but a particular focus on of Clause 11. Originally the heading for this clause the needs of fathers—we have lost some of that was “Shared parenting”. That heading, thank goodness, understanding of welfare, and the press really believe was removed, but it had been picked up by the press, that fathers have had a bad deal. and this clause may be seen by some as containing the I draw attention to a piece of research that was right to equal access to children. There is concern, not carried out recently by the University of Warwick just on my part but on that of many of the agencies, under the auspices of the Nuffield Foundation. It including the NSPCC, Barnardo’s and Coram. looked at a large number of cases—197 were analysed— 1145 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1146 and determined how the county courts used a number child’s welfare, as enshrined in the Children Act 1989, of orders. It found that in contact orders, cannot be fully met unless both parents are fully “the courts are actively promoting involvement with the non-resident involved in the child’s life and have a continuing parent under the welfare paramountcy principle without the need relationship with the child. Perhaps slightly differently for any further additional legislation. In 50% of all parental to the noble Baroness, Lady Deech, I think that there disputes studied, the post court care arrangement included regular, is an issue to be addressed here, particularly for fathers. overnight contact allowing both parents to have involvement in I agree with the Government that the principle of the child’s day to day routine. 25% of cases ended in daytime only contact with the non-resident parent. Contact is often built up parental involvement needs strengthening. gradually by the courts using interim orders. This allows the However, if we agree—as I think we all do—that courts to find an arrangement that works for the parent and the the paramount consideration is the welfare of the child, children”. and that this principle should not be jeopardised or However, as the noble and learned Baroness, Lady diluted, then we must also ensure that the presumption Butler-Sloss, pointed, out, our great concern is for the in Clause 11 is not misinterpreted and applied in ways families who do not go to court. Courts will often find that can be detrimental to children. Specifically, Clause 11 a good solution and be able to work through it. must not send the signal that parental involvement, However, there is sometimes a perception among families which regrettably the Government initially called “shared that there is a presumption that children will be shared. parental responsibility”, is taken to mean that the I sometimes think of that picture from the Old Testament child is divided according to some a priori formula, of the child being held up by one leg with the sword of whether that is 50-50 or something else. Clause 11 Damocles held over it; it was the good parent who gives a right to the child to expect continued meaningful said, “No, I don’t want my child to be shared”. That is involvement by both parents after separation. It must often what you find: it is the good parent who gives in not be interpreted as giving a right to both parents for and gives the child to the other parent, because they equal—or near equal—time with the child as possible. want the best for their child. It is therefore on that I know that the Government’s Explanatory Notes basis—and before my voice gives out—that I support make clear their intentions. But there are a number of the noble and learned Baroness’s amendment. reasons why the Minister must take seriously the possibility, indeed the likelihood, of such misinterpretation. Baroness Deech (CB): My Lords, I will speak briefly First, the experience in Australia is that 65% of in support of the noble and learned Baroness, Lady fathers interpreted “shared parental responsibility” to Butler-Sloss, who knows more about children’s law mean equal time. Litigation between parents increased than practically anyone in this House. There is one as a result, and they had to change the system. Secondly, real problem after divorce, which is that fathers, for as touched on by the noble and learned Baroness, whom the door is open, do not come and visit their Lady Butler-Sloss, and the noble Baroness, Lady Howarth: children. We cannot do anything much about that. the clause, unless it is qualified on the face of the Bill The clause may give such absent fathers the notion in the way that this amendment seeks, could inadvertently that they have rights but no responsibilities. If there is increase the risk of harm to children, because only one thing that our family courts have got right in 10% of separating couples resort to the courts to recent years, it is the welfare of the child. I very much resolve their contact disputes, with the majority of hope that the House will listen to the wisdom of the parents reaching agreements privately. There is concern noble and learned Baroness, Lady Butler-Sloss, and that if it is the expectation of those parents that the will let the courts get on with the good job that they law now says that the child’s time has to be carved up, have been doing without resorting to a rather artificial then some parents may seek to use the new changes as notion as set out in the clause as it stands. a bargaining tool and put pressure on the other parent into making contact arrangements which are not in the best interests of the child. Baroness Hughes of Stretford (Lab): My Lords, I, too, support the amendment in the name of the noble Again, evidence from Australia suggests that similar and learned Baroness, Lady Butler-Sloss, to which I reforms resulted in an increased reluctance for mothers have added my name. We had a very good debate in to disclose abuse, for example, with many feeling that Committee on Clause 11 about the status of the if there is a legal presumption of shared contact, there presumption that is enshrined in that clause. Concerns was little point in disclosing problems in the family. about preserving the overriding status of the presumption Given that the vast majority of cases do not go to of the best interests of the child in the Children Act court, if as a result of Clause 11 there is a common have been largely assuaged. perception that having the child’s time shared out will By definition it is very difficult for both parents and be the norm in future, then even in families where children when a family breaks up, and as the noble there is no abuse or there are not problems we may still Baroness, Lady Howarth, has underlined, things can see the unintended consequence of nomadic arrangements, get very heated and parents can get very focused on with a child moving between homes in a way that we coming out of that conflict with what they regard as would all want to avoid for obvious reasons. This the best arrangements for them. would not be in the interests of most children. As I made clear in Committee, I start from the Finally, and very significantly, we have to respond position of sharing the Government’s desire to enshrine strongly to those parts of the media, which have in public policy the principle of joint parental involvement promoted the interpretation which we are discussing in a child’s life, including after separation. I argue that now, despite the best efforts of the Government. I do for most children, the paramount principle of the not believe that any amount of communication or 1147 Children and Families Bill[LORDS] Children and Families Bill 1148

[BARONESS HUGHES OF STRETFORD] cause the least possible damage to their children’s lives clarification can shift this now. This is why Amendment 14 while they do so. I very much look forward to my is so necessary—the Government’s intention and noble friend’s reply. interpretation would be quite clearly on the face of the Bill, and enshrined not in guidance but in law. The Minister of State, Ministry of Justice (Lord Last night we received a policy statement from the McNally) (LD): My Lords, I am very pleased to follow Government about Clause 11 and Amendment 14. my noble friend in this debate, not least because well This makes clear the Government’s intentions—it is over two years ago, when this legislation was first not to promote a particular division of time, but they mooted, I went to see her as the oracle on matters to feel that the most effective way of dealing with this is do with the welfare of children. I said that the Government through a wider communication strategy to explain to were thinking of legislating in this area, and I remember parents what the interpretation is. This is wholly that she gave me very clear marching orders—whatever inadequate, for the reason I have just expressed; this else the Government did, it must be clear that the view is already well entrenched, partly because of the paramountcy of the welfare of the child should be initial nomenclature of shared parental responsibility ingrained in this legislation. I have certainly taken that and partly because parts of the media have triumphantly to heart as this legislation has passed through. proclaimed that this means an equal proportion of the It is also true, as has been indicated and as the child’s time is to be spent with father and mother. That noble Baroness, Lady Hughes of Stretford, referred view is now so well entrenched that I am very concerned to, that we learnt lessons from the Australian legislation about the impact on expectations and, therefore, on and we have listened to what has been said as this Bill negotiations between parents, particularly those not has moved through both Houses. We have been trying going to court. The most emphatic and unambiguous consciously to get the balance right. When we were way of disabusing people of that false impression is to talking about the misrepresentation in the press, there put the amendment alongside Clause 11 into the Bill. was an opinion that the legislation as it stood was The Government will then have something in law that biased in favour of the mother. What we have been they can go to town about in communications, explaining trying to do in this legislation is to have wording that Amendment 14 if it became part of the Bill. gives a very clear guide that, where possible, and as my noble friend Lady Walmsley has just indicated, it is Baroness Walmsley (LD): My Lords, I believe that in the interests of the welfare of the child that both there is only one a priori formula, as the noble Baroness parents should be involved. puts it, that we should have in our mind today, and that is the UN Convention on the Rights of the Child, 3.30 pm which gives children the right to be safe and protected I would like to make a very clear statement for the and the right to a family life. We all agree that that official record of the House that this change is absolutely right to a family life, where it is in the child’s best not about any particular division of a child’s time. The interests and safe to do so, should include an ongoing Explanatory Notes to the Bill state explicitly that: relationship with both parents. Unfortunately, in many “It is not the purpose of this amendment to promote the equal cases the parents themselves feel that they cannot division of a child’s time between separated parents”. continue to do that within the same home, so they The Government have made this very clear in previous separate. I believe that it is the Government’s intention debates. There is nothing in this clause that could be in this clause to give the child that right back and read to give that impression. I fully accept that separating ensure that the child continues to have a relationship parents, particularly at a time of great emotional with both parents where it is safe to do so and in the stress, are hardly going to consult Hansard or the child’s best interests. relevant clause of a parliamentary Bill. I therefore Governments make their intentions clear in more accept that my noble friend is right; the media have a than one way. The wording of legislation is one thing, responsibility to report the intentions of this Bill but Pepper v Hart is another. I am hoping that, in his properly and not to present it in a way that would give reply, my noble friend the Minister will make it very either parent a belief that this is equal-time parenting clear that what the media have been saying is not the or anything else. It is still an attempt to encourage Government’s intention. Indeed, my noble friend has both parents to be involved in the future of their made that very clear to probably all of us in this children, but in a way that safeguards the welfare of Chamber now in private meetings, but of course it has those children. As noble Lords know, part of the aim to go on the record for people to be able to rely on it, of this policy is to address this perception that the and I am very much hoping that he will be able to do courts are biased against one parent, generally fathers. that. The noble Baroness, Lady Hughes, mentioned the Baroness Howarth of Breckland: I apologise for media. I call on the media—indeed, I challenge them—to interrupting but, just so that the record is absolutely give just as much space and just as large headlines straight, the Minister has mentioned on two occasions after today’s debate to the Government’s real intentions the perception that fathers were not getting the same on what this legislation and any surrounding regulations sort of attention as mothers. Does he acknowledge really mean, rather than what they mistakenly thought that the research carried out by CAFCASS and by that they meant, which caused an awful lot of concern Nuffield shows that that is a perception and not an and worry to families who can really do without that accurate procedure? If the noble Lord continues to sort of worry when they are going through the stress repeat that perception, it will be picked up again. It is of breaking up and wondering what they can do to not a fact. 1149 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1150

Lord McNally: I hope that the noble Baroness The way to ensure an accurate understanding takes what she has said to heart; what I am trying to of the policy is for the Government to work with avoid is replacing one perception with another. There organisations in the sector to develop clear information is equal danger that, after a debate such as this, which can be disseminated through these routes, not another perception gets flagged. What I want is to to reword the clause in an attempt to prevent inaccurate emphasise what is in the legislation and what is intended reporting of what we want to achieve. Officials have by the legislation and to use all the means at our already begun discussions about the information to be disposal to make sure that that is fully understood by developed and these will continue. We want to work all the agencies involved and the widest range of with relevant voluntary organisations so that we are public opinion as possible. As my noble friend has confident that we can address the concerns. indicated, that also means that there is a certain sense Right from the beginning I have never been in any of responsibility on the part of the media in reporting doubt about the intentions of the various—in this the intentions of Parliament. case—noble Baronesses who have contributed to this debate. However, it is a matter of judgment, and I am When a case is before the court, neither parent has asking for the House’s support this afternoon for the a right to any specific level of contact, direct or Government’s position. I have thought long and hard otherwise. The court must consider the child’s welfare about how we can address the problems of misperception above all else and make its decision on that basis, and misrepresentation, and I honestly believe that the weighing up the evidence before it. That will continue solution put forward by the noble and learned Baroness, to be the case, and nothing in Clause 11 changes that. Lady Butler-Sloss, may lead us into the same problems The wording of the clause is deliberately neutral; it but via a different route. We have tried very hard to get does not seek to pre-empt court decisions and, as now, the balance right and, even at this late stage, I ask her it gives courts the flexibility to determine the arrangements to withdraw her amendment. that they believe are best for the child, taking account of all the evidence before them. We think that that is the right approach. Baroness Butler-Sloss: I thank all noble Baronesses for their contributions and I hope that the Minister However, I agree wholeheartedly with those who will forgive me for not thanking him. I am particularly have highlighted the need for a clear understanding grateful to my noble friend Lady Howarth, who has of the policy. The reality is that any provision which put right the perception that in some way the courts impacts on parents and their private family relationships are unfair to fathers. It is a perception which has, from is extremely sensitive. Even the wording of the amendment the beginning, been inaccurate. When I was President could be misinterpreted in the media and give rise to of the Family Division, I went round the courts and unintended consequences. There is no guarantee that made a lot of inquiries. After I had retired, I was very it would not. For example, as I said, a parent who grateful for the CAFCASS report, which absolutely already has very limited contact through no fault of clarified what I had understood to be the case from their own may interpret the wording as endorsing that judges right across the country—that they try cases position. Our priority must be to draft legislation fairly and that there is no prejudice against fathers. which achieves our intended effect and to take other I find it difficult to understand why the Minister steps to communicate to society more widely what that thinks that what I think is a very modest amendment effect is. As I said, it is unlikely that separating couples for clarification is going to be widely misinterpreted will look to the Children Act 1989 to try to predict the and somehow bring back the situation before Clause 11 outcome of their dispute. They will look for information was put forward. I take issue with him on one point. online or talk to their friends and family, to organisations He talks about going to legal advisers. How many which they trust or their legal advisers. people in this country have the money to go to legal The Government’s “Sorting out separation” web advisers if they do not have legal aid? It is this Government app will be the first port of call for many parents who have taken legal aid away from private law cases. looking for information about any aspect of separation When he talks about going to legal advisers, it will be a and it will then signpost them to further sources of very small minority of that very small minority who help. The app itself will set out clear information for actually fight cases who will get to lawyers at all. They parents about the law, and this information will make may or may not go on the web and they may or may it plain that the change is not intended to be about the not read what I consider to be the excellent advice that division of the child’s time. We will also ensure that the Government give. They will look at what the press organisations with the Help and Support for Separated has said and, despite the wonderfully impassioned Families kitemark have clear and accurate information suggestion of the noble Baroness, Lady Walmsley, about the changes. The web app will be embedded on may or may not choose to take any interest in this the sites of organisations that have this kitemark, particular debate, and may perpetuate a very dangerous including, for example, Relate. This means that people perception. accessing these websites will be able to click on a link I must say that I worry about ordinary people on and access information on the web app. In addition, the ground who cannot get on and decide to separate. the minority of separating parents who turn to the I sometimes used to say to warring parents, “You are courts will need, first, to have attended a MIAM, and the last people who should be making decisions about they will be encouraged to find a different way of your own children because you cannot think straight resolving their dispute. Parents will be given information about what is happening next”. Those are people—without through all these routes and through other services legal advice, lawyers in court or probably ever going that they may engage with. to court—where one of them will be dominating the 1151 Children and Families Bill[LORDS] Children and Families Bill 1152

[BARONESS BUTLER-SLOSS] Howarth of Breckland, B. Pitkeathley, B. other and the arrangements for the children will be Howe of Idlicote, B. Plant of Highfield, L. unsatisfactory and, in some cases, positively dangerous. Howells of St Davids, B. Prescott, L. Hoyle, L. All I am asking for is some clarification, particularly Prosser, B. Hughes of Stretford, B. Quin, B. for a mother because there may well be a more dominant Hughes of Woodside, L. Quirk, L. father, although there can be a dominant mother. I Hunt of Kings Heath, L. Radice, L. have certainly seen dominant mothers and not only in Irvine of Lairg, L. Ramsay of Cartvale, B. the American press. It is possible that the mother or Jay of Paddington, B. Ramsbotham, L. Jones of Whitchurch, B. Reid of Cardowan, L. father who is not the dominant parent will look at the Jones, L. Rendell of Babergh, B. law and see that there is an explanation of what is in Jordan, L. Clause 11 with this amendment. Judd, L. Richard, L. Rogan, L. I am truly sad that the Minister thinks that that will Judge, L. Kakkar, L. Rooker, L. create some misinterpretation. Speaking for myself, I Kennedy of Southwark, L. Rosser, L. cannot see it and I rather hope that noble Lords will Kerr of Kinlochard, L. Rowe-Beddoe, L. not see it either. I would like to test the opinion of Kilclooney, L. Rowlands, L. the House. Kinnock of Holyhead, B. Royall of Blaisdon, B. Kinnock, L. St Albans, Bp. Knight of Weymouth, L. St John of Bletso, L. 3.42 pm Krebs, L. Sandwich, E. Laming, L. Scotland of Asthal, B. Division on Amendment 14 Lane-Fox of Soho, B. Scott of Foscote, L. Lawrence of Clarendon, B. Sherlock, B. Layard, L. Simon, V. Contents 225; Not-Contents 221. Lea of Crondall, L. Singh of Wimbledon, L. Liddle, L. Slim, V. Amendment 14 agreed. Lipsey, L. Smith of Basildon, B. Lister of Burtersett, B. Smith of Finsbury, L. Division No. 1 Lloyd of Berwick, L. Soley, L. Luce, L. Stair, E. Lytton, E. Stern, B. CONTENTS McAvoy, L. Stevens of Kirkwhelpington, Aberdare, L. Derby, Bp. McConnell of Glenscorrodale, L. Adams of Craigielea, B. Donaghy, B. L. Stevenson of Balmacara, L. Ahmed, L. Donoughue, L. McDonagh, B. Steyn, L. Allen of Kensington, L. Drake, B. Macdonald of Tradeston, L. Stirrup, L. Anderson of Swansea, L. Dubs, L. McFall of Alcluith, L. Stoddart of Swindon, L. Armstrong of Hill Top, B. Eames, L. McIntosh of Hudnall, B. Stone of Blackheath, L. Armstrong of Ilminster, L. Elder, L. MacKenzie of Culkein, L. Symons of Vernham Dean, B. Bach, L. Elystan-Morgan, L. McKenzie of Luton, L. Taylor of Blackburn, L. Bakewell, B. Erroll, E. Mandelson, L. Taylor of Bolton, B. Bassam of Brighton, L. Evans of Parkside, L. Martin of Springburn, L. Temple-Morris, L. Beecham, L. Evans of Temple Guiting, L. Masham of Ilton, B. Thornton, B. Best, L. Evans of Watford, L. Maxton, L. Tomlinson, L. Bichard, L. Falkland, V. May of Oxford, L. Triesman, L. Billingham, B. Farrington of Ribbleton, B. Mendelsohn, L. Tunnicliffe, L. Blackstone, B. Fellowes, L. Mitchell, L. Turnberg, L. Blood, B. Foster of Bishop Auckland, L. Monks, L. Turner of Camden, B. Boateng, L. Foulkes of Cumnock, L. Moonie, L. Uddin, B. Borrie, L. Gale, B. Moran, L. Walker of Gestingthorpe, L. Bradley, L. Gibson of Market Rasen, B. Morgan of Ely, B. Wall of New Barnet, B. Brookman, L. Glasman, L. Morris of Aberavon, L. Walpole, L. Brown of Eaton-under- Goudie, B. Morris of Handsworth, L. Walton of Detchant, L. Heywood, L. Gould of Potternewton, B. Murphy, B. Warner, L. Browne of Ladyton, L. Graham of Edmonton, L. Nicholson of Winterbourne, Warnock, B. Butler of Brockwell, L. Grantchester, L. B. Warwick of Undercliffe, B. Butler-Sloss, B. [Teller] Greenway, L. Northbourne, L. Wheeler, B. Cameron of Dillington, L. Grenfell, L. Norwich, Bp. Whitaker, B. Campbell-Savours, L. Griffiths of Burry Port, L. Nye, B. Whitty, L. Carter of Coles, L. Grocott, L. O’Loan, B. Wigley, L. Christopher, L. Hannay of Chiswick, L. O’Neill of Bengarve, B. Wilkins, B. Clancarty, E. Hanworth, V. Ouseley, L. Williams of Baglan, L. Clark of Windermere, L. Hardie, L. Palmer, L. Williams of Elvel, L. Clarke of Hampstead, L. Harries of Pentregarth, L. Parekh, L. Wilson of Tillyorn, L. Clinton-Davis, L. Harrison, L. Patel of Blackburn, L. Wood of Anfield, L. Cobbold, L. Hart of Chilton, L. Patel of Bradford, L. Woolf, L. Collins of Highbury, L. Haskins, L. Patel, L. [Teller] Woolmer of Leeds, L. Condon, L. Haworth, L. Pendry, L. Wright of Richmond, L. Crawley, B. Hayman, B. Phillips of Worth Matravers, Young of Hornsey, B. Cunningham of Felling, L. Hayter of Kentish Town, B. L. Young of Norwood Green, L. Davies of Coity, L. Healy of Primrose Hill, B. Davies of Oldham, L. Henig, B. NOT CONTENTS Davies of Stamford, L. Hennessy of Nympsfield, L. Dean of Thornton-le-Fylde, Hilton of Eggardon, B. Addington, L. Anelay of St Johns, B. [Teller] B. Hollis of Heigham, B. Ahmad of Wimbledon, L. Deech, B. Hope of Craighead, L. Alderdice, L. Arran, E. 1153 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1154

Ashdown of Norton-sub- Grade of Yarmouth, L. Northbrook, L. Steel of Aikwood, L. Hamdon, L. Greaves, L. Northover, B. Stephen, L. Ashton of Hyde, L. Green of Hurstpierpoint, L. Norton of Louth, L. Stewartby, L. Astor of Hever, L. Grender, B. Oakeshott of Seagrove Bay, L. Storey, L. Astor, V. Griffiths of Fforestfach, L. Oppenheim-Barnes, B. Stowell of Beeston, B. Attlee, E. [Teller] Hamilton of Epsom, L. Paddick, L. Strathclyde, L. Avebury, L. Hamwee, B. Palmer of Childs Hill, L. Suttie, B. Baker of Dorking, L. Hanham, B. Parminter, B. Swinfen, L. Bakewell of Hardington Harris of Richmond, B. Perry of Southwark, B. Taylor of Goss Moor, L. Mandeville, B. Henley, L. Popat, L. Taylor of Holbeach, L. Balfe, L. Heyhoe Flint, B. Purvis of Tweed, L. Taylor of Warwick, L. Bates, L. Higgins, L. Randerson, B. Thomas of Gresford, L. Bell, L. Hill of Oareford, L. Razzall, L. Thomas of Winchester, B. Benjamin, B. Hodgson of Abinger, B. Redesdale, L. Tonge, B. Black of Brentwood, L. Hodgson of Astley Abbotts, Rennard, L. Trefgarne, L. Blencathra, L. L. Ridley, V. Trimble, L. Bonham-Carter of Yarnbury, Holmes of Richmond, L. Risby, L. Trumpington, B. B. Hooper, B. Roberts of Llandudno, L. Tugendhat, L. Borwick, L. Horam, L. Roper, L. Tyler of Enfield, B. Bowness, L. Howard of Rising, L. Ryder of Wensum, L. Tyler, L. Brabazon of Tara, L. Howe of Aberavon, L. Sassoon, L. Ullswater, V. Bradshaw, L. Howe, E. Seccombe, B. Verjee, L. Brinton, B. Howell of Guildford, L. Selborne, E. Verma, B. Brooke of Sutton Mandeville, Hunt of Wirral, L. Selkirk of Douglas, L. Wakeham, L. L. Hussain, L. Selsdon, L. Waldegrave of North Hill, L. Brookeborough, V. Hussein-Ece, B. Sharkey, L. Wallace of Tankerness, L. Brougham and Vaux, L. Inglewood, L. Sharp of Guildford, B. Walmsley, B. Browning, B. James of Blackheath, L. Sheikh, L. Warsi, B. Buscombe, B. Jenkin of Kennington, B. Shephard of Northwold, B. Wasserman, L. Caithness, E. Jenkin of Roding, L. Sherbourne of Didsbury, L. Wheatcroft, B. Cathcart, E. Jolly, B. Shipley, L. Williams of Trafford, B. Cavendish of Furness, L. Jones of Cheltenham, L. Shrewsbury, E. Willis of Knaresborough, L. Chalker of Wallasey, B. King of Bridgwater, L. Shutt of Greetland, L. Wrigglesworth, L. Chidgey, L. Kirkwood of Kirkhope, L. Spicer, L. Younger of Leckie, V. Clement-Jones, L. Knight of Collingtree, B. Colwyn, L. Kramer, B. 3.57 pm Cope of Berkeley, L. Lang of Monkton, L. Cormack, L. Lawson of Blaby, L. Courtown, E. Lee of Trafford, L. Amendment 15 Crickhowell, L. Leigh of Hurley, L. Moved by Lord Northbourne Curry of Kirkharle, L. Lester of Herne Hill, L. De Mauley, L. Lexden, L. 15: After Clause 11, insert the following new Clause— Dear, L. Lindsay, E. “Children’s welfare: duties of parents Deben, L. Lingfield, L. For the purposes of section 3(1) of the Children Act 1989, Deighton, L. Livingston of Parkhead, L. the duties of the parent to their child are— Dholakia, L. Loomba, L. Dixon-Smith, L. Lucas, L. (a) to safeguard and promote the child’s health, development Dobbs, L. Luke, L. and welfare; Doocey, B. MacGregor of Pulham (b) to provide in a manner appropriate to the age and Dykes, L. Market, L. development of the child— Eaton, B. MacLaurin of Knebworth, L. (i) direction; and Eccles of Moulton, B. Maclennan of Rogart, L. Eccles, V. McNally, L. (ii) guidance, Eden of Winton, L. Maddock, B. to the child; Elton, L. Magan of Castletown, L. Empey, L. Mancroft, L. (c) if the child is not living with the parent, to maintain Falkner of Margravine, B. Manzoor, B. personal relations and contact with the child on a Faulks, L. Mar and Kellie, E. regular basis, Fearn, L. Mar, C. but only in so far as compliance with this section is practicable Fellowes of West Stafford, L. Marks of Henley-on-Thames, and in the best interest of the child.” Fink, L. L. Finkelstein, L. Marland, L. Flight, L. Marlesford, L. Lord Northbourne (CB): My Lords, in Grand Committee Fookes, B. Mayhew of Twysden, L. my Amendment 56 attracted a good deal of support; Forsyth of Drumlean, L. Methuen, L. there was a strong response from nine Members. That Fowler, L. Miller of Chilthorne Domer, is why I am bringing it back on Report stage as Framlingham, L. B. Amendment 15. Freud, L. Miller of Hendon, B. Garden of Frognal, B. Montrose, D. On 9 December the Daily Mail carried an important Gardiner of Kimble, L. Moore of Lower Marsh, L. article by Sir Paul Coleridge, a senior High Court Gardner of Parkes, B. Morris of Bolton, B. judge with 42 years’ experience in the family and Garel-Jones, L. Moynihan, L. criminal courts. He drew attention to what he called Geddes, L. Naseby, L. the “social revolution” that has taken place in our German, L. Nash, L. Glasgow, E. Neville-Jones, B. society. Marriage, he says, Glenarthur, L. Neville-Rolfe, B. “has come to be seen as unfashionable, serial fatherhood is Glentoran, L. Newby, L. widespread and an ever-growing number of children are no Goodlad, L. Noakes, B. longer brought up in stable households”. 1155 Children and Families Bill[LORDS] Children and Families Bill 1156

[LORD NORTHBOURNE] Lord McNally, suggested that the Government may The statistics about families that we have heard be able to come forward with other proposals to today seem to confirm that. For example, the Centre encourage responsible and committed parenting that for Social Justice has recently calculated that family might be even more effective than changing the law as breakdown is now costing this country £46 billion a it defines the duties of a parent. If the Government year—more than the defence budget. According to the are able to achieve that objective without changing the Office for National Statistics, the proportion of children law, I accept that that may be the best way forward. I born to unmarried mothers last year hit a record look forward to hearing the Government’s proposals. 47.5%: that is, very nearly half. Almost half of all I beg to move. marriages, as well as a huge number of informal parenting partnerships, now end in divorce or separation. Baroness Butler-Sloss: My Lords, I declare an interest According to the Marriage Foundation, only 50% of as a trustee of the Marriage Foundation. I express my children born today will be living with both their admiration for the tenacity of the noble Lord, Lord parents on their 16th birthday. What are known as Northbourne, in pursuing this difficult, worrying and “four-by-four families” are increasingly becoming a extremely important issue. Parenting must be a matter problem for schools in some disadvantaged areas. In of responsibility rather than rights; that point needs case any noble Lords do not know what a “four-by-four to be put forward again and again in every single place family” is, it is a mother with four children by four where it can possibly be put. The admirable proposals different fathers. that the noble Lord, Lord Northbourne, put in Every society needs to be concerned about the way Amendment 15 ought to be placed somewhere by the in which its children are brought up and about how Government. Whether they should be in primary they are being prepared for adult life, for citizenship legislation, I am not convinced, but certainly they and for their probable role as parents. In our society should be in guidance and, possibly, in part of the today, unwanted children, family breakdown and failure pack given to parents when they separate so that they to provide a stable and supportive family for too many can recognise their responsibilities after separation. I of the nation’s children as they grow up are seriously should like to see this sort of thing in libraries, as part damaging the life chances of future generations. of the school pack in the sixth form and in sixth form 4pm colleges, and in universities and colleges of further My Amendment 15 simply suggests that the education. The duties of parents that the noble Lord, Government should be more transparent in the way Lord Northbourne, has set out here should be part of that they define the responsibilities of parenthood—and, what all young and not so young people who are of an perhaps more particularly, the duties of fathers. It may age to be parents should have in their minds. be that marriage as we know it has or will become We ought to stop talking about the rights of parents optional, but I suggest that parental commitment and start talking about the responsibilities referred to cannot be optional, because it is a duty to the child. It in the Children Act, and also about duties. It is interesting can be avoided only by providing adequate alternative that the word “duty” is almost never used, but it is as stability and loving care. To provide non-parental important today as it was in the 19th century. It is time alternative stability and loving care for a child is not we started to use it again. I express again my admiration easy. It can be expensive unless the family is prepared for the noble Lord, Lord Northbourne, and I hope to step in. A much better solution must surely be to that what he has said will be taken further. help more parents to find fulfilment in raising their own child and to help parents do the job well by Baroness Tyler of Enfield (LD): I declare an interest adequately preparing them for it before they start as a vice-president of the charity Relate. I have great having children. Not having children may become a sympathy with what the noble Lord, Lord Northbourne, desirable option for some, but these things are not going is trying to achieve through this amendment, although to happen unless all young adults are aware of how I feel that primary legislation is probably not quite the much their child needs their love and care, and of the right place to put across this very important message. stability of growing up in a supportive family. I agree with the noble and learned Baroness, Lady Amendment 15 suggests that a change in the wording Butler-Sloss, that it is important to emphasise at every of the law could make it clearer to all parents how opportunity that this is about parental responsibilities important they are to their children. Since Grand rather than rights. That must flow through all the Committee, I have had a very helpful meeting with the messaging and communications that we talked about noble Lord, Lord McNally, on this subject. I also when we discussed the earlier amendment. want to thank Relate, which has kindly prepared for I, too, should like to see this guidance offered at me a very useful report on the current position of the many different opportunities. I should like to see this definition of parental responsibilities and duties in the sort of guidance as an integral part of relationship law, in this country and in other European countries. I education. We talked about the importance of relationship think that all 29 countries that it examined realise that education in Committee, and I suspect that we shall it is a difficult area for law, but few if any European return to it later. I should also like to see it included in countries have a less helpful definition than ours. the various pilots for birth registration in different Undoubtedly, there is a need somehow to make it venues. It would be good to see it included there, and clear to parents and prospective parents that, whether in the various packs—Bounty packs and others—that they like it or not, all parents have an onerous responsibility are prepared for new parents. I should like to see it at to provide for the well-being of any child whom they the new-parent stage, at the education stage and especially bring into the world. During our meeting the noble Lord, in the various advice and guidance packs that are 1157 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1158 available for separating parents. It has a lot to offer. It has to be terribly careful about preaching to the young. is a very important set of messages. I just happen to The sooner that one can start getting the idea of think that primary legislation is not quite the right parental responsibility out while people are at school, place for it. rather than waiting until they become parents, the better. Lord Hope of Craighead (CB): My Lords, since the Minister may be looking at this matter more fully, I Lord Elystan-Morgan (CB): My Lords, there is very suggest as a footnote to this discussion that he might little that I wish to add, or indeed properly could, to look at the Family Law (Scotland) Act—I think I have what has been said so splendidly by everyone who has the correct name of the Act, although I cannot give taken part. I join in congratulating my noble friend the date. The introductory text to that Act makes Lord Northbourne. He has been dedicated, committed exactly the point the noble Lord, Lord Northbourne, and consistent in his campaign, and I am sure that it is making. It talks about the responsibilities of the does not end today. parent to the child. The following section I think uses The one point that I wish to make, which follows on the word “rights”, but it is talking about the child’s from what has already been said by more than one rights rather than those of the parents. It is the counterpart contributor to this debate, relates to fathers. We hear to responsibilities. It has been set out in primary so often of fathers who have been deprived of custody legislation, I think on the recommendation of the of their children, and indeed of contact with them. A Scottish Law Commission, that it is a useful checklist huge campaign, which I think is very misinformed, of the corresponding rights of the child, but particularly has been fought over the years, and I know many of the responsibilities that rest upon the parent throughout judges who have suffered considerably on account of the child’s childhood. The Minister might find this the malicious attitudes of people in that connection. piece of comparative law helpful. The point that I wish to make is the obvious one: we should be thinking all the time of those hundreds of Baroness Howe of Idlicote (CB): My Lords, I will thousands, possibly millions, of fathers who have no add a brief note. While I probably agree that the Bill is interest whatever in maintaining any relationship with not the right place for these proposals, I remember the their children. As a circuit judge sitting in family excitement of the early days when I appeared in your matters, I felt that if there was a magic wand that one Lordships’ House and what was then the new Labour could wave to bring about a better situation in the Government had brought in something called citizenship. family context, it would be someone to inculcate those It generated a lot of excitement because it would people with a feeling for their responsibility. obviously have been a good place in which to put over the responsibilities of parents. Alas, it never happened, because citizenship got whizzed all over the place. Lord McNally: My Lords, all the contributions that have been made share the view of the noble Lord, I have somewhat changed my views over time on Lord Northbourne, that it is important that children PHSE. That also could be used rather more effectively have appropriate support and guidance as they go in schools in the future in these areas. Above all, I through life, and as they themselves become parents. emphasise the point that the earlier you can work with I do not think that there is disagreement here, although children on what their own children are going to need, I think that a number of noble Lords caveated their the better. Hopefully, not only will it prepare them for support for the noble Lord with the same doubt that being better parents but it might also help them be I have over whether what he seeks to do is necessarily rather better sisters and brothers, if they are living in best done in primary legislation. households where they need that extra guidance. Still, a number of the points that have been raised colour this debate. I fully agree with the noble Baroness, Lord Ramsbotham (CB): My Lords, yet again one Lady Howe, and the noble Lord, Lord Ramsbotham, finds oneself rising in admiration for my noble friend among others, that the earlier we start educating children Lord Northbourne’s persistence in pursuing these matters about the responsibilities they will one day have as over and again. I always listen with great care to the parents, the better, and I think that sometimes we have good sense that he exposes on these occasions. been afraid of taking those messages into school and Recently I had to inspect prisons in Kenya on an the mainstream of our education. extradition case. I was very struck that as we went inside each prison, there was a large board that was 4.15 pm published by the Human Rights Commission of Kenya, listing the rights of prisoners and, underneath them, a I will certainly take the suggestion made by the list of their responsibilities. Reflecting on what my noble and learned Lord, Lord Hope of Craighead, noble and learned friend Lady Butler-Sloss said, I about looking at family law in Scotland and how it remember seeing in a young offender establishment in deals with the matter. In my period in this job, I have Belfast the most imaginative course that I have seen been advised that “They do this better in Scotland” on for young people, which was called “Learning to live a number of occasions. I must be careful that I do not alone”. In addition to all the practical things that it influence decisions yet to be made, but a useful benefit taught them, parenting skills were in there. I remember of our union is that we can look at each other’s being very taken by the fact that the question of rights experiences, and I will certainly do that. and responsibilities was used in that course to educate The running theme is getting the balance between them in their responsibility as parents. It was very well rights and responsibilities and duties right. This House and admirably done, because it was not overdone; one may perhaps sometimes seem fuddy-duddy to a younger 1159 Children and Families Bill[LORDS] Children and Families Bill 1160

[LORD MCNALLY] schools should, among other issues, teach relationships, generation, but one of its jobs is to remind our citizens love and care and the responsibilities of parenthood about their duties as well as their rights and responsibilities as well as sex, to teach the taking of responsibility and and it is in that mood that I respond to this debate. No the consequences of one’s action in relation to sexual one would disagree with the aim of this amendment, activity and parenthood. As noble Lords may know, but there may be differing views on how best to amendments have already been tabled to be debated respond to the challenge. Parental responsibility is a later in the Bill on personal, social, health and economic fundamental concept in the Children Act 1989 and education, PSHE, and on sex and relationship education refers to all the rights, duties and responsibilities of —I think the noble Baroness, Lady Howarth, has parents towards their children. Case law has established those amendments. That will come up on the fourth a clear understanding of what that means. A parent’s day of debate, so we will have a chance of discussing responsibility for protecting and maintaining their those aspects of it later in this Bill. child is considered to be among the most important As I said, I think it is well apposite that Lord components of parental responsibility. So, too, is having Northbourne has raised these matters. I hope that, contact with the child. both in our one-to-one meeting and in what I have However, what parental responsibility means in said today, he can see that the issue that he is raising is practice, and how it is exercised in practice, will be very much on the Government’s radar. I think there is linked to the circumstances of the individuals concerned. cross-party support and support around the House for For example, a parent who for many possible reasons his objectives; the only doubt is whether his amendment does not have contact with a child is unlikely to be able meets the needs of such a broad-based response to this to exercise parental responsibility in the same way as issue. I hope that, in the light of this response, he will the parent who lives with the child. Any further definition agree to withdraw his amendment. of what is meant by parental responsibility would erode the courts’ flexibility to determine what parental Lord Northbourne: I am of course most grateful to responsibility amounts to in individual cases in a way the noble Lord for a very full response. I hate to say that moves with the times. No evidence has been put this, but I think that the statistics which I disclosed in forward to suggest that the existing definition is my earlier remarks show that those well intentioned problematic, and we have had no indications from the things which the Government are doing are, alas, not judiciary, which applies the definition routinely in achieving the objective we hope. I wonder if we could family proceedings, that change is needed. not perhaps rethink how we approach this issue. Instead So, while I sympathise with the noble Lord’s objective, of telling young people what they should not do, why I am not persuaded that this is the right way to achieve do we not make them feel good about doing what they it. Instead, I believe that the role of government is to should do—proud to be a father, proud to be a good provide information, support and advice to those who parent? I do not know, but it is just an idea. need it to help them to fulfil their role as parents and Anyway, I think I have to accept that primary to understand beforehand what parenthood entails. legislation is not the answer now. I believe one day we There are a number of ways in which we are doing will find it will improve the law in the 1989 Act this. I summarised them in a recent letter to the noble because it is currently too vague for words to be of the Lord, which was copied to others who spoke on this slightest use, but that is another matter. I beg leave to debate in Grand Committee. For example, we are withdraw the amendment. providing grant funding to a number of organisations whose projects support parents and families in a variety Amendment 15 withdrawn. of ways. As part of this, we are funding One Plus One to run a series of campaigns to promote relationship support targeting young people and new parents in Amendment 16 particular so that they see accessing relationship support Moved by Lord Lloyd of Berwick as a normal thing to do to strengthen their relationship, rather than at crisis points. The family nurse partnership 16: After Clause 14, insert the following new Clause— programme, funded by the Department of Health, is a “Care proceedings: standard of proof licensed programme for vulnerable first-time young (1) The Children Act 1989 is amended as follows. mothers. It works with young parents on attachment, (2) In section 31 (care and supervision), after subsection (2) relationships and psychological preparation for insert— parenthood through intensive and structured home “(2A) Subsection (2) above shall be interpreted so as to permit visiting delivered by specially trained nurses from early a court to infer that a child is likely to suffer significant harm pregnancy until the child is two. from the sole fact that the child is, or will be, living with a person who is a possible perpetrator of significant harm to another child. I agree entirely with my noble friend Lady Tyler (2B) For the purposes of subsection (2A), a person (the about the important role of schools. All schools are person concerned) is to be treated as a “possible perpetrator” if— required to provide a balanced and broadly based (a) a child has suffered significant harm; curriculum which prepares pupils at the school for the (b) the court is unable to identify the actual perpetrator of opportunities, responsibilities and experiences of later the said harm but identifies a list of possible perpetrators life. In teaching sex and relationship education, it is a by finding (in relation to each such person) that there is a statutory requirement for schools, including academies real possibility that he caused significant harm to the through their funding arrangement, to have regard to child; and the Secretary of State’s Sex and Relationship Education (c) the person concerned is one of the persons on the said Guidance of 2000. That guidance states that secondary list.”” 1161 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1162

Lord Lloyd of Berwick (CB): My Lords, I imagine That concern first came to the surface as a result of an that most of your Lordships have some experience of earlier observation made by the noble and learned the procedure for taking children into care, probably Baroness, Lady Hale, in a case called S-B, a case on more experience than I have. For those who have no very similar facts in which she held that the threshold such experience, perhaps I should say a few words of had not been crossed. Once again, the noble and explanation. learned Baroness described that case as being one of We are concerned with the interaction of two sections “vanishing rarity”. Again, if that be so, why did the of the Children Act 1989, Section 1 and Section 31. local authority in the more recent case, Re J, go to the Section 31 provides that a child may be taken into care length of constructing an artificial case, which it did, only if it, in order to challenge the decision in S-B? Why did it take that case all the way to the Supreme Court to test “is suffering, or is likely to suffer, significant harm”. that very point? It simply does not make sense. The “Likely to suffer”, in that context, does not mean more answer must surely be because cases such as S-B and probable than not. It means only that there is a real Re J are not as rare as the noble and learned Baroness, possibility that it will suffer significant harm, a possibility, Lady Hale, had in mind and because the decisions in as it was put by one learned judge, that cannot sensibly S-B and Re J have caused real concern among local be ignored. authority social workers. Section 31 is usually referred to as the threshold Secondly, I turn to the Government’s approach. On provision. Section 1 sets out the welfare principle, and 25 November the three of us—one of whom cannot be it is at the welfare stage that the court decides, after a here today—had a useful meeting with the Bill team, for full hearing on all the facts, what is in the best interests which we are very grateful. In a letter dated 29 November of the child in question. The fact that the threshold it was said that the Government could find no evidence stage is satisfied in any particular case does not mean that social workers were in any way concerned about that a child will necessarily be taken into care. Conversely, the present state of the law. That letter was followed if the threshold test is not satisfied, the court has no up by a letter of 4 December, in which the Government power to make an order under Section 1 and the child quoted the views of the Association of Directors of will remain at risk, if there is a risk. Children’s Services that it does not recognise Re J as Those are the relevant provisions. How then have having caused concern among social workers and it is they worked in practice? Where a child has been unaware of any problem in this field. seriously injured while in the care of its parents, it may be taken into care without the court having to decide 4.30 pm whether it was the father or the mother who inflicted The Government’s case in response to the amendment the injury—let us call that child, child A. The difficulty —so far as I know, it is the only response—is that arises when the father and the mother split up. Let us there is nothing here to worry about. That approach is suppose that the father goes to live with another impossible to reconcile with the evidence of John woman who already has a child—let us call it child B Hayes QC, leading counsel specialising in the field of —about the same age as child A. If the local authority child protection. I have a copy of the opinion dated has proved on a balance of probabilities that it was the 12 December in case anybody would like to see it. He father who injured child A, child B may be taken into describes the views expressed in the letters written on care, depending on what is in the best interests of that behalf of the Government as very surprising. In his child. The threshold in that case will have been passed. experience and that of his colleagues working in the However, it often happens that the father and the field, the two decisions to which I referred have indeed mother each blame the other for the injury to child A caused considerable concern to local authority social and, as a result, the court cannot decide at the threshold workers. He quotes chapter and verse, which I shall stage where the truth lies. One very experienced judge, not do this afternoon. Mr Justice Wall, later to become President of the Thirdly, I must refer to the judgment of Lord Family Division, described this as a commonplace Justice McFarlane in the Court of Appeal in Re J. As occurrence. In a very recent case, Re J, the Supreme the House will know, he is a very experienced judge in Court has decided that if at the threshold stage it the Family Division. He gave the leading judgment in cannot be decided whether it was the father or the the Court of Appeal in Re J, with which the noble and mother who injured child A, child B will remain at risk learned Lords, Lord Judge and Lord Neuberger, both in those circumstances. agreed. The judgment is 30 pages long, so I will not The noble and learned Baroness, Lady Hale, who read it to your Lordships—but I have read it myself, gave the leading judgment in that case, went on to say and I have reread it many times, with increasing that such cases are of “vanishing rarity”. I am not sure admiration. There is no doubt that, unlike the Association why she should have made that point. She cannot of Directors of Children’s Services, Lord Justice surely have been saying that because such cases are so McFarlane does see a real problem here. There is no rare it does not matter if an occasional child is left at doubt that he would have allowed the appeal of the risk. But, whatever the reason, it is on this point that I local authority in Re J if he had not been constrained, would respectfully disagree with her and for a number as he was, by the decision of the Supreme Court in of reasons. S-B, the case to which I have already referred. In the first place, if cases in which the court cannot Lastly, on the evidence, I have made such inquiries reach a decision at the threshold stage are as rare as all as I can of the judges who decide such cases at the that, why have they caused so much concern? That threshold stage. How often does it happen in practice they have caused concern is not, I think, in doubt. that, on the evidence available at that stage, it cannot 1163 Children and Families Bill[LORDS] Children and Families Bill 1164

[LORD LLOYD OF BERWICK] Lord Brown of Eaton-under-Heywood (Non-Afl): be decided whether it was the father or the mother My Lords, I supported this amendment in Grand who inflicted the injury? The answer I get is that it is Committee, and having added my name to it, I support by no means uncommon. It is certainly not vanishingly it again today. I stress again today, as I did in Committee, rare. I accept, of course—indeed, I am greatly reassured— that this is a threshold provision—that is fundamental. that in most cases the judge will be able to decide, by That provision dictates just when the court gets jurisdiction taking other factors into account, whether it was the to deal with a case. The situation is identified in the father or the mother. But there will undoubtedly be proposed amendment and has been explained by the some cases in which the judge simply cannot decide at noble and learned Lord, Lord Lloyd. The question is, the threshold stage. It is the purpose of this amendment when an adult who is caring for a child is the possible to cater for those cases and it does so by enabling the perpetrator of the death of or serious injury to another case to proceed as smoothly as possible to a full child, does the court have the power to deal with the hearing on the facts at the welfare stage. case? Has the threshold been crossed? I must now refer, as briefly as I can, to some of the That is a very different question—and this is also points made in Grand Committee. In replying to the crucial—from asking whether a care order or a supervision debate the noble Lord, Lord McNally, was concerned order should then be made. The noble and learned that the amendment would enable the local authority Lord, Lord Mackay of Clashfern, said in Committee to make a case on the ground that the father might that it would be “quite unfair” to take someone’s child have inflicted the injury—in other words, on the ground, into care merely because another person who has as he put it, of unsubstantiated suspicion. I cannot come to join that family is a possible perpetrator of stress strongly enough that that is not the object of another child’s harm. I entirely agree with him on that. this amendment, and nor would that be its effect. The But as the noble Baroness, Lady Howarth, noted in amendment would apply only where the father was Committee: one of two people who did inflict the injury, which is a “It is not being suggested that the children should be taken very different thing. away. The suggestion is whether we are able to move to the welfare The noble and learned Lord, Lord Mackay, made question”.—[Official Report, 21/10/13; col. GC 329.] the point that Section 31 has stood the test of time, The noble Baroness had earlier explained that the and I agree. But why has it stood the test of time? The result of the comparatively recent interpretation given answer is because, until very recently, courts up and by the courts to Section 31 was that the social workers, down the country have followed the guidance given by “now … cannot move to the welfare principle quickly enough, Mr Justice Wall, as he then was, in 1998, before he which means that often they cannot gain access to the home became President of the Family Division, in a case where the perpetrator is living”.—[Official Report, 21/10/13; called CB. That guidance was approved by the noble col. GC 326.] and learned Lord, Lord Nicholls, in the House of Lords She also noted that, in a case called Re O that was decided in 2004. That “social work organisations are extremely concerned about this guidance worked very well until very recently when the situation”.—[Official Report, 21/10/13; col. GC 326.] noble and learned Baroness, Lady Hale, threw doubt Indeed, Lord Justice McFarlane in the Re J case upon it in Re S-B and until in Re J the Supreme Court described it as, went further and disapproved that guidance. The purpose “a cause of concern amongst child protection agencies”. of this amendment is to restore the position as it was before Re J. It is therefore in no sense a leap in the Apparently it is now suggested by some that there is dark. If John Hayes, the learned Queen’s Counsel, is no real need for this concern, and that social workers right in paragraph 19 of his opinion social workers have no such concern. I do not pretend that I ever will breathe a sigh of relief if this amendment is practised in the field of family law, so I can claim no accepted and will know definitely where they are. personal experience of the problem resulting from Re J. But having read and reread more than once the very Finally, and with apologies, I must refer to the full counsel’s opinion by a Queen’s Counsel specialising speech of my noble and learned friend Lady Butler-Sloss. in this area of work—an opinion to which the noble She made much of the point in Re J that it was a and learned Lord, Lord Lloyd, has already referred, decision of seven judges, two of whom have great and which he yesterday copied to many of those who experience in this field, and that they were all, as she were to take part in this debate—it is difficult to see put it, absolutely unanimous. I agree of course that how the present interpretation of the Children Act 1989 they all reached the same result. However, the point could be thought not to cause concern. It is all very would perhaps have somewhat more force if they had well to say, as has been said, that Section 31 has stood all given the same reasons. They did not. One of the the test of time. As has been pointed out, Section 31 judges, Lord Wilson, who has great experience in this only received its present interpretation in the 2009 case field, disagreed with the others, and three of the of Re S-B. It was that interpretation by which all seven judges, led by Lord Reed, expressed their concern that members of the Supreme Court understandably felt the law in this field had become so complicated but themselves bound in Re J last year. said that it was now too late for the Supreme Court to do anything about it. It cannot, I think, be said that These comparatively recent decisions are the ones the trumpet in Re J has given a very certain sound. Be which counsel says, that as it may, what is certain is that there is a real “have caused such consternation amongst those working to protect problem here which needs to be solved, and solved vulnerable children”. urgently. The purpose of this amendment is to do just As to the suggestion that there is no problem in that. I beg to move. practice, counsel observed: 1165 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1166

“This is certainly not my experience nor that of my colleagues I was never a Supreme Court judge, but I respectfully working in the field of child protection”. agreed with the seven— To the question whether there is the need to ensure protection of unharmed children, where another child has suffered harm or death commonplace, counsel Lord Elton (Con): I have one difficulty. I understood answered with “an unequivocal yes”, having himself, that it was not at this stage a question of removing the “acted in many cases involving an unharmed child living with a child—I thought that it was a question only of moving possible perpetrator of past harm to another child”. to the welfare stage. The noble and learned Baroness He says: has just said the contrary. “The working of the amendment would mean that the Section 31 threshold can be crossed on the basis of likely significant harm. This would then open the way for the full range of protective Baroness Butler-Sloss: I am sorry—I was talking orders available to the court (the ‘welfare stage’ of the process). about the removal of the child or looking at other Once the threshold is crossed, the court would be in a position to aspects of the welfare stage. I am sorry if I conflated account for all relevant factors”. that, but the noble Lord is absolutely right. It is a A little later he adds: question as to whether the court can make decisions “It by no means follows that the unharmed children would be which include the removal of the children or the removed permanently. The amendment ensures a legal structure removal of the parent or putting in place supervision whereby the Section 31 threshold is crossed to enable that welfare orders or various other intrusive orders into the family. balance to be conducted. If it is not crossed, then that stage is never reached”. I suggest that this House should be cautious, when His opinion ends thus: seven judges have said that the threshold has not been “The best solution to these cases is to find the threshold reached and crossed, about passing an amendment to crossed but that the welfare decision must be made with it very the contrary effect. I was going to go through at some much in mind that the parent is a possible rather than an actual length the two cases that I think are relevant, because perpetrator. The proposed amendment would achieve that balance we go back to 1996—we do not start in 2009—but it is and secure child protection”. probably unnecessary. However, it was unrealistic for That is the question before us today. Should the the Supreme Court to be given the one bare fact and threshold be lowered to where, for the first 20 years of not the surrounding circumstances, although it was the Children Act’s operation it was understood to be, undoubtedly intentional. In my experience of 26 years to enable the court to move to the welfare stage and sitting as a family judge, 15 of them spent hearing this allow it, with the help of the social workers, to investigate sort of case—many children who died and many who all the circumstances of the case and decide whether, were seriously injured—as well as eight years spent in those circumstances, some care or supervision order hearing them on appeal, then going back to hearing should be made? No child could properly be taken them again as a first-instance judge, I do not remember into care merely—and I stress that word—because one a single case where this bare fact was the only point of its carers was the possible perpetrator of past harm. that the court had to deal with. So I believe that the I think that we all agree on that, but that fact alone cases are rare, although I entirely accept what the must warrant a full welfare investigation. Surely we noble and learned Lord says—that even the rare cases, owe children at risk no less than that. naturally, have to be protected. But if there is nothing but suspicion, I would suggest to your Lordships’ 4.45 pm House, as the Supreme Court judges said, that you Baroness Butler-Sloss: My Lords, this amendment should not remove the child on suspicion. raises an issue that has engaged academic legal discussion The court has the jurisdiction to look at the entire for about 18 years. I hear with some surprise the fact case, although it is not able to make a decision on that some dramatic change was made in the case of welfare in looking at the threshold point. There may Re J. That is not my impression. have been some degree of confusion in Grand Committee There are, of course, two schools of thought, as as to what in fact the local authority and the court there are in so many issues, even in family law. During could do. I hope the House will forgive me if I go the many years when I was a family judge, I heard through briefly what I understand the situation to be. I many child injury and death cases and agonised over would be astonished if it has changed from the days where the line was to be drawn between the protection when I was sitting as a judge. of a child from significant harm and the importance If you have a person, whom I will call P, who has for the child and the rest of the family of not removing been in a pool of possible perpetrators but not identified that child from the family home on insufficient evidence. as the actual perpetrator of the injury or death of a In the case that precipitated this amendment, as the child, the social workers are not precluded from noble and learned Lord, Lord Lloyd of Berwick, investigation. I respectfully disagree with my most pointed out, the seven members of the Supreme Court experienced noble friend Lady Howarth in saying that were in fact unanimous on this issue although they the social workers might not be able to enter the house disagreed on some less important points, as I would or make the proper investigations. With the person, respectfully call them. They decided on the balance of P, having been in a pool of possible perpetrators of the the bare facts of the case that they were against the death or injury of a child—in the particular case of J, removal of the children and that the threshold had not the child aged, I think, three weeks died of asphyxia been crossed. Put at its simplest, this is a question of but also had terrible injuries—the social services, if whether you remove a child on suspicion or go to the they had been alerted that P was in a new family, welfare stage on suspicion or whether you have to have would see that as a highly relevant factor and naturally evidence before you cross the threshold. very worrying. The local authority has a duty under 1167 Children and Families Bill[LORDS] Children and Families Bill 1168

[BARONESS BUTLER-SLOSS] I am very grateful to my noble and learned friend Section 17 of the Children Act 1989 to safeguard and for giving me the opportunity to read the opinion of promote the welfare of children in the area who are in John Hayes. Of course, I respect his experience as an need. It is almost certain that the sole fact available, advocate in care proceedings but I disagree with his that P had been in a pool of perpetrators, would trigger conclusions. Perhaps I may make a number of points immediate action by a local authority. on his opinion. He talks about a case of twins where Under Section 47(1)(b), a local authority in the unharmed twin would be in danger if not removed circumstances such as these would have a duty to from the family where the first child had been injured. make inquiries. A social worker would investigate and In that case, the unharmed child would certainly be be likely to visit the family. If the inquiries are frustrated removed. However, we are considering a new family by access to the children being unreasonably refused, where one adult member is a possible perpetrator but there may therefore be grounds for seeking an emergency there is now a new family unit with an adult against protection order under Section 44(1)(b) or (a), for whom there are no allegations at all. It may also be possible removal of the children from the home because relevant that in the J case the injuries perpetrated on of what is going wrong if they are not being allowed to the child took place seven or eight years before, and see the children. undoubtedly P would have matured. I believe that in that case she was extremely young—16 or 17 years The local authority could also seek a child assessment old. She was in a much more stable and supportive order under Section 42(3). In any event, the local environment and therefore might not pose a threat. authority would be likely to seek an interim care order Taking the other points made by Mr Hayes, if a from a family judge under Section 38(2) in respect of local authority becomes aware that a possible perpetrator the children. It would not look well to the judge if the is in the new family, I have no doubt that it will issue parents refused access to the children; that would be a the proceedings even if there are no other concerns, major marker against what was going on in the family. and I am surprised to hear John Hayes say something The children might be taken into interim care but, in to the contrary. I do not believe that the judge at the the case of J, the mother very properly left the home so interim care stage would dismiss the proceedings before that the children could continue to live with the father. having the opportunity to see all the reports and She moved out. examine all the evidence. If counsel for the parents There would be a directions hearing by the judge of applied at the interim directions stage to have the case the care application and a CAFCASS guardian would dismissed, I would be equally surprised if the judge almost certainly be appointed. During the period leading dismissed the case before the full hearing. I certainly to the substantive care hearing, the family would no would not have done that because I would have been doubt be examined in depth. At the main hearing, P worried. Of course, you would be worried until all the would clearly have to give evidence and be cross-examined facts were in front of you. I would hope that the child’s as to what happened in the first family when the child guardian would look at the best interests of the child was injured and died. She—it was a woman in that in the broadest sense and take into account the need case—and J would be cross-examined up hill and for a balance between protection and the right of the down dale as to why she had not protected the child, child to have a normal life with the natural family. whether she was actually the perpetrator, why she had Interestingly, Mr Hayes talks about the balance between not seen the injuries to the child, what she was doing protection of the child and the rights of the parents to while this child was being hurt, and whether she have a family life. For goodness’ sake, the right of the covered up for the other parent. Those are terribly child to have a family life is much more important relevant factors and, I would suggest, relevant factors than the right of the child’s parents. What we have to crossing the threshold if she gave unsatisfactory here is a balance between protection and the right to answers and if she was not believed by the judge. family life. There would be assessment reports from the social It seems to me that there has been an overreaction worker, and of course the guardian would give his by academics, some social workers, some lawyers and or her own report on the family’s position. All the some judges. The other side of the coin is the real circumstances would be very carefully considered by danger that, if this amendment is passed, children may the judge in deciding whether the evidence available to be permanently removed from their parents, their him or her was sufficient to cross the threshold barrier. homes, their schools and their friends on a suspicion that the person concerned was in the pool of perpetrators, Clearly, how well the new family were getting on although he or she cannot be proved to have done the and the care given to the new family by P and by the harm. That would be a great injustice to children, it other partner were relevant to identifying whether would cause significant harm where there was no there were other concerns that might tip the evidence serious threat to children’s well-being and it would tilt over the threshold. Only if there were no evidence at too far towards intrusion by the state into family life. all other than the bare fact of P having been in the pool but not having been proved to be the perpetrator would the evidence be insufficient to cross the threshold, 5pm and the judge would not make a care order or some Baroness Deech: My Lords, I have grappled long other order excluding P from the care of the children. and hard with this tricky issue. I should like to reduce That is the point at which, if you do not cross the it to three brief propositions, which have led me to threshold, you cannot make a decision about removing agree with the noble and learned Lords, Lord Lloyd the children or putting in a supervision order or any and Lord Brown. First, it is sadly too frequent that we other sort of order. do not know which of two parents may have harmed 1169 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1170 a child. Each blames the other; it is not provable; and All we are saying is that to get to the threshold of one of them goes on to form another family. There Section 31 where there has been this risk and there is must, therefore, be some danger because the parent possible danger, the local authority should be enabled either did it or stood by while it happened. Secondly, to take some action, which will not necessarily, as we are talking about only reaching a threshold. It is mentioned by the noble Lord, Lord Elton, result in not a question of leaping to the conclusion that the the child being removed from home. In fact, it is child must be removed. It simply triggers the ability of unlikely, unless there are serious risks, that the child the courts and social workers to investigate what is will be removed from home. The amendment will going on. Thirdly, there is absolutely no possibility of clarify this bit of law. Do not worry if you feel confused: harm ensuing from the amendment put forward by the sometimes I find it extremely confusing and, despite noble and learned Lords, whereas there is a distinct what their bosses say, quite a lot of social workers on possibility of harm if this amendment is not agreed. A the ground find it confusing, too. number of distinguished academics have written with great alarm calling for a change in the current situation and in support of the amendment moved by the noble Lord Walker of Gestingthorpe (CB): My Lords, and learned Lord, Lord Lloyd, with which I hope that the spectacle of a succession of retired senior judges the House will agree. re-arguing the law in your Lordships’ House may be a relatively novel and possibly relatively unwelcome Baroness Howarth of Breckland: My Lords, I find experience for those noble Lords who are not versed myself in a maelstrom of lawyers with no voice. My in the technicalities, but I nevertheless rise very position is that we been asking two questions which reluctantly to oppose the amendment. No one could do not necessarily have the same answer. When I be fuller of admiration and respect for my noble read the response from the department about this and learned friend, Lord Lloyd, who moved the proposal, it became clear that we are considering two amendment, but it is right to say a few words because different issues. One is whether a local authority has this is not just a point for lawyers. It is a point of enough powers to move into a family and take action enormous importance. It is a terrible thing if a child is if it believes that there is significant harm or the taken by the state away from his parent or parents on likelihood of significant harm. Of course, the ADSS inadequate grounds on the basis of suspicion that is and everyone else will say that they do have enough unfounded. It is also a terrible thing if the child is not powers because that is clearly so. The criticism comes protected against abuse in the home. There will always when local authorities do not move when they have be cases in which it is hugely difficult for the courts that capacity. to determine which of those is the more important, because it is often a question of balancing one risk The question we are considering is when two people against another. have been in a situation where a child has been harmed. Perhaps I may put a bracket around that thought for As my noble and learned friend Lord Mackay said a moment while we remind ourselves of the time on an earlier occasion, I believe that the threshold test when, if a child was murdered and you could not in Section 31 of the Children Act has stood the test prove which of two people had done it, both were of time. In one form or another, this point has been acquitted. There was a huge campaign by the NSPCC considered on at least six occasions since 1995 either to ensure that that could not happen; that is, if a child by your Lordships’ House in its judicial capacity or by was dead and clearly it was one person or the other, both the Supreme Court. It is not correct that the case of people involved were likely to find themselves found Re J has suddenly plunged the whole of the law into guilty until such time as there was greater clarification. uncertainty. Re J was a remarkable, unusual and sad We can close the bracket there and say, “Here we are: case, as so many of them are. I will say a word about we find ourselves in a situation where there are two that and about what the Supreme Court decided. I will people involved, someone has committed harm and do that as briefly as I can. maybe killed the child”. Recently, I spoke to a serious My noble and learned friend Lord Lloyd gave us lawyer and a previous Attorney-General, who I probably child A and child B. In fact, in Re J they went from should not name at the moment, who said, “If there is child A to child F. We start with the mother. She is the slightest margin that there is a risk that the child ultimately the wife in a stable marriage. The wife, in might end up dead, what action do you take? a relationship with another man, had child A and My noble friend Lady Deech has made the speech child B and child A died of serious non-accidental which I would have liked to have made. She has made injuries at the age of only three weeks. That led to important points. This amendment will do no harm. proceedings in relation to child B, who was the other This afternoon, your Lordships have had a real seminar child of that relationship. Child B was then adopted on Section 31 of the Children Act and the level of and disappeared from the scene. thresholds. It is important that we take action that Child C was in fact a child of the same mother and protects children if it does no harm. I am more concerned father but was believed to be the child of another that action is not taken by local authorities than that father, and it was only later that a DNA test established they are likely to whip children into care. To use a the true paternity. Child C was one of the children word we heard earlier, the “presumption” that local who formed the later stable relationship between the authorities take children into care wantonly is just not wife and her husband. They had one other child, who true. In fact, it is very difficult to get your child into was not the subject of care proceedings, child D, and care if you want to. A great deal of work and assessment children E and F were the children of the husband thresholds should be considered. through another relationship. 1171 Children and Families Bill[LORDS] Children and Families Bill 1172

[LORD WALKER OF GESTINGTHORPE] I apologise: I have gone on at much greater length So it was a very complicated situation indeed, and than I intended. Those are my reasons—with huge it was children C, E and F in relation to whom the care respect to my noble and learned friend Lord Lloyd—for proceedings were taken out. By then, the mother, who opposing the amendment. was, as my noble and learned friend, Lady Butler-Sloss, said, very young at the time that child A and child B were born, appeared to be in a stable relationship, but 5.15 pm in the proceedings relating to the death of child A and Lord Judge (CB): My Lords, to add to a maelstrom the future welfare of child B, the family judge said, of lawyers is not a particularly bright idea at this time almost in terms, that it was unnecessary to decide in the afternoon, but I declare an interest as I was a whether it was the mother or the father who perpetrated member of the Court of Appeal that decided, when the injuries, because both were involved. Each covered we decided it, the case of J. The case was brought to us up for the other and failed to see that the children so that the threshold test could be clarified: that was received proper medical care. the only purpose of it. It was brought by a local That was the background to the later child proceedings authority, deliberately focusing on the single fact in relation to child C, child E and child F, and those of possible perpetration and omitting any other are the proceedings that ultimately came to the Supreme consideration, so that the issue could go to the Supreme Court as Re J. They took an extraordinary course, as Court and that five previous decisions of the House of my noble and learned friend Lady Butler-Sloss mentioned, Lords could be analysed once more. We followed the in that the local authority, for reasons best known to previous decisions of the House of Lords and immediately itself for which it no doubt sincerely thought good, gave leave for appeal to the Supreme Court—a very decided that the case should be tried solely on the unusual step for the Court of Appeal to take—because fact that the mother had been a possible perpetrator of it had to be addressed in that court. the fatal injuries to child A, without letting in any Once it is established that an individual living in a other facts at all. That was the remarkable feature of household in which a child or children have been Re J, which was the subject of considerable adverse killed or seriously injured was one of the possible comment in the Court of Appeal, in which my noble perpetrators of the injuries, but the evidence is not and learned friend Lord Judge sat, together with Lord sufficiently clear for the court to identify who is actually Justice McFarlane and another Lord Justice. That, I responsible, where does that leave us? It leaves us with suggest, is what made Re J truly a rare case, although the possibility that the individual was, indeed, responsible the sort of problem that it raised is, sadly, by no means for the death or those injuries or some of them. That rare. seems to me to be a stark fact, but there is a further As to what the Supreme Court decided, it is correct consideration. Often the ill treatment has been repeated; to say that the noble and learned Baroness, Lady Hale these awful occasions are not, generally speaking, a said, in effect, that membership of a pool of possible one-off. Generally, what you have is a series of repeated perpetrators is not enough unless the judgment goes assaults on the child that culminate in an attack in as far as to say that, on the balance of probability, this which the child sustains fatal injuries. J was such a was the perpetrator. My noble and learned friend case. What that little baby had gone through in three Lord Lloyd said that Lord Wilson disagreed. He did, weeks is beyond description. but he went further. He said that not only is it not Therefore, in many of these cases, although not all enough, it should not be taken into account at all. of them, the person who has not actually caused any Lord Sumption agreed with Lord Wilson, so they injury has undoubtedly been aware of the fact that the both went further than the noble and learned Baroness, child has been suffering. It is not just that the child Lady Hale, in saying that membership of a pool is cries—we all know that babies whinge and cry, some not enough. The other three members of the court more than others—but this was a child with evidence indeed expressed the view that the law was over- on its little body of injury. Indeed, although these complicated, a view that one can readily agree with, cases are largely confined to the family court, one but, nevertheless, concurred without hesitation in the needs to stand back and wonder why on earth criminal result. prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish Since the original case in 1995, in which the House who is guilty of the murder or manslaughter, but, of Lords in its judicial capacity was split 3:2—a case in where the evidence is uncertain, to demonstrate that which my noble and learned friend Lord Lloyd was a both, on any view, are culpable in the sense that they member of the Court—there have been five unanimous have allowed the child to be bullied and abused in the decisions by the House of Lords in its judicial capacity way that has culminated in its death. If there had been or the Supreme Court which have reached the conclusion a criminal prosecution and a conviction, it would not that this is how Section 31 should be applied. have occurred to anyone to say, “Oh well, that conviction My noble friend Lady Deech said that the amendment is irrelevant to the threshold test that the family court would do no harm. I respectfully suggest that it would, has to ask in relation to another case”. at least in this respect. It would introduce the phrase If there are combinations of events like those that “a real possibility”, which is the judicial gloss that has have happened, it seems to me that they raise issues of been put on “likelihood, looking to the future”, to great relevance to the threshold test in family proceedings. describe something that lies not in the future but in the It is not a question of removing a child from a family past. If I may say so, that is a very unlawyerly way to on the basis of suspicion alone; it is that the threshold express oneself. test should be allowed to be tested by reference to all 1173 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1174 the relevant evidence. If all the relevant evidence reveals point at the end of the proposed amendment, that this that the threshold test should be passed, then you is a “real possibility”and something that cannot sensibly move on to care proceedings. For me, the idea that we be ignored, I suggest that we are still below the threshold should exclude from the threshold test possible, relevant which Section 31(2) sets. material is not how justice is done. Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was Lord Hope of Craighead: My Lords, I hope that I not saying that the problem which the amendment is may be forgiven for adding one more lawyer’s speech addressing is rare in itself. She was not saying, I think, to those which have already been given, and particularly that it is rare for two people in the situation in which that the noble Baroness, Lady Howarth, will forgive the carer in this case was placed to blame each other, me for doing this. My reason for wanting to speak is so that the court is unable to decide between the two. that I presided over the case of In re J in the Supreme What she was saying was extremely rare was the Court. I think that the noble and learned Lord, Lord situation which the court was being presented with: Judge, expressed great concern that the issue was that this was the sole fact. As she put it in her judgment, being brought before the courts on a hypothesis; I the issue hardly ever comes before the court at the think I am right in saying that he said that it is not the threshold stage packaged in that way. The point which business of the court to judge hypothetical cases. We she was making, and which one can see by studying took the view that we should decide the case on the the structure of the Children Act, is that in Part V, and material that we were given, but it is right to stress, as in particular in Section 47, powers are available to the the noble and learned Baroness, Lady Hale, stressed, local authority to make inquiries and, if it is thwarted, that the situation we were presented with was highly to take further steps which may ultimately lead to an artificial in order to test one particular point: whether emergency protection order being applied for and so the “sole fact”, as it is put in the noble and learned on, as the noble and learned Baroness, Lady Butler-Sloss, Lord’s amendment, was enough to cross the threshold. explained to us. I do not want to add anything to the clear description In the case of In re J, there was a difference of view which the noble and learned Lord, Lord Walker of as to whether the sole fact which has been referred to Gestingthorpe, gave us as to what the case of In re J was relevant at all. In my judgment, I used the words was all about, but I should like to say briefly why I join “relevant”and “sufficient”to try to explain the difference with the noble and learned Baroness in resisting the of view. Lord Wilson and Lord Sumption said that it amendment. In my case, it is particularly on account was not relevant at all; the rest of us said that the fact of its wording, given the use of “sole fact” and the of the possible perpetration was relevant and could reference to “real possibility”. My objections can be not be ignored, but it is not enough and is not sufficient summarised on three simple grounds: first, the amendment to cross the threshold and therefore something more as it stands is wrong in principle; secondly, when you must be found. look at the structure of the statute it is unnecessary; The problem with the amendment is that it has and, thirdly, from the point of view of family life in absolutely no context attached to it. The sole possibilities circumstances that are quite likely to occur, it could are stated in the amendment in the starkest possible indeed be damaging. terms. However, as soon as you start to examine a First, on the principle, I respectfully suggest that particular case—as the noble and learned Lord, Lord the golden rule is that a prediction of future harm has Judge, did when he talked about the number of injuries to be based on facts which have been proved on a inflicted in that tragic period of three weeks—you are balance of probabilities. It is only then that the state adding something that is not in the amendment. Indeed, would be justified in removing a child from the family; the noble and learned Lord, Lord Lloyd, said that the in our democratic society, it is not enough that there amendment is dealing with the situation of two possible should be suspicion. It has to be based on proof, so the perpetrators only, but it does not actually say that. It state should be required to demonstrate that it has real just says “a possible perpetrator”. As soon as you and current concerns about the child’s safety before begin to make inquiries and search around, you are the child is taken into care. I appreciate that I am going to add things in which begin to build up a moving through all sorts of stages in making that context which the social worker will be able to put proposition, but that is the background to the point I together before the threshold stage has to be crossed wish to make. I stress that if we look at the wording of when the case is brought into court. My objection to Section 31(2) of the Children Act, which we do not the amendment is really that: that it does not give you have on the paper before us, when it states that a child any context at all. Surely, that is taking the matter may be taken into care only if, too far. “the child … is suffering, or is likely to suffer, significant harm”, The third and final point is the risk of damage. Let it is using the language of proof, not of possibility. us contemplate a situation which is not far removed That was a point made by Lord Nicholls some 18 years from the situation of In re J, where the woman—and ago in the case of In re H. let us take the woman because it was the woman in In As I think the noble and learned Lord, Lord Brown re J—is living in an abusive relationship. That was of Eaton-under-Heywood, accepted, the amendment indeed the case here because she had separated from has the effect of lowering the threshold to some degree. the previous partner because he was violent to her It assumes that the state cannot prove that the carer in repeatedly and eventually she left him. All sorts of question was the perpetrator—that all it can prove is reasons can be imagined why she did not blame him. that she was a possible perpetrator—and that that She may have been under pressure from him. She bald fact is all that can be done. Even allowing for the decides to create a new life for herself, as indeed she 1175 Children and Families Bill[LORDS] Children and Families Bill 1176

[LORD HOPE OF CRAIGHEAD] correct me if I am wrong, was to this effect: normally was doing in In re J, making a relationship with the test will be on a balance of probability—less or somebody who is absolutely blameless, who has children more likely. However—I believe that these were his of his own already. There she is, now in family with words—the more serious the accusation, the more him with a further child of their own. cogent must be the evidence to establish that accusation. My concern is that, if the amendment is passed in If I am right about that, and I believe that I am, it its stark form, it holds a threat over that relationship means that this amendment would undermine that from the very beginning. There must be a question principle in Re H completely. about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of Baroness Hughes of Stretford: My Lords, this has what happened in the past?” The amendment pays no been a very long debate and I do not intend to extend regard to the length of time that may have elapsed it much longer, but I want to join the noble Baroness, between the incident when the perpetration occurred Lady Howarth, as another non-lawyer in redressing and the moment at which the inquiry is being initiated. the balance slightly. I have listened very carefully to all Without elaborating further, it is the starkness of the the excellent contributions. I say at the outset to the amendment, which lowers the threshold, that is a Minister that this situation presents a challenge to the cause for real concern. Government and I hope that they will rise to it I wrote to the noble and learned Lord, Lord Lloyd, constructively; I am sure that he will try to do so. with a suggestion about how one might approach We have heard from people across the House today, the problem—because I do appreciate that there is a all of whom are very experienced in one way or problem—by suggesting that, without using the word another and absolutely committed to the welfare of “sole”, one might be able to reassure social workers children, yet this is a highly contested issue with at that this factor is relevant, which I believe firmly least three separate points of view being expressed would be the case. If an amendment were to be framed during the course of today’s debate: those who think which made that point and put it beyond doubt, then I that there is an issue to be addressed and that the would be entirely happy and I hope very much that it amendment from the noble and learned Lord, Lord would reassure social workers. However, the amendment Lloyd, attempts to address it; those who do not believe as phrased goes far too far and is too stark and for that there is an issue to be addressed; and those who that reason I support the noble and learned Baroness, believe that there may be an issue but this amendment Lady Butler-Sloss, in resisting the amendment. is not the way to do it. I think there is an issue but, although we will wait to see how the noble and learned Baroness Kennedy of The Shaws (Lab): My Lords, I, Lord sums up, I do not think it is one that the House too, oppose the amendment. I am glad that the noble could resolve by amendment to this Bill. However, I and learned Lord, Lord Hope, has mentioned the hope that the Minister, having heard the debate tonight, difficulty where there is background of abuse against will be prepared to examine it further before Third the mother of the child. I have been involved in cases Reading and come back with some proposal to try to where that has been the situation. That can often be reach a resolution. the reason why a woman at trial does not testify, or at It is clear from the debate that there has been a the police station does not give an account, of what change in the way in which courts, rather than social has happened at the hands of her abusive partner who workers, can apply the Children Act. That change was has also abused her child. as a result of the intervention of the noble and learned I was glad to hear the discussion that has just taken Baroness, Lady Hale. In those situations where a child place, but my concern is the narrowness of the drafting. is living with someone who is a possible perpetrator of Before any judgment was made, I would want to be proven abuse to another child, whereas previously the sure that one was able to explore the context and the court could have said, “That’s enough, that’s the threshold; situation that the mother was in at the time. Very we will now consider the welfare issues”, the noble and often, battered women are frozen into a situation learned Baroness has said, “No, that is not enough”. where they do not act to protect their child, and we Now the court cannot even consider the welfare issues should be very careful about not letting someone have to the child in the round. That is the crucial change. a chance to make a new life with a new partner in very I will not go through the arguments that have been different circumstances where they would be perfectly put forward, but I shall just make one or two comments. good as a parent. The noble and learned Baroness, Lady Butler-Sloss, for whom I have the most enormous respect, said that 5.30 pm there ought not to be the possibility of court intervention Lord Elystan-Morgan: I certainly had not intended on the basis of suspicion. Normally that would be to take part in this debate, which has been at a very right, but the problem in this case is that it is not just exalted level. However, the speech from the noble and suspicion; there is a proven fact of harm or death to a learned Lord, Lord Hope, reminded me of another previous child by one or other, or more, of the parties. point that has not been touched upon. If one reads the The difficulty is that we do not know which one. amendment as it is worded, one has the impression The noble and learned Lord, Lord Walker, said that the test should very probably be on the balance of that it is a terrible thing if a child is removed from its probability. The noble and learned Lord, Lord Hope, home on unfounded evidence. Yes, it is, but it is also a referred to the judgment by Lord Nicholls in Re H terrible thing if we learn only with hindsight that that 18 years ago. The judgment as I remember it, and child was actually living with someone who was the 1177 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1178 perpetrator and who was a danger to that child and The Government believe that Section 31 is robust injured or killed that child. Those are the very difficult enough. The point was made that it is not a threshold judgments. I feel that, faced with that very difficult for social workers to make child protection interventions. situation, I would be more comfortable—I am entirely That has been made very clear. The rarity of the case with the noble and learned Lord, Lord Judge, on was dismissed. The noble and learned Baroness, Lady this—if a court were considering those issues rather Hale, rightly said that so artificial a case on such a than it having to say, “No, we can’t look at it, because single issue is the rarity. That is where some of the we’re not allowed to any longer because the threshold confusion has arisen. can’t be met and that is the current ruling”. That is a We have had some very strong arguments. In the great concern. As I say, I hope that the Minister will light of the very full debate held in Committee, we rise to the fact that we have a hotly contested issue have discussed this further with the chief social worker, on a very serious matter on which people whom the Association of Directors of Children’s Services we respect across the piece have come to different and the College of Social Work, and they have all judgments. This needs to be resolved, and I hope that confirmed that they do not support this amendment. the Minister will set out a pathway by which that can If the noble and learned Lord, Lord Lloyd, does be achieved. not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. Lord McNally: My Lords, I will certainly try to rise I do not think it would do a service to the House or be to the challenge. It would be a lot easier to rise to if the the way to make a very important law. This will have Titans who have clashed today had come to anything to stand for a very long time. If there are initiatives or like a conclusive agreement about how it should be suggestions that can get some unanimity across the met. I have never been one to think that Parliament Chamber—and, perhaps even more helpfully, on the should never challenge the views of our courts, or vice Cross Benches—there may still be some time for versa. I have said before that I think a little friction movement, but as it stands now, and in the light of the between the two is sometimes quite useful. On the advice that the noble and learned Lord, Lord Walker, other hand, we have a separation of powers where we gave us in a considered and thoughtful speech that entrust our learned judges with making wise decisions. Section 31 has stood the test of time and has been I am therefore a little tremulous about suggesting examined six times during that period, it would be that we accept an amendment that, if the noble and impetuous of this House to back the amendment learned Lord, Lord Walker, is to be believed, and I am moved by the noble and learned Lord, Lord Lloyd, sure he is, flies in the face of six separate judgments by this evening. If he wishes to press it, I will urge the either the House of Lords in the old days or the House, with the proper sense of responsibility, to Supreme Court. We have to think very hard before we reject it. pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an Lord Lloyd of Berwick: My Lords, I am very grateful artificial case aimed at clarifying the law—I have to for the Minister’s careful response to this amendment. say that the words you usually use are, “With the I am also very grateful to all those who have spoken in utmost respect”—it did not work. support of it. Of course, I am also very aware of those I cannot make commitments to the noble Baroness, who have spoken against it. Even if I had thought that Lady Hughes, that we can solve this between now and we would win tonight, I would not want to divide Third Reading. Of course I shall take back the debate the House. It would be highly irresponsible to make a that we have had and the considerable arguments that snap decision on such an important and difficult area have been made. It would be impertinent of me to try as child protection. to encapsulate those; those who have been in the debate have heard cogent arguments on both sides. The one thing that the debate has established beyond any doubt is that there is a problem here that needs to All of us, whether we have had these responsibilities be solved urgently. As I have said from the very start of or are just ordinary citizens, know that when these this amendment, this should be a non-party matter. It things go wrong and a child is murdered, the media is purely a matter of law reform. That is why I was so pack descends on, usually, a social worker and the very glad to hear the noble Baroness, Lady Hughes, consequences are extremely grave. On the other hand, suggest in her excellent speech that there is an opportunity as we also know, voices are raised saying that we are between now and Third Reading to hold some sort of too casual in our willingness to take children into care. discussions on an all-party basis to see whether there Accusations have been made at the other end of the is some way in which we can find a way forward which corridor that local authorities can be cavalier. I fully would satisfy all the lawyers here as well as the public take the point made by the noble and learned Baroness, at large. If we can find such a way forward, that would Lady Butler-Sloss, and the noble and learned Lord, be by far the best solution. If we cannot, I respectfully Lord Hope, that if you are going to take a child from suggest to the Minister that this is a case for a reference its family you must have proof as well as suspicion. to the Law Commission for an urgent hearing about These are very weighty matters. I put it to—I was what is best to be done in this situation. going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned 5.45 pm Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I Lord McNally: As I said before, I am worried. We would ask the House, in all sense of responsibility, to have very strict rules about bringing matters back at vote against him. Third Reading, and I do not want to lure the noble 1179 Children and Families Bill[LORDS] Children and Families Bill 1180

[LORD MCNALLY] This amendment was recommended by the Joint and learned Lord into thinking that by withdrawing Committee on Human Rights to place the principle of he can be guaranteed a Third Reading debate. On the inclusion in the Bill among the general principles set other hand, the point he has just made may be a way out in Clause 19, in line with the rights contained in forward on this. I do not know. I swear I have never the UN convention and in terms which closely follow said this before across the Dispatch Box, but I am not the language of the UK’s interpretive declaration. a lawyer. If the lawyers can help us in this, we will In Grand Committee, the Minister outlined steps consult, but I do not want to inflict on the House a which the Government were taking to promote the Third Reading debate of this complexity, which would principle of inclusion, which he considered made it not be very popular with the House. unnecessary to amend Clause 19. He referred to duties under the Equality Act 2010 to prevent discrimination Lord Lloyd of Berwick: I fully understand and against disabled people, to promote equality of accept the position which the Minister has taken. It opportunity, to plan to increase access over time and would be admirable if we could organise some sort of to make reasonable adjustments to policies and practices. cross-party discussion, perhaps with outside assistance. For the most part, however, the measures he referred Lawyers need assistance from social workers to find to were what I might call “soft measures”, such as out the best way of finding a solution. If we can find continuous professional development of staff and one before Third Reading, so much the better; if not, development of expertise in supporting children with then clearly it ought to go to the Law Commission for SEN. He also relied on the fact that guidance on a quick hearing. I beg leave to withdraw the amendment. inclusion would be given in the SEN code of practice. Why should one want to go further than this? There Amendment 16 withdrawn. are six reasons. First, the code of practice, the latest draft of which was issued on 4 October, is very much watered down compared with the existing guidance. In Clause 19: Local authority functions: supporting and particular, it contains many fewer of the sorts of involving children and young people examples and scenarios which help to bring the principle of inclusion to life for people who need guidance in Amendment 16A how to implement it. We need something like the Moved by Lord Low of Dalston JCHR’s principle in the Bill as a necessary peg on which to hang stronger guidance. Secondly, the principle 16A: Clause 19, page 19, line 20, at end insert— of inclusion continues to be the subject of considerable “( ) the need to continue to develop an inclusive system litigation. This suggests that the current state of the where parents of disabled children have increasing access law and guidance leaves considerable scope for uncertainty. to mainstream schools and staff and which have the capacity to meet the needs of disabled children.” Putting the JCHR’s general principle in the Bill would help to remove this uncertainty and clarify the law and relevant guidance. Thirdly, the JCHR has recommended Lord Low of Dalston (CB): My Lords, we now our amendment. Fourthly, it is in line with the obligations come to Part 3. I shall move Amendment 16A, and to which the UK has signed up under the UN convention. speak briefly in support of Amendment 34A in the Fifthly, as I have said, the language of the amendment name of the noble Baroness, Lady Howe. closely follows that of the UK’s own interpretive In 1978, the noble Baroness, Lady Warnock, described declaration, so should hardly be uncongenial to the inclusion, or integration, as it was known at that time, Government. as, Sixthly, there is otherwise nothing about inclusion “the central contemporary issue in special education”. in the Bill, notwithstanding that inclusion remains one It has not lost much of its salience in the time that has of the central contemporary issues in special education, elapsed since then. It refers to the opportunity, or even as I have said. The Minister will point out that Clauses 33 the right, for disabled children to be educated in and 34 effectively contain rights to inclusion, but—and mainstream schools alongside their non-disabled peers this is the most important point—these are rights to as an expression of their right to take their place in the inclusion for the individual child. We need a general community as fully equal members of that community. principle in the Bill in the terms of this amendment It is a right that many disabled people feel has been which gives local authorities an obligation to, too long denied and which is accordingly all the more “continue to develop an inclusive system where parents of disabled highly prized, especially by many parents so far as the children have increasing access to mainstream schools and staff education of their disabled children is concerned. and which have the capacity to meet the needs of disabled The right to inclusive education is contained in children”. Article 24 of the UN Convention on the Rights of We need an obligation of this sort in the Bill and one Persons with Disabilities, which the UK ratified in which lays the obligation on local authorities to take a 2009. In relation to the right to education, states are strategic overview of the provision in their area and also under an obligation to take measures to achieve plan for its strategic development in line with the the progressive realisation of the right. When the UK principles of inclusion, and in a way which enables ratified the convention, it entered a reservation and that principle to be progressively realised. Without interpretative declaration to the right to inclusive this, we continue to encounter the problem of children education, but the terms of its declaration made clear being rejected by individual schools which do not have that the UK accepted the obligation of the progressive the facilities—because the legislation is drawn in such realisation of the right to inclusive education. a way that they can do that—because the authority 1181 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1182 has failed to take a strategic overview and ensure that be educated in a mainstream school. There are no there are schools in their area which have the requisite exceptions to this duty, which helps to ensure that facilities. children and young people are not inappropriately There is one general point. I see that people might placed in special schools. worry that an amendment in these terms, which speaks Under both the old and the new regulations, a child of the progressive development of an inclusive system, can attend a special school on an assessment place. with increasing access to mainstream schools, might Despite some sympathetic comments by the Minister tend to exclude the possibility of education in special in Grand Committee, the Government’s proposals will schools for those who want it. That is not my intention still potentially allow special academies, including free at all. I am in favour of what I call a mixed economy of schools, to admit children or young people permanently provision. There is nothing in this amendment which into school without their having had their special would take away the right of a parent to opt for a needs statutorily assessed, or an education, health and special-school placement if they want to. This is enshrined care plan put in place for them. in the legislation. Under the law as it stands, which is Illustrative regulations accompanying Clause 34 retained in this Bill, no one can be compelled to send —Regulation 2(2)—will also allow children without their child to a mainstream school who does not an EHC plan to be placed in any special school on an want to. ongoing basis provided the situation is reviewed annually. I will just say a word about Amendment 34A. My Although the Minister stressed that the support of Amendment 16A covers the importance of developing professional advice would be needed, I fear that not an inclusive system in which disabled children and enough safeguards will be in place to stop children or young people are increasingly welcomed by mainstream young people being admitted without their needs being schools with the right skills to support them. The fully assessed and agreed by a range of professionals general presumption in favour of mainstream education with the child or young person and his or her parents. is maintained in Clause 33. That is why it is disappointing that the potential for special academies to admit children 6pm with SEN without an education, health and care assessment and plan is included in Clause 34(9). The This proposal bypasses the careful consideration of fact that academies are brought within the SEN framework a child’s needs through an EHC assessment which by this Bill is very welcome, but the inclusion of brings together a range of information and advice, Clause 34(9) seems oddly at variance with this approach. including parents’ views, children’s views and advice As I said at Grand Committee, this clause undermines from professionals with expertise in relevant areas of a long-standing consensus that children and young SEN, including those nominated by the parent or people should be placed in special schools only where young person. The proposal would seem to undermine this has been identified as the most appropriate placement, the principle that mainstream schools must be enabled following a statutory assessment and decision-making to make provision for all children without a statement/ process which takes full account of the wishes of the EHC plan and for most children with a statement/EHC parent. plan. Draft regulations under Clause 34 allow a child or Although special academies will need to make it young person to be placed in a special school without clear through their funding agreement that a child or an EHC assessment and plan on an indefinite basis, young person with SEN but no EHC plan should be provided that the placement is reviewed termly. Some placed there only at the request of their parents or at parents may welcome this power because of the potential their own request, and with the support of professional to give swifter access to a special-school place. Without advice such as a report from an educational psychologist, a full assessment and decision-making process, however, I am concerned that there will be no formal role for there is a high risk of inappropriate placement. This the local authority in this process. I fear that this new power to place children in special schools outside proposal will make the local authority’s role of planning the rigour of a statutory assessment and decision-making provision for pupils with SEN, including provision for process risks a return to a time when parents could be children and young people with an EHC plan, extremely pushed into accepting a special-school place for their difficult. child, not because it is the best placement for them but The draft SEN code of practice confirms that an because the mainstream school had not, for whatever educational psychologist on their own might support reason, provided the appropriate support. In fact, it the placement of a child or young person in a special would take us back to the situation which obtained academy. However, it is unlikely that an EP on their before 1999. own would be happy to advise in this way; their advice I support the noble Baroness, Lady Howe, in proposing would normally sit alongside advice from others who that this subsection be removed and, in so doing, I beg also have specialist knowledge in the relevant area of to move Amendment 16A. SEN. This proposal contradicts the Government’s stated commitment to apply the SEN framework equally to Baroness Howe of Idlicote (CB): My Lords, my maintained schools and academies. It also bypasses amendment, which I am pleased to hear the noble the decision-making process built into an EHC plan Lord, Lord Low, is also supporting, is very much which gives parents a right to request the school at along the lines of the discussion we all had in Committee. which they would like to have their child’s needs met, Currently, as we know, any child who has special and a right of appeal against the decision of the local educational needs but does not have a statement must authority. 1183 Children and Families Bill[LORDS] Children and Families Bill 1184

[BARONESS HOWE OF IDLICOTE] who is concerned with Part 3 of the Bill; namely, the If this proposal were enacted, there would be a lack of clarity as to how children who do not get an danger of mainstream schools being incentivised to EHC plan will be placed, and the processes by which persuade parents that their child would be “better off” they are placed. This must be a worry for parents with in a special school just because they did not want them moderately disabled children as well as for people who in their school, and a child or young person could be are concerned with the clarity—as we hope—of the moved into special education without their needs and legislation. interests being safeguarded by having an EHC plan in I am not a wholehearted, ideological supporter of place. This would take us back to the situation that inclusion for all children. I think that special schools prevailed before the Education Act 1981 was introduced. are enormously important, and there was a time when There is also a high risk of head teachers deciding the it looked as though we were going to have specialist placement of children with SEN, with parents persuaded special schools, beacon special schools and special of the benefit because otherwise their child might schools whose expertise would flow over into mainstream potentially be excluded. schools much more readily than it does at present. Special schools admitting a child value and use all Therefore, I am by no means concerned to uphold a the information from an assessment and statement to view that would end with all children with disabilities assure themselves that the child has the type of need being educated in the mainstream. In some cases, it is for which they are designated. However, this proposal very difficult to ensure that children with disabilities would not ensure that this would continue. It would do not interrupt or destroy the possibility of the seem contrary to the Government’s new way of assessing, education of other children in the school—this, of and commitment to meet, the needs of all children course, goes particularly for children with behavioural and young people with SEN. and emotional difficulties. There could also be a situation where special academies The Bill needs to be much clearer on how children increasingly enrolled pupils with less complex needs, will be placed within their local authority area if they which would beg the question of where children with do not have a plan made out especially for them—I complex needs would go. If this provision remains, I think that that is still a matter of lack of clarity. would question the point of having mainstream places Parents find it very difficult to make the decisions and within a special school. choices that the Bill very properly emphasises, because I fear that the proposal would result in medical of the difficulty of access to exactly what the ordinary, labels determining whether a child would secure a mainstream school will be able to offer their child. I place in a special academy. If a special academy has know that a large number of parents want mainstream been set up for a particular type of SEN, will it result education for their children whatever their disabilities, in an influx of children having been diagnosed with whether they are going to get the best possible education that condition? How can the Government ensure that and the best possible chances or not—it is a fixed a framework process is in place so that inappropriate belief that it is a right for a child to be educated in the placements do not occur? mainstream and for parents to make that demand. There are also concerns about the practical impact Parents who are genuinely interested in finding the on admissions and places. Would decisions be taken right school for their child who has a disability, but solely by schools and parents, and how would EPs’ may not be severely disabled or have a complex disability views be protected and advocated? How would places that speaks for itself, need the means to make a be allocated within school-year groups? If there was properly informed choice. That is why I like the wording parental demand, could the funding agreement be of my noble friend’s amendment—although I find varied to allow more non-EHC plan places? The policy the grammar rather difficult—and why I strongly also begs the key question of what the aspiration support it. would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they were making Baroness Wilkins (Lab): My Lords, I speak in strong adequate progress? support of the amendment of the noble Lord, Lord I understand the Government’s position, which the Low, which is set out so comprehensively and to which Minister set out in Grand Committee, that the views I added my name. If accepted, it will reassure those of of the parent should be the determining factor in what us who are concerned that elements of Part 3 of the school a child attends. However, there need to be Bill could weaken the right of disabled children and stricter and clearer protocols for what steps the parents young people with SEN to be included in mainstream must follow in such instances to protect both them education. Sadly, the noble Baroness, Lady Campbell and the child or young person from the risk of receiving of Surbiton, is not able to be in her place today misinformation. Regulations should also state that, on because, like many people, she has a bad cold. But making this decision, parents must have ready access many noble Lords will have heard her give eloquent to specialist advice that may fully explain both the testimony of the blight that her segregated education potential beneficial and negative outcomes of any laid on her life. It was not necessary, and it is something such decision for the child or young person. I look that has never left her. forward to hearing what the Minister has to say. It would be welcome if the amendment were further strengthened by extending the duty to post-16 providers, Baroness Warnock (CB): My Lords, I have added to ensure consistency for disabled learners across the my name to the amendment of my noble friend Lord educational experience. Local authorities such as Low for reasons that I think are a worry for everybody Nottingham, Calderdale and Newham have used such 1185 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1186 duties to good effect. They have provided specialist disabilities; in a good mainstream school they will have support services and training for mainstream schools an incentive not to. The duty should be explicit, so it so that those schools are confident in implementing ought to be in the Bill. inclusive educational practice. This has increased the number of disabled children and young people with a 6.15 pm wide range of impairments and health conditions Baroness Hughes of Stretford: My Lords, I shall being included in mainstream education. But while briefly, but strongly, support both amendments. On some local authorities have been proactive in promoting Amendment 34A, the noble Baroness, Lady Howe, inclusive education at a strategic level, a lot of work has fully explained her concerns, which I share, about still needs to be done to support the development of the possible consequences of allowing specialist SEN inclusive education across the country, especially when academies to admit children without an ECH plan. That half of our disabled children and young people with seems to run counter to the principle of inclusion and SEN are still being placed in segregated educational it also seems dangerous to admit children without that provision. comprehensive assessment of their specific needs. I hope I am very concerned that without an explicit duty, that the Minister will respond positively to that point. local authorities will become complacent—and, more When the noble Lord, Lord Low, moved Amendment worryingly, will revert to the practice of investing 16A in Committee, he rightly said that although the increasingly limited resources in existing segregated, code of practice had improved guidance on inclusion, rather than inclusive, educational provision. For instance, in the Bill as it stands, inclusion is not referred to Kent County Council is already investing heavily in anywhere. Given the commitment of the Government special school provision. Nigel Utton, a Kent County and of noble Lords across this House to increase Council primary school head teacher and the chair of access to mainstream schools and to act in accordance Heading for Inclusion, is quoted as saying: with the recommendations of the JCHR, it seems very “About half the children with statements in Kent are in special odd that this overarching principle is not enshrined in schools, with so much resource being targeted at special provision the legislation. (not to mention the huge transport costs incurred) mainstream schools are left with a very small proportion of the special needs The purpose of the amendment is to insert that budget. The pressure on mainstream schools to achieve high general principle alongside other general principles academic standards, combined with budgetary pressures, is forcing that are included in the Bill. As the noble Baroness, many to not accept children with SEND statements or to persuade Lady Warnock, has said, this is not about pushing parents to leave”. inclusion above everything else; it is about parental Such investment in special schools is not compatible choice. At the moment, because local authorities and with the Government’s Article 24 obligations. One schools have not moved far enough towards making such obligation is to develop and promote inclusive mainstream schools accessible to disabled children, education across the country by building the capacity many children are denied that choice. of mainstream schools to support the inclusion of Clause 19 sets out other key principles to which disabled learners. The situation will only worsen if the local authorities must have regard in fulfilling their Bill, and the draft SEN code of practice, do not obligations under Part 3: the wishes and feelings of include the explicit duty to promote inclusive education children and their parents; the importance of child practice. I urge noble Lords to support the amendment. and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. Baroness Lister of Burtersett (Lab): My Lords, I am But equally important, I would argue, is the principle glad to be able to follow my noble friend, who has that local authorities should seek to maximise the made a powerful case. As a member of the Joint opportunities for inclusion. Committee on Human Rights, I simply want to put on record my thanks to the noble Lord, Lord Low, for As the noble Lord, Lord Low, told us, when the taking the committee’s recommendation forward and Minister was arguing against the amendment in for making the case for it so cogently. The committee Committee, he said that the Bill maintained the general saw this as a matter of principle. It is a principle that principle of inclusion in a number of other provisions the Government do not disagree with, and I am at a and went on to list some of them. He also said that loss as to why they have been so resistant to accepting schools and colleges had important duties under the that it should be in the legislation. I hope that the Equality Act and he told us about other measures that Minister will think again. the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Baroness Whitaker (Lab): My Lords, I support the Government would not accept this amendment alongside amendments, because inclusion, which we all want to the other general principles that appear on the face of promote, still has to be fought for. That is why it ought the Bill. If the Minister is not minded to accept the to be in the Bill. I was on the boards of several special amendment today, I hope that he will not rehearse schools where some children were, I have to say, “parked”. that information as we have already heard it and it is On the other hand, I noticed the beneficial effects of on the record. What we really want to know is why he children with disabilities being accommodated in will not accept the general principle of inclusion sitting mainstream schools—not only on the child in question alongside the other principles in Clause 19. That would but on the other children, who then have the opportunity send a strong signal to all educational settings, and to to learn how to behave towards them, which they take. local authorities, that they must up their game and Children do not always bully other children with move closer and faster to being able to offer places to 1187 Children and Families Bill[LORDS] Children and Families Bill 1188

[BARONESS HUGHES OF STRETFORD] and to make reasonable adjustments to their policies disabled children. That would catalyse a very positive and practices. Indeed, it was this Government, in and marked shift. I hope that the Minister will accept 2012, who included schools in the provision of auxiliary the amendment today. aids and services, such as specialised computer programmes, sign language interpreters and hoists, The Parliamentary Under-Secretary of State for Schools within the reasonable adjustments duty under the (Lord Nash): I thank the noble Lord, Lord Low, and Equality Act. I made a commitment in Grand Committee the noble Baronesses, Lady Warnock and Lady Wilkins, to look at the scope for improving the links to the for tabling Amendment 16A, and the noble Baroness, Equality Act duties in the SEN code of practice and Lady Howe, for tabling Amendment 34A. I had an I am happy to reaffirm that commitment now. extremely helpful meeting with the noble Lord, Lord We have previously discussed the inclusive schooling Low, and the noble Baronesses, Lady Howe and Lady guidance. One of the striking findings in the responses Wilkins, recently, and I am grateful to them for helping to the Green Paper Support and Aspiration was that me to understand these issues. As noble Lords know, nearly half of those who responded to a question they are, of course, immensely knowledgeable on this about the guidance did not know that it existed. That matter. They have spoken eloquently about an issue is why we put the key elements of it into the code that I know is important to many in this House—inclusive of practice. I am happy to consider how the code of provision for children and young people who have practice can be further improved in that regard. In SEN or are disabled. We have had an informed and view of all that, we do not believe that it is necessary passionate debate. to add to the principles in Clause 19 to fulfil our Amendment 16A picks up a recommendation from commitments under the UN convention. The principles the Joint Committee on Human Rights, as the noble in Clause 19 are designed to underpin the key features Baroness, Lady Lister, a member of the committee, of the reforms, placing the views, wishes and feelings mentioned. The Joint Committee welcomed the Bill as of children, young people and parents at the heart of containing, the system and placing a focus on improving outcomes. “a number of provisions which … enhance the UK’s implementation They apply irrespective of where children and young of some of the relevant rights of children and young people”. people are educated. Those include the general principles in Clause 19; the We have heard in other debates about the important extension of education, health and care plans to young role that specialist provision plays in supporting disabled people up to 25; the requirement for academies to be children and young people and those with SEN. The covered directly by the statutory framework for SEN; noble Lord, Lord Low, referred to the importance to the duty to provide SEN information to children and parents of having that choice. Amendment 16A could young people; the measures to ease transition from run the risk of being perceived as a threat to specialist children’s to adult services; the explicit reference to provision and as encouragement to local authorities assist in preparation for independent living in a local not to place children and young people in specialist offer; and the provision of direct rights of appeal for provision where that is appropriate for meeting their young people and the proposed piloting of children’s needs and where parents wish it, and could threaten rights of appeal. However, the Joint Committee felt the viability of high-quality provision for children and that including a principle on inclusive provision in young people with SEN. I know that that is not in any Clause 19 would demonstrate the Government’s way the purpose of the amendment, but it is an commitment, under the UN Convention on the Rights example of the kind of balance of arguments that we of Persons with Disabilities, to the progressive realisation have to weigh. of the right to inclusive education. The Government take very seriously their commitment I make it clear at the outset that the Government to the convention. In addition to the provisions in the are fulfilling their commitments under the UN convention. Bill and the government amendments on disabled The Bill maintains the general principle of inclusion children and young people that we will be debating and does so through some of its key provisions. It later, we have taken a number of practical steps to places duties on schools and colleges to use their best build the capacity of mainstream schools and colleges endeavours to ensure that those with SEN get the to support children and young people who have SEN support they need and holds a presumption for inclusion or are disabled. I spoke about these in Grand Committee. in relation to choice of schools and colleges through The noble Lord, Lord Low, referred to them as “soft Clause 33. However, it also recognises that children measures”, but I would not describe them as such. and young people have different needs and different They are certainly extensive. I will not go through preferences for where they wish to be educated, including them in detail, because I know that noble Lords have specialist settings such as special schools and independent heard this before. However, we have invested considerable specialist colleges. That is entirely consistent with the sums of money in training: there are over 10,000 new reservation and interpretative declaration that the SEN co-ordinators, a number of schemes to develop Government made to Article 24 of the UN convention the training of SEN, we have made grants to the recognising special schools as part of the general Institute of Education, and we are involved in many schools system. other projects. Beyond the Bill, as we have discussed in previous Chapter 6 of the draft SEN code of practice provides debates, local authorities, schools and colleges have strong guidance to all mainstream early-years settings, important duties under the Equality Act 2010 to prevent schools and colleges to ensure they have high expectations discrimination against disabled people, to promote for all pupils and students, provide high-quality teaching, equality of opportunity, to increase access over time have clear systems for identifying those who need 1189 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1190 additional support and provide that support as quickly should be supported by a relevant professional opinion, as possible. We make it clear that schools are responsible such as that of an educational psychologist. Of course, for setting their own priorities for the continuous parents of young people will continue to have the right professional development of their staff and we recognise to ask for a statutory assessment of their child’s needs the key role played by the SEN co-ordinator in this to be undertaken and a right of appeal to the tribunal and in other ways. In addition, as noble Lords know, if the local authority decides not to carry one out. The the Bill now includes a new clause on supporting academy would also have to adopt fair practices to children with health conditions. Noble Lords will see such admissions in line with the principles of the that a number of government amendments have now school admission code. We would take very seriously been tabled to include disabled children and young indeed any instances where these freedoms were people with SEN in the scope of a number of key being abused. Very significantly, the new secondary provisions in the Bill. I will speak about those amendments accountability, the best eight progress measures, will shortly. become the main measure by which we assess the On Amendment 34A, tabled by the noble Baroness, performance of all maintained schools and academies. Lady Howe, I understand her concerns and those of This new approach will strip away the previous perverse other noble Lords about the provisions in Clause incentives and will hold schools to account for the 34(9), but I hope to reassure them. Clause 34(9) would progress made by all their pupils, not just blunt measures enable a child or young person with special educational of absolute attainment at grade C. This will move needs but without an EHC plan to be admitted to an schools that have focused too much on those pupils individual special academy or special post-16 academy who can achieve a C grade to focus on the progress of whose academy arrangements permit this. The admission all their pupils and should particularly benefit SEN of children or young people without EHC plans to pupils in those schools. special academies or special post-16 academies would be limited to those academies where the Secretary of 6.30 pm State for Education had specifically agreed to permit There can be no greater demonstration of the that in the funding agreement in relation to specific Government’s commitment to reducing exclusion than types of children. our school exclusion trial, a very hard measure, taking I reiterate what I said when we debated this issue in place in 11 local authorities with approximately 180 schools Committee. This is not a blanket policy and it is also participating. This is aimed at schools taking more definitely not part of any dark plan. On the contrary, responsibility for pupils at risk of exclusion and ranges the Government’s intention is to facilitate innovative from schools committing to avoid any permanent new approaches and provision for the benefit of children exclusion, as in Darlington, Hartlepool, Redcar and and young people with SEN. The Secretary of State Cleveland, to, in Wiltshire, the responsibility for would look carefully at the detail of any proposal permanently excluded children transferring from the made by a special academy or special post-16 academy local authority to the school. and would consider its educational merits and viability. Clause 34(9) is designed to improve provision for Indeed, we have approved 16 free special schools. All those without plans and reflects the Government’s are able, as things stand, to apply to the Secretary of general desire to encourage innovation and promote State to have the competence within their funding greater choice and flexibility in their free schools and agreements to admit non-statemented pupils. That is academies programme. We will make sure that it the status quo. Only one has so applied. They were contributes to that improvement and that the above approved to admit, on a temporary basis only, children safeguards are in place to address the concerns expressed with autistic spectrum disorder or with specific by noble Lords. communication and language difficulties, but as far as I fully understand the objectives of the amendment. we know none has been so admitted. I hope I have been able to persuade noble Lords of the Concerns have been expressed by the noble Lord, Government’s commitment to improving education Lord Low, the noble Baroness, Lady Howe, and others provision for all children and young people and specifically that children and young people might be forced into to fulfilling their obligations under the UN Convention special provision and parents coerced by local authorities on the Rights of Persons with Disabilities and of the into placing their children in special schools. We will case for keeping the principles in Clause 19 as they are. ensure safeguards against that are in place. First, the I hope, too, that I have been able to reassure noble relevant academy’s funding agreement must stipulate Lords that the provision in Clause 34(9) is there to that the special academy or special post-16 academy encourage innovation and promote greater choice and could admit only children or young people without flexibility for the benefit of children and young people plans who had a particular type of SEN set out in the with SEN, and that the safeguards we have put in agreement. Changes that suggested reducing the number place will guard against any potential problems envisaged. of places for children with statements to enable the In view of these assurances and the commitment I admission of children without statements would not have given in relation to strengthening the guidance in be approved unless the case was supported by the local the code of practice, I urge the noble Lord, Lord Low, authority, by parents, and a lack of demand for to withdraw the amendment. statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the Lord Low of Dalston: My Lords, I thank all those academy only if their parents or the young person had who have spoken. They all spoke in support of my applied to go to it. Thirdly, the child or young person amendment except of course the Minister. I thank the should have those particular needs and their admission Minister for his full response. However, I have to say 1191 Children and Families Bill[LORDS] Children and Families Bill 1192

[LORD LOW OF DALSTON] Clancarty, E. Kinnock, L. that I am not entirely persuaded by it. It was not a real Clark of Windermere, L. Knight of Weymouth, L. advance on what we heard from the Minister in Grand Clarke of Hampstead, L. Laming, L. Committee. In moving the amendment I think I showed Clinton-Davis, L. Lawrence of Clarendon, B. Collins of Highbury, L. Layard, L. that that was inadequate and that we still needed the Condon, L. Lea of Crondall, L. amendment. Corston, B. Levy, L. As I heard him, he has not said anything very Coussins, B. Liddell of Coatdyke, B. different in substance today. He said that children Craigavon, V. Liddle, L. Crawley, B. Lipsey, L. have a variety of different special educational needs. Davidson of Glen Clova, L. Lister of Burtersett, B. That is right. These include a need for special school Davies of Coity, L. Low of Dalston, L. placement. In moving the amendment, I went out of Davies of Oldham, L. Lytton, E. my way to make it clear that nothing in the amendment Davies of Stamford, L. McAvoy, L. is inimical to special school placement. The amendment Dean of Thornton-le-Fylde, McConnell of Glenscorrodale, follows the language of the Government’s own B. L. Derby, Bp. McDonagh, B. interpretative declaration when they entered their Donaghy, B. Macdonald of Tradeston, L. reservation to the UN convention. Therefore, there Donoughue, L. McFall of Alcluith, L. should not really be anything in the amendment that Drake, B. McIntosh of Hudnall, B. would be difficult for the Government to swallow. Drayson, L. MacKenzie of Culkein, L. Dubs, L. McKenzie of Luton, L. Like the noble Baroness, Lady Lister, I do not see Elder, L. Maginnis of Drumglass, L. what is causing the Government so much difficulty Elystan-Morgan, L. Mandelson, L. about this. But I want to make it clear that I do not Evans of Parkside, L. Mar, C. feel embattled. I moved the amendment not in a spirit Evans of Temple Guiting, L. Martin of Springburn, L. of ideological embattlement or to provide a further Falkland, V. Masham of Ilton, B. Farrington of Ribbleton, B. Maxton, L. chapter in the history of passionate and sometimes Faulkner of Worcester, L. Mendelsohn, L. bitter arguments between adherents of inclusive and Fellowes, L. Mitchell, L. special education. I see it as much more a matter of Filkin, L. Monks, L. good legislative housekeeping, in which we get the Ford, B. Moonie, L. appropriate principles on the face of the Bill to drive Foster of Bishop Auckland, L. Morgan of Ely, B. Foulkes of Cumnock, L. Morris of Aberavon, L. their amplification in secondary legislation and guidance. Gale, B. Morris of Handsworth, L. As I have made clear, the code of practice as so far Gibson of Market Rasen, B. Morrow, L. drafted, although a considerable improvement on the Giddens, L. Noon, L. outline draft which was initially circulating, is still Glasman, L. Norwich, Bp. woefully defective compared with the guidance on Goudie, B. Nye, B. Gould of Potternewton, B. O’Loan, B. inclusion, which we have at present. The code, as so Grantchester, L. O’Neill of Clackmannan, L. far drafted, is a real step backwards in this area. I feel Grenfell, L. Palmer, L. very strongly, not as a matter of special education Grocott, L. Pannick, L. ideology, but as a matter of legislative housekeeping, Hanworth, V. Parekh, L. that we need something like this amendment on the Hardie, L. Patel of Blackburn, L. face of the Bill in order to drive the major strengthening Harris of Haringey, L. Patel of Bradford, L. Harrison, L. Pendry, L. of the code of practice on inclusion which is required. Hart of Chilton, L. Pitkeathley, B. In that quite moderate and not embattled spirit, Haworth, L. Ponsonby of Shulbrede, L. I nevertheless wish to test the opinion of the House. Hayter of Kentish Town, B. Prashar, B. Healy of Primrose Hill, B. Prescott, L. Hennessy of Nympsfield, L. Prosser, B. 6.37 pm Hollins, B. Quin, B. Hollis of Heigham, B. Radice, L. Division on Amendment 16A Hope of Craighead, L. Ramsbotham, L. Howarth of Newport, L. Rea, L. Contents 205; Not-Contents 222. Howe of Idlicote, B. Reid of Cardowan, L. Howells of St Davids, B. Rendell of Babergh, B. Howie of Troon, L. Richard, L. Amendment 16A disagreed. Hoyle, L. Robertson of Port Ellen, L. Hughes of Stretford, B. Rogan, L. Division No. 2 Hughes of Woodside, L. Rooker, L. Hunt of Chesterton, L. Rosser, L. Hunt of Kings Heath, L. Rowe-Beddoe, L. CONTENTS Hylton, L. Rowlands, L. Aberdare, L. Berkeley, L. Irvine of Lairg, L. Royall of Blaisdon, B. Adams of Craigielea, B. Billingham, B. Janvrin, L. St John of Bletso, L. Adonis, L. Blackstone, B. Jones of Moulsecoomb, B. Sandwich, E. Allen of Kensington, L. Blood, B. Jones of Whitchurch, B. Scotland of Asthal, B. Alton of Liverpool, L. Borrie, L. Jones, L. Scott of Foscote, L. Anderson of Swansea, L. Bradley, L. Jordan, L. Sherlock, B. Andrews, B. Brookman, L. Judd, L. Simon, V. Armstrong of Hill Top, B. Brown of Eaton-under- Kennedy of Cradley, B. Smith of Basildon, B. Bach, L. Heywood, L. Kennedy of Southwark, L. Smith of Finsbury, L. Bakewell, B. Browne of Ladyton, L. Kennedy of The Shaws, B. Smith of Leigh, L. Bassam of Brighton, L. Cameron of Dillington, L. Kerr of Kinlochard, L. Snape, L. [Teller] Carter of Coles, L. Kilclooney, L. Soley, L. Beecham, L. Christopher, L. Kinnock of Holyhead, B. Stevenson of Balmacara, L. 1193 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1194

Stoddart of Swindon, L. Warner, L. Lang of Monkton, L. Razzall, L. Stone of Blackheath, L. Warnock, B. Lawson of Blaby, L. Redesdale, L. Symons of Vernham Dean, B. Watson of Invergowrie, L. Lee of Trafford, L. Rennard, L. Taylor of Blackburn, L. Wheeler, B. Leigh of Hurley, L. Ridley, V. Taylor of Bolton, B. Whitaker, B. Lester of Herne Hill, L. Risby, L. Temple-Morris, L. Lexden, L. Roberts of Llandudno, L. Whitty, L. Thornton, B. Lindsay, E. Roper, L. Tonge, B. Wigley, L. Lingfield, L. Sassoon, L. Tunnicliffe, L. [Teller] Wilkins, B. Linklater of Butterstone, B. Seccombe, B. Turnberg, L. Williams of Elvel, L. Liverpool, E. Selborne, E. Turner of Camden, B. Wills, L. Livingston of Parkhead, L. Selkirk of Douglas, L. Uddin, B. Winston, L. Loomba, L. Selsdon, L. Wall of New Barnet, B. Wood of Anfield, L. Lucas, L. Shackleton of Belgravia, B. Walpole, L. Young of Norwood Green, L. Luke, L. Sharkey, L. MacGregor of Pulham Sharp of Guildford, B. Market, L. Sheikh, L. NOT CONTENTS McNally, L. Shephard of Northwold, B. Addington, L. Eccles of Moulton, B. Maddock, B. Sherbourne of Didsbury, L. Ahmad of Wimbledon, L. Eccles, V. Magan of Castletown, L. Shipley, L. Alderdice, L. Elton, L. Manzoor, B. Shrewsbury, E. Allan of Hallam, L. Empey, L. Mar and Kellie, E. Shutt of Greetland, L. Anelay of St Johns, B. [Teller] Falkner of Margravine, B. Marks of Henley-on-Thames, Spicer, L. Armstrong of Ilminster, L. Faulks, L. L. Steel of Aikwood, L. Arran, E. Feldman of Elstree, L. Marland, L. Stephen, L. Ashdown of Norton-sub- Fink, L. Marlesford, L. Stewartby, L. Hamdon, L. Finkelstein, L. Mayhew of Twysden, L. Stirrup, L. Ashton of Hyde, L. Flight, L. Methuen, L. Storey, L. Astor of Hever, L. Fookes, B. Miller of Chilthorne Domer, Stowell of Beeston, B. Astor, V. Forsyth of Drumlean, L. B. Suttie, B. Attlee, E. [Teller] Fowler, L. Montrose, D. Taylor of Goss Moor, L. Avebury, L. Framlingham, L. Moore of Lower Marsh, L. Taylor of Holbeach, L. Bakewell of Hardington Freeman, L. Morris of Bolton, B. Teverson, L. Mandeville, B. Freud, L. Moynihan, L. Thomas of Gresford, L. Balfe, L. Garden of Frognal, B. Nash, L. Trefgarne, L. Barker, B. Gardiner of Kimble, L. Neville-Jones, B. Trimble, L. Bates, L. Gardner of Parkes, B. Neville-Rolfe, B. True, L. Benjamin, B. Garel-Jones, L. Newby, L. Tyler of Enfield, B. Berridge, B. Geddes, L. Newlove, B. Ullswater, V. Black of Brentwood, L. German, L. Noakes, B. Vallance of Tummel, L. Blackwell, L. Glasgow, E. Northbrook, L. Verjee, L. Blencathra, L. Glenarthur, L. Northover, B. Verma, B. Bonham-Carter of Yarnbury, Glentoran, L. Norton of Louth, L. Wakeham, L. B. Goodlad, L. Oakeshott of Seagrove Bay, L. Wallace of Tankerness, L. Borwick, L. Grade of Yarmouth, L. Oppenheim-Barnes, B. Walmsley, B. Bottomley of Nettlestone, B. Greaves, L. Paddick, L. Warsi, B. Bowness, L. Greenway, L. Palmer of Childs Hill, L. Wasserman, L. Brabazon of Tara, L. Grender, B. Patel, L. Wei, L. Bradshaw, L. Hamilton of Epsom, L. Patten, L. Wheatcroft, B. Brinton, B. Hanham, B. Perry of Southwark, B. Whitby, L. Brooke of Sutton Mandeville, Henley, L. Phillips of Sudbury, L. Williams of Crosby, B. L. Heyhoe Flint, B. Popat, L. Williams of Trafford, B. Brookeborough, V. Hill of Oareford, L. Purvis of Tweed, L. Willis of Knaresborough, L. Brougham and Vaux, L. Hodgson of Abinger, B. Randerson, B. Wrigglesworth, L. Browning, B. Hodgson of Astley Abbotts, Rawlings, B. Younger of Leckie, V. Burnett, L. L. Buscombe, B. Holmes of Richmond, L. 6.49 pm Butler-Sloss, B. Hooper, B. Caithness, E. Horam, L. Carrington of Fulham, L. Howard of Lympne, L. Amendment 17 Cathcart, E. Howard of Rising, L. Cavendish of Furness, L. Howarth of Breckland, B. Moved by Baroness Hughes of Stretford Chalker of Wallasey, B. Howe of Aberavon, L. Chidgey, L. Howe, E. 17: After Clause 19, insert the following new Clause— Clement-Jones, L. Howell of Guildford, L. “Children and young people with special educational needs Colwyn, L. Hunt of Wirral, L. Cope of Berkeley, L. Hussain, L. For the purposes of sections 22, 24, 25, 26, 27, 30, 32 and 62 Cormack, L. Hussein-Ece, B. of this Act, the term “children and young people with Courtown, E. Inglewood, L. special educational needs” will be interpreted to include Crickhowell, L. James of Blackheath, L. children and young people with a disability under the De Mauley, L. Jenkin of Kennington, B. Equality Act 2010.” Deben, L. Jenkin of Roding, L. Deighton, L. Jolly, B. Dholakia, L. Kakkar, L. Baroness Hughes of Stretford: My Lords, Amendment 17 Dixon-Smith, L. King of Bridgwater, L. would, for the purposes of Sections 22, 24, 25, 26, 27, Dobbs, L. Kirkwood of Kirkhope, L. Doocey, B. Knight of Collingtree, B. 30, 32 and 62 of Part 3, include children with a disability, Dykes, L. Kramer, B. under the Equality Act. It would interpret children Eaton, B. Lamont of Lerwick, L. and young people with SEN to include children and 1195 Children and Families Bill[LORDS] Children and Families Bill 1196

[BARONESS HUGHES OF STRETFORD] Following the debate, the Every Disabled Child young people with a disability as well. The Government Matters campaign sent some very helpful advice to the have tabled a number of amendments, I think, to department in which it said: achieve the same thing. “The Government rightly made the point in the debate yesterday I will be very brief as this is not now contentious, that disabled children and young people are already protected by given that the Government have moved on the issue, a range of other legislation, such as the Equality Act 2010, the but my amendment would ensure that key clauses that NHS Act 2006 and the Children Act 1989. relate to identifying children with needs, duties of the We would like to stress that our concern is not about the rights health authority, joint commissioning arrangements, of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level the duty to keep provision under review, the local they are protected under the Equality Act 2010 and other legislation. offer, advice and information for parents and so on Our concern is about disabled children and young people as a would all now apply equally to disabled children without group not being included in the joint commissioning arrangements, a special educational need under the terms of the review functions, and local offer duty”. Equality Act. This is important, not only in principle, It went on to suggest which clauses in the Bill might be but also in its practical effects, particularly for the amended to achieve this— Clauses 22, 24, 25, 26, 27, local offer, which we will debate later on Report. The 30 and 32—and drafted a single amendment to deliver local offer is particularly important for children with a this. I am grateful to the noble Baronesses, Lady disability but without a special educational need because Hughes of Stretford and Lady Jones of Whitchurch, that is now to be the only way in which they can get for their amendment, which is largely based on the services that they and their families need. It is very Every Disabled Child Matters amendment. important for the local offer, particularly Clause 26 We agree with Every Disabled Child Matters that on the joint commissioning arrangements between the clauses identified should be amended. However, health education and social care. When they are our view is that, by relating the provision for disabled looking at what is needed in an area they will have to children and the young people to special educational take into account the needs of all children with a provision, a single amendment would not deliver the disability, including those without a special educational outcome that we all want, and that we need to amend need, which was not the case under the Bill as it was each clause. drafted. Clause 22 would be amended to require local authorities I very much welcome the Government’s concession to exercise their functions with a view to identifying here, as far as it goes. The Minister knows that I would both the children and young people with SEN and have preferred to have an amendment to apply the disabled children and young people. Clause 24 would whole of Part 3 to children with a disability as well. be extended to require health bodies to inform the That would have achieved a truly inclusive, integrated child’s parents and their local authority where they are and comprehensive system for all disabled children, of the opinion that a child under compulsory school whatever their disability and whatever the extent of age has, or probably has, a disability. Clause 25 would their need. Many feel that this was the promise of the now require local authorities to exercise their functions Green Paper. However, we have come part way and with a view to ensuring the integration of education that is to be welcomed. and training provision with healthcare provision and Turning to the government amendments, I think social care provision for children and young people that my Amendment 17 has the advantage of being with SEN and disabled children and young people, completely comprehensible when you read it, but the where they think that this would promote their well-being, 40-odd government amendments are not so easily including in relation to their participation in education, understood. I understand that it has been done in this training and recreation. In Clause 26, the duties on way to achieve a more comprehensive effect and I look local authorities and their partner commissioning bodies forward to the Minister explaining that. I beg to move. to make joint arrangements for the commissioning of education, health and care provision for children and Lord Nash: My Lords, it may be helpful if I outline young people with SEN would be amended to include our government amendments in this group to enable disabled children and young people. noble Lords to have a debate if they wish to. In Grand Clause 27, which currently requires local authorities Committee we had an extensive debate about the to keep under review the special educational provision support for disabled children and young people and and social care provision for those with SEN, would I know that this is an issue on which the noble be extended to cover provision for disabled children Baroness, Lady Hughes, has reflected deeply, as have and young people. They will broaden it to cover all I since then. Many Peers expressed concern that education and training provision, not just special disabled children and young people without SEN educational provision, for children and young people would miss out on the benefit of our reforms and, at who have SEN or are disabled. the time of the debate, I introduced a government The amendments also require local authorities to amendment to require schools to make arrangements consult disabled children and young people and their for supporting children with medical needs. I also parents when carrying out that duty. The provisions in asked for help from noble Lords in understanding the local offer would include disabled children and which groups of disabled children would not be supported young people, both in relation to the information to be by this Bill, the government amendment in respect of published and in developing and reviewing the local children with medical needs, the provisions of the offer and publishing comments. In Clause 32, the Equality Act 2010 and Part 3 of the National Health requirement on local authorities to arrange for young Service Act 2006. people with SEN and parents of children with SEN to 1197 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1198 receive advice and information on SEN would be Royal College of Speech and Language Therapists, extended to include provision for disabled young people which kindly shared and discussed its legal advice with and the parents of disabled children to be provided the department. We have taken that advice into account with information about matters related to disability. I in drafting government Amendment 17A, which we have also tabled an amendment, which we shall come believe would maintain the position established in case to later, to extend the requirement to cover children law that we all seek. themselves as well as their parents. Clause 73 would In our view, a local authority and, where relevant, a make it clear that the definition of disability applied to tribunal, in considering whether healthcare provision the provisions covered by these government amendments or social care provision was to be treated as special is that in the Equality Act 2010. educational provision, would ask themselves whether Noble Lords will also be aware from commitments it was educational, taking the approach set out in the that I made in Committee that we are looking at ways current SEN code of practice in respect of speech and of strengthening links to the Equality Act duties, language therapy. We have carried this into the new including those to make reasonable adjustments in the landscape of the Bill in relation to education and SEN code of practice. The amendments that I am training. We believe that our wording is expressed a speaking to today will sharpen the focus on the Equality little more simply than the amendment of the noble Act duties considerably. Since the code of practice is Lord, Lord Ramsbotham, and that it is consistent statutory, the guidance that it provides cannot be with the present approach. I beg to move. ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are 7pm reassured by these amendments. The Countess of Mar: My Lords, unfortunately my noble friend Lord Ramsbotham cannot be in his place Baroness Hughes of Stretford: My Lords, I thank to speak to his Amendment 18, and he has asked me the Minister for his explanation and I beg leave to to do so on his behalf. withdraw the amendment. He tabled this amendment to try to ensure that, alongside the recognition that speech, language and Amendment 17 withdrawn. communication needs are special educational needs for an increasing number of children and young people Amendment 17A in this country, speech and language therapy retains Moved by Baroness Northover its status as a special educational provision. This is important for two reasons. First, under the new SEN 17A: Clause 21, page 20, line 16, leave out subsection (5) and system, parents of children with EHC plans can appeal insert— to the Special Educational Needs and Disability Tribunal “(5) Health care provision or social care provision which only if this therapy is recognised as special educational educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or provision. Therefore, it is vital that speech and language social care provision).” therapy, officially a healthcare provision, retains its educational status. Secondly, as originally drafted, speech Baroness Northover (LD): My Lords, I would like and language therapy could be left out of an EHC to speak to the group containing government plan on the basis that it is not “reasonably” required. Amendment 17A and Amendment 18, tabled by the My noble friend is pleased to see that in Amendment 17A noble Lord, Lord Ramsbotham. Both amendments the Government appear to have recognised this; he is seek to set out the circumstances in which provision therefore pleased to accept the government amendment that would otherwise be health or social care provision and for Amendment 18 not to be moved. should be treated as special educational provision. The Government have consistently given an undertaking Baroness Howarth of Breckland: My Lords, I have a to maintain existing protections for parents in the simple question about this. Having been sick last week, new system. Clause 21(5) was drafted as part of that I may have missed the answer in all the mass of undertaking. It sought to replicate as far as possible information that usefully comes from the department. the case law established under the present SEN legislation, Again, it is a question about implementation, as my which in our view makes it clear that health provision, questions usually are. When anything classified as such as therapies, can be educational, non-educational, social care and health becomes an education provision, or both, depending on the individual child and the it will be financed. However, how will it be financed in nature of the provision. Case law has established, in a college for disabled youngsters where there are myriad particular, that since communication is so fundamental therapists, who might be physiotherapists or speech in education, in addressing speech and language therapists, or where the youngsters may have a residential impairment it should normally be treated as educational social care provision in the same place but that is provision unless there are exceptional reasons for doing linked to the education? That is rather crucial—almost otherwise. We have reflected this in section 7.9 on page more crucial than the legislation. 109 of the draft SEN code of practice. We all share the aim of carrying the current established Baroness Morgan of Ely (Lab): My Lords, I speak position through into the new system, but this is in support of Amendment 18 in my name and that of complicated legal territory and it has not been the noble Lord, Lord Ramsbotham. straightforward to find the right formulation. We are There are countless examples of parents around the grateful to the noble Lord, Lord Ramsbotham, for his country who have had to fight for special educational personal interest here and for his involvement with the provision for their children. Of course, this is much 1199 Children and Families Bill[LORDS] Children and Families Bill 1200

[BARONESS MORGAN OF ELY] 18B: Clause 22, page 20, line 25, at end insert “, and easier to pursue for middle-class, articulate parents (b) all the children and young people in its area who have a compared with those from poorer households, but the disability.” need for clarity about what provision is available and who should provide these services is essential for all Amendments 18A and 18B agreed. parents who need extra help for their children, irrespective of background. The problem is that, rather than clarifying the Amendment 18C position on special educational provision and ensuring Moved by Baroness Wilkins the Government’s stated intention of carrying the current established position into this Bill, the wording 18C: After Clause 22, insert the following new Clause— of the clause in the original draft set a higher threshold “Data on the number of children and young people with than that which currently exists—a danger identified special educational needs and disabilities by the sector and expert lawyers. Therefore, healthcare (1) A local authority in England must publish information provision and social care provision could be defined annually within the local offer on the number of children and only as special educational provision if, young people in its area who have special educational needs and disabilities. “made wholly or mainly for the purposes of ... education or training”. (2) Information under subsection (1) must be published by type of special educational need and disability.” If the healthcare provision or social care provision did not directly enhance the education or training of the child, it could not be considered to be special educational Baroness Wilkins: My Lords, I hope that the provision; it would simply be defined as healthcare Government will agree to this amendment. Clause 22 provision or social care provision. requires local authorities to identify children with I shall not go into the details here of why that special educational needs. This amendment would require makes a difference, as those were rehearsed in Committee, the local authority to publish these data within its but, thankfully, the Government have acknowledged formal offer. I have tabled the amendment because I the concerns of Peers and have introduced new wording am concerned about the availability of good-quality as a result of opposition to the initial draft. There was data on children with SEN and disabilities. It is an still, however, concern around this new wording, which important issue, which could well determine the success is why the Government have moved even further to of the Government’s proposed reforms. amend the language. Accurate data on the number of children in their We have come a long way on this clause. We are grateful area is vital for local authorities effectively to plan and to the Government for that and we would like to deliver services. The draft SEN code of practice, recognise the work of the noble Lord, Lord Ramsbotham, particularly in the section on joint commissioning, the Royal College of Speech and Language Therapists outlines the importance of local data sets in identifying and David Wolfe QC. On the whole, I welcome the the needs of children with SEN and in informing their fact that, on this issue the Government have listened decision-making. Without good-quality data, it is difficult to our concerns, and I, too, will be happy not to press to see how the Government or local authorities can our amendment. effectively plan and commission services for children with SEN and disabilities. It also means that we have a Baroness Northover: My Lords, I thank the noble very weak basis on which to determine the long-term Countess, Lady Mar, for putting the noble Lord’s case. impact of these changes. He is indeed a doughty fighter, as we all know. I am mightily relieved that he is pleased that the Government I am pleased to see that the Government will be have put forward this amendment and that he is therefore amending the Bill so that local authorities have a clear happy for his amendment not to be moved. duty to identify children with disabilities, as well as I also thank the noble Baroness, Lady Morgan, for those with SEN. However, there is compelling evidence what she has said. I assure the noble Baroness, Lady that existing data sets are failing accurately to identify Howarth, that joint commissioning will ensure that all children with SEN and disabilities. Currently, data arrangements are in place to cover the financing. I will from different sources for the same area can vary widely. write to her with all the details. Using deafness as an example, I know that different figures on the number of deaf children vary by as At this stage of the evening, I am extremely glad that much as 30,000: according to the disability register, we all appear to agree. Clearly, it will very soon be there are 7,500 deaf children; according to the school Christmas. census, there are 16,000; and, according to the National Amendment 17A agreed. Deaf Children’s Society’s survey of all 152 local authorities in England, there are 37,500 deaf children. Amendment 18 not moved. Sense has also identified a widespread failure accurately Clause 22: Identifying children and young people with to identify numbers of children who are deafblind. In special educational needs the local authority of Kensington and Chelsea, Sense has found that, according to the prevalence data, there Amendments 18A and 18B should be around 10 deafblind children. However, the local authority has identified four. How many have Moved by Baroness Northover been identified by the school census? The answer is 18A: Clause 22, page 20, line 24, after “identifies” insert “— none. These children urgently need specialist SEN (a) ” support, so why is the system not capturing them? 1201 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1202

In Grand Committee, the Minister enumerated the department? It is also clear that the information needed various sets of data that are published but failed to to be collected in order that we might get effective acknowledge that the existing data sets are inadequate. planning and commissioning is spread out over different For example, the Special Educational Needs in England data sets. It would be helpful to know what is being report does not cover all children with SEN and so done to bring together the information to be found all misses more than 40% of school-age deaf children. A over the place in different places to ensure that we get single data set is needed to bring together all the data well informed commissioning and decision-making. from different sources into a format which would Finally, does the Minister know whether the ensure well informed commissioning decisions. department will take in hand the co-ordination of all It is difficult to see how the Minister’s department the data required, or will that be left to local authorities? will meet the ambitions set out in the Bill unless we If it is going to be left to 152 different local authorities, have a reliable and single data set that accurately it is difficult to see how the department will be able to captures all children with an SEN and disability. The meet the ambition set out in the Bill to improve current state of affairs cannot be allowed to continue commissioning without the data sets being improved. whereby 152 local authorities are left failing correctly Does the Minister agree that it would be better for the to identify and record all children with SEN and department to co-ordinate this area of work rather disabilities. I hope that the Minister will give the than leave it to 152 local authorities? If it is left to the House reassurance that the urgency of this matter is local authorities, it is hard to believe that we will get a recognised and that work is in hand to ensure that coherent solution. There are bound to be variations commissioning can rely on accurate data before this and the data is bound to remain very patchy. Therefore, Bill comes into force. I beg to move. it would be very valuable if the department would take a stronger hand in co-ordinating this work and in Baroness Howe of Idlicote: My Lords, I support the making sure that we get the data that we need to have amendment tabled by the noble Baroness, Lady Wilkins. in order that the reforms in the Bill may be implemented Good quality data on children with SEN and disabilities in the way that the Government want. must be in place before we proceed with these reforms. Unless action is taken, there is a clear risk that some Baroness Howarth of Breckland: My Lords, I children will continue to fall through the net. The understand that the Government probably do not department’s draft SEN code of practice acknowledges want to increase the level of bureaucracy in local that issue and specifically highlights the importance of authorities in terms of information gathering. I also quality data on children with low incidence needs. understand that they possibly do not want to have Given that these children’s needs are relatively less centralisation when one of their main tenets is to common, there is an even greater need to establish decentralise to local government. That being said, their needs and whether local provision is sufficient to however, successive Governments have failed to get meet them. this right. Those of us who were involved in trying to However, as the noble Baroness, Lady Wilkins, has implement the Chronically Sick and Disabled Persons pointed out, existing data sets are flawed. The code of (Amendment) Act 1976, which was a long time ago, practice refers to the disability register. However, in remember that one of its main provisions was to try to the case of deaf children, I understand that it is get decent data on which to make strategic planning. identifying only around 7,000 to 8,000 children, whereas The only point I really want to make is that there is other estimates suggest that 40,000 would be closer to a conflict between that wish not to increase bureaucracy the truth. I understand that the department recently and not to be able to get consistent data on the same published guidance to local authorities on implementation basis across the whole of the local authority areas in of the new nought to 25 special needs system. In that, order to plan. It is not just local authorities which will the Department for Education asks local strategic be affected. I spend a lot of my time in charities. They leaders to consider what their data tell them about local need to plan their strategy for some very large amounts outcomes for children and young people with SEN. of provision. I have chaired a number of committees My concern is that, whatever these data tell them, where we have needed data in order to make a decision they are not going to give a reliable or accurate impression as to how we are going to move resources from one of children with SEN because the underlying data sets area to another. If you do not have that information, and systems are so fundamentally flawed. I hope that you can get that wrong. I would like to know how the the Minister will be able to reply positively in support Minister thinks that that kind of strategic planning of this amendment or indicate that positive action is can be carried out when the data lack that clear being taken to address these concerns. underlying consistency but at the same time I recognise the difficulties that it may cause in other areas of the 7.15 pm Government’s plan. Lord Low of Dalston: I, too, have put my name to this amendment and strongly support it. There is not a Baroness Jones of Whitchurch (Lab): My Lords, lot to be said in addition to what has been said by the I support Amendment 18C and very much echo the noble Baronesses, Lady Wilkins and Lady Howe, but arguments put forward by my noble friend Lady Wilkins perhaps I could ask the Minister one or two questions and other noble Lords in this short debate. which it would be helpful if he could respond to in Clause 22 already sets out that it is a requirement responding to the debate. The information currently on local authorities to identify all children in their collected clearly does not include all children with area with SEN. The Government obviously intend this SEN. What is being done to address that by the data gathering to take place and this work to be done; 1203 Children and Families Bill[LORDS] Children and Families Bill 1204

[BARONESS JONES OF WHITCHURCH] The department already collects data from schools otherwise they would not have put this in the Bill. It and local authorities on the number of children with therefore needs to be collected and collated in an special educational needs and publishes this annually organised and effective way. It cannot be argued that it on the department’s website. This includes data about is an extra administrative burden when the basic the number of children by type of special educational requirement for the information to be gathered is need and we will be expanding this information. At already in the Bill. Noble Lords have raised genuine present, we publish data by type of need for children concerns about the quality of data in the past and the at school action plus and with SEN statements. However, challenge of improving that quality in the future. I as we move to the new system for school-based SEN would also like to ask the Minister how the Government, support, we will also publish data by type of need for if they think that it is important for the information to children who are currently at school action. be collected, intend to make sure that the quality is For disabled children, local authorities are already delivered so that a proper planning process can take under a duty to maintain a register of disabled children place. Obviously, it is necessary to have this information and young people under Section 17 of, and Schedule 2 as a precursor to planning service delivery for all those to, the Children Act 1989. The draft, new SEN code of people with SEN in local authorities. practice reminds local authorities of that duty. The The amendment is partially about transparency. It department also collects data on children in the early is about making sure that the data are not only collected years through the early years census. For post-16, the but shared in an appropriate way so that they help Education Funding Agency and the Skills Funding both planners and service users to have a more informed Agency also collect data on young people in the further input into the local offer and help devise better services education sector, through the individualised learner in the future. The data might also have the advantage record on a range of types of need. Requiring local of providing isolated families with the knowledge of authorities to publish this data in the local offer would how many other families, children and young people just replicate data that is already available. in their area share a similar type of SEN or disability, So far as bringing together these different data sets which may help to bring people together. into one place is concerned, as I said, I do not believe The amendment is very much in the spirit and that the local offer is the appropriate place to do this, intent of the local offer, which is designed to help and I do not think it is right that central government parents, children and young people shape services for should impose on local authorities something that the future. That is part of an ongoing debate that we they should already be doing. Some local authorities have been having. The data collection and the quality may well be poor at carrying out their duties in this of that data are crucial to help make this happen. regard, but that is not a legislative issue: it is a matter Therefore, I hope that the Minister will see the wisdom of practice. We have made it clear in the code that in the amendment and will be able to support it. local authorities have this duty. The noble Lord, Lord Low, talked about incomplete Lord Nash: My Lords, I would like to thank the noble data. It is true that SEN data from the early years Baroness, Lady Wilkins, for raising this important census, although available on request, is not routinely issue and noble Lords who have spoken on this matter. published publicly, but we will make sure in future that I accept noble Lords’ concerns on this. I understand it will be and will be linked up to the main SEN that the noble Baroness’s purpose behind tabling the statistical publication. I assure noble Lords that the amendment is to put, as the noble Baroness, Lady Howarth, department is thinking about what the new arrangements has said, local authorities and schools in a better position in the Bill imply for data collection and we are seeing tomakegoodcommissioningdecisions.Goodcommissioning where there are possibilities for greater clarity and the is clearly an important underpinning to the reforms joining up of data sets. The post-16 data that are that we are making and the Bill already provides for collected by the department, the Education Funding joint commissioning arrangements across education, Agency and the Skills Funding Agency are publicly health and care for the provision that is reasonably available on a number of websites, and we are looking required for local children and young people with at ways to bring these together for greater clarity. SEN. That commissioning will be informed by the Indeed, more generally, we are looking to see how local joint strategic needs assessment and the data that data can be brought together to reflect the new nought are already available on these children and young people. to 25 arrangements under the Bill. We will also consider I accept absolutely that good data need to be available whether there should be a collection of disability data to inform commissioning, but I do not think that the from schools. I would be happy to discuss this further local offer is the right place to publish that data. The with the noble Baroness and any other noble Lords purpose of the local offer is to set out what provision who are interested. On that basis, I ask the noble children, young people and families can expect in their Baroness to withdraw her amendment. local areas and it is to be used as a vehicle for discussion about the development of local services. It is not Baroness Wilkins: My Lords, I thank the Minister designed to publish information on the numbers of for that reply.Unfortunately, agreement has not continued children and young people in the area with different from previous amendments. I thank all other noble types of SEN. It would not be appropriate to clutter Lords who contributed to this debate, but I find the up the local offer with such data. We accept that that Minister’s reply extremely disappointing. He said that information will be material to discussions about the the local offer was not the place to put this information development of provision in the local area, but that and that it would be cluttered up by it. But he then information is available elsewhere. went on to enumerate various forms of collection of 1205 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1206 the data which fail to recognise that it is the quality of 18N: Clause 26, page 21, line 42, after “needs” insert “, and the data that is collected that is so criticised at the (ii) the disabilities of the children and young people moment: it is failing to provide its purpose. It seems within subsection (1)(b)” key that, without reliable data, local authorities will not be able to commission the services that are needed. Amendments 18J to 18N agreed. I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to Amendment 19 withdraw the amendment. Moved by Baroness Howe of Idlicote 19: Clause 26, page 22, line 15, at end insert— Amendment 18C withdrawn “( ) securing for children and young people with special educational needs but no EHC plan the education, Clause 23: When a local authority is responsible for a health and care provision agreed under subsection child or young person (3)(a).”

Baroness Howe of Idlicote: My Lords, unfortunately, Amendment 18D my noble friend Lord Ramsbotham cannot be in place Moved by Lord Nash at this time of the evening and he asked me to lead, on his behalf, on this group of amendments, about which 18D: Clause 23, transpose Clause 23 to after Clause 24 I know that he has spoken to the Minister. Had he been here, he would have spoken first to Amendment Amendment 18D agreed. 19, which is by far the most important in the group, because it is designed to try to strengthen the duty on Clause 24: Duty of health bodies to bring certain local authorities and their health partners to make children to local authority’s attention joint commissioning arrangements to satisfy the vast majority of children with special educational needs, including speech, language and communication needs, Amendments 18E and 18F who do not have education, health and care plans. Moved by Lord Nash At present, while 2.8% of all pupils in our schools have SEN with a statement, 16.2% have SEN with no 18E: Clause 24, page 20, line 38, at end insert “or a disability” statement. As a result, the schools they attend will 18F: Clause 24, page 21, line 7, after “needs” insert “or have to try to obtain external support services such as disability” speech and language therapy, educational psychology, children and adolescent mental health services and Amendments 18E and 18F agreed. behaviour support teams for them. If such support is not available, their conditions may well worsen, resulting Clause 25: Promoting integration in the need for expensive EHC plans later on in their lives. As currently framed, the duty on local authorities Amendments 18G and 18H regarding those with SEN but no EHC plan requires Moved by Lord Nash them and their health partners to make arrangements to agree the provision of support—but, incredibly, not 18G: Clause 25, page 21, line 11, leave out “special educational” and insert “educational provision and training” to secure its provision. Nor does the duty require partners either to operate or reach agreement on any 18H: Clause 25, page 21, line 14, after “needs” insert “or a disability” provision, which is only sought on the basis of what is “reasonably required”. Health partners can use the Amendments 18G and 18H agreed. NHS Act 2006 to decide for themselves what that amounts to, without even having to discuss with the local authority whether it would be appropriate to Clause 26: Joint commissioning arrangements provide additional support in particular circumstances. What is more, there is currently no specific requirement for consultation on joint commissioning arrangements, Amendments 18J to 18N and no specific requirement to publish what has been Moved by Lord Nash agreed. 18J: Clause 26, page 21, line 32, after first “for” insert “— 7.30 pm (a) ” 18K: Clause 26, page 21, line 33, at end insert “, and This group of amendments is designed to mitigate those shortcomings. The amendments would make (b) children and young people in the authority’s area who joint commissioning arrangements stronger and more have a disability.” transparent, enabling them to fulfil their function of 18L: Clause 26, page 21, line 40, after “by” insert “— securing provision for children and young people with (i) ” SEN who are not protected by an EHC plan, and 18M: Clause 26, page 21, line 42, leave out “concerned” and better provision of the external support that schools insert “within subsection (1)(a)” need for children and young people without plans. 1207 Children and Families Bill[LORDS] Children and Families Bill 1208

[BARONESS HOWE OF IDLICOTE] his offer to host a seminar on the subject early in the Amendment 19 is about securing the provision new year, at which the Minister kindly offered discussion agreed under Clause 26(3)(a). It also includes an obligation with officials from both the Department of Health similar to that in Clause 26(4)(b), requiring local and the Department for Education—to which he would authorities to make arrangements to secure the provision like to add someone who can speak with authority in EHC plans. Amendments 20 and 21 are designed to about local authorities. I should be grateful, therefore, ensure that local authorities and health partners actually if the Minister would expand on what she has in mind operate the joint commissioning arrangements and when she replies. reach agreement. I see absolutely no point in legislating for the farce of local authorities taking necessary arrangements into account in their decision-making Baroness Sharp of Guildford (LD): My Lords, I and then not effecting them. have much sympathy with the amendment, particularly the point raised by the noble Baroness, Lady Howe, Amendment 22 is designed to ensure that health about those who do not have EHC plans. As she partners cannot simply use the NHS Act 2006 as a rightly said, we are talking about a large number of basis for deciding alone what is reasonably required. If children—a much larger number of children than will joint commissioning is to mean what it implies, health have EHC plans—and it is important that there are partners must sometimes accept the need for them facilities to meet their needs. The onus is now on to do things that they might not otherwise do. schools to provide those facilities, but we know that Amendment 23 inserts a specific requirement for public traditionally, schools have relied considerably, first, on involvement in joint commissioning arrangements. local authorities to help provide them and, secondly, Amendment 24 inserts a specific requirement to publish on health authorities and, for that matter, social services what has been agreed. to supplement them. My noble friend would have made two further At the moment, there seems to be a void in the Bill points. First, he would have sought clarification from on the question of how more specialist facilities are to the Minister on the role of the Minister for Youth be provided. The joint commissioning arrangements, Policy in all this. On 3 July, the Government announced as identified in the Bill, are fine, but at the moment that cross-cutting responsibility for youth policy was they are targeted at those with EHC plans; there is no being transferred from the Department for Education mention of those without them. I think that the idea is to the Cabinet Office, which would now lead for the that what is available will be spelled out in the local Government on: cross-government youth strategy and offer—I look forward to what the Minister has to say policy co-ordination; management of the statutory when we discuss the local offer. At the moment, there duties on local authorities for youth provision in their are a lot of loose ends and, given the number of areas; and strategic relationship management with children and young people involved, I hope that the young people and youth sector organisations on policy Minister will take the matter seriously. development. Looked at objectively, nothing needs more cross-cutting than what is sought by these amendments. Can the Minister tell the House whether Baroness Hughes of Stretford: My Lords, briefly, I the Minister for Youth Policy, Nick Hurd MP, has a support the amendments, especially Amendment 19. role in that? I do so because Clause 26, which deals with joint Secondly, having read the government amendments commissioning arrangements, is an extremely important published this morning, and in anticipation of the part of Part 3 and the new apparatus that the Government many amendments to Clause 30 on local offers, which are constructing. I support the amendments because turn out not to be offers at all but merely information they are aimed at strengthening the joint commissioning about what might be available, I suggest to the Minister arrangements. They need strengthening because of that at the heart of my noble friend’s concern is the the wording of the Bill. We discussed this in Committee. single word “implementation”. On the face of it, there Clause 26 seems to provide that local authorities and is a disconnect between local authorities and health health and education authorities must set up arrangements partners—which I suggest means the Department of so that they can have a discussion about what needs to Health, the Department for Communities and Local be provided in an area, but it does not say that they Government and the Department for Education, no must secure the provision that they think is needed. doubt exacerbated by the amount of change that the That is an odd omission. Amendment 19, in particular, NHS is currently going through. would create an obligation to secure the provision for children and young people who have not got Much is at stake here, because we are talking about the education, health and care plans agreed under the future of so many children and young people, Clause 26(3)(a). That is a very important amendment about which bodies including lawyers, the National to make to the Bill. Association of Head Teachers, the Royal College of As the clause stands, it says that the local authority Paediatricians and Child Health, the Special Educational and its partner bodies “must make arrangements”. Consortium, Every Disabled Child Matters, the Children’s The omission to do with “securing” is particularly Services Development Group, the Royal College of important with regard to health. As we said in Committee, Speech and Language Therapists and many others potentially they can use other legislation for absolving have expressed concern. themselves from improving on the provision available, My noble friend is reluctant to test the opinion of on the ground of cost. It would be very helpful if the House on this when it is clear that the Government the Minister could put on record the Government’s share his concerns. I understand that he has discussed intentions in Clause 26 in relation to securing the 1209 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1210 provision that is identified as being needed through and disabilities with and without plans will be met, the joint commissioning arrangements, particularly, and that on that basis Amendments 19 and 22 are but not exclusively, in relation to health. unnecessary. Given that Amendment 19 seeks to strengthen The joint commissioning arrangements require that Clause 26 in relation to that securing and, as the noble partners across education, health and care work together Baroness, Lady Sharp, has said, identifies the rather to deliver integrated services for those with SEN and insecure position at the moment of children and young disabilities. In the draft SEN code of practice we are people without plans, I support it and hope that the explicit that arrangements must be established that are Government are sympathetic. clear and robust, including what happens in the event of a dispute between partners, and should be specifically accountable to councillors and senior commissioners Baroness Northover: My Lords, I thank the noble locally. Baroness, Lady Howe, for speaking on behalf of the noble Lord, Lord Ramsbotham and arguing his case Equally, subsection (4) makes it very clear that for him. He and I had very useful discussions before he partners must be able to reach agreement on a course had to leave and I know how reluctant he was to of action in every case. The wording in the joint depart. Noble Lords are right: this is a very important commissioning clause reflects the fact that the parties issue. These amendments are designed to ensure that are expected to follow the arrangements unless there is those without education, health and care plans can a good reason to depart from them. have their needs met and that the joint commissioning arrangements are transparent and effective. We understand 7.45 pm the purpose behind that. On making the commissioning arrangements It is worth emphasising—and helps me in transparent, we say in the draft SEN code of practice understanding the provisions here—that I have just that commissioners should engage partners, and come, as it were, from the Department of Health and particularly representative groups such as parent carer worked on the health Bill. The NHS is, and continues forums, as the first stage of their joint commissioning to be, a universal service. It must respond to the arrangements. We hear what noble Lords have said reasonable health needs of the population it serves. and conclude that we could be even clearer on that in That will be an absolute requirement, connected with the code. In the final version we will say more on the the fundamental duties on commissioners to meet the role of schools in the commissioning process. health and care needs of children and young people, and supported by the requirements in the National Baroness Hughes of Stretford: That is very helpful. Health Service Act 2006 on CCGs to engage with the Could the Minister clarify subsection (4)? It says: public and with professionals and to promote integration “Joint commissioning arrangements about securing education, of health and social care and health-related services. It health and care provision must … include arrangements for”, is worth remembering, then, the strength of those securing EHC needs assessments. It talks about EHC provisions from the health side when looking at these assessments only and EHC plans only; it does not talk arrangements. about securing services for children without plans. Joint commissioning is the heart of the new arrangements for SEN. The statutory framework makes Baroness Northover: The noble Baroness will note local authorities and CCGs working together fundamental that I have talked about supporting children with and to how we meet the needs of children with SEN and without plans. If she bears in mind the responsibilities disabled children. Working together is not an option; within the NHS, the NHS mandate, the responsibilities it will be a “must do”, thanks to this Bill. of the CCGs, what the health and well-being boards Our joint commissioning requirements are backed are designed to do and the intention within the health up by powerful statutory accountability. NHS England’s service to reduce inequalities and ensure that nobody mandate—the “must dos” for the NHS—sets a clear is left out, and looks at those matters in conjunction objective that the NHS must ensure that children with with that, I hope she will see that there are very strong special educational needs have access to the services provisions coming from the NHS side that help to identified in their agreed plan. NHS England will be address this. In a minute, I may give her some more held to account for delivery of that, and it in turn will comments from the education side, but I hope she will hold CCGs to account. appreciate that joining up with the NHS is a very There is also local accountability, as every CCG’s positive move forward. plans and performance are scrutinised by the local Under this Bill, the local authority is also required health and well-being board. That board has a specific to consult on the local offer and when it is keeping its role to improve the health and well-being of the local education and social care provision under review. Equally, population and reduce health inequalities. It must there are duties on CCGs to ensure they, too, consult include representatives from each local CCG, Healthwatch with local partners and patient groups, including at and the local authority directors for adult social services, the commissioning stage. CCGs are held to account by children’s services and public health. Those are key NHS England for delivering this statutory duty, and people, accountable for local services. They will prepare NHS England has issued statutory guidance for CCGs the joint strategic needs analysis of the population, on engaging with patients. including this group, at high level. The noble Baroness, Lady Howe, made the point I hope this helps to reassure noble Lords that that the noble Lord, Lord Ramsbotham, made to me the needs of children and young people with SEN about the role of Nick Hurd and the Cabinet Office 1211 Children and Families Bill[LORDS] Children and Families Bill 1212

[BARONESS NORTHOVER] Amendment 19 withdrawn. taking responsibility for youth strategy—for example, youth clubs and national citizenship services. That is Amendments 20 and 21 not moved. distinct from departmental responsibilities for education, health and social care, which, obviously, are about the best services for young people as well as children. Amendments 21A to 21C Cross-government working, especially between the Moved by Lord Nash Department for Education and the Department of Health, is critical to the success of these reforms. The 21A: Clause 26, page 22, line 27, after second “for” insert “— Cabinet Office has a role to play because of its strategic (i) ” oversight of support for young people. 21B: Clause 26, page 22, line 29, after “needs” insert “, or I reassure my noble friend Lady Sharp—and this (ii) any children and young people in the authority’s also picks up the point made by the noble Baroness, area who have a disability” Lady Hughes—that the provisions in Clause 26 for 21C: Clause 26, page 22, line 32, leave out “such children and joint commissioning embrace children and young people young people” and insert “children and young people within without EHC plans, as well as those with such plans. paragraph (a)” I hope that the noble Baronesses will be reassured by that. Amendments 21A to 21C agreed. As the noble Lord, Lord Ramsbotham, and I discussed before his departure tonight, the Government are Amendments 22 to 24 not moved. clear that further legislation is not the answer. The noble Lord has identified an important implementation Clause 27: Duty to keep education and care provision challenge and the noble Baroness made reference to under review that challenge. We must indeed ensure that local areas take full advantage of the opportunities offered by the NHS Amendments 24A and 24B reforms which I have, I hope, spelt out and by the Bill Moved by Lord Nash to secure the best possible planning and commissioning of services to meet local needs. Children with SEN 24A: Clause 27, page 22, line 40, leave out “special educational” and disabilities, who particularly need their health and insert “educational provision, training” services, schools and local authorities to be joined up, 24B: Clause 27, page 22, line 42, after “needs” insert “or a must benefit from this. That is why I propose that disability” instead of pursuing this amendment a better proposition, which is what the noble Lord, Lord Ramsbotham, and Amendments 24A and 24B agreed. I talked about, would be to arrange a meeting with those working on implementation at the Department Amendment 25 for Education and the Department of Health. The noble Baroness referred to that meeting; it would Moved by The Countess of Mar also be with the interest groups that the noble Lord 25: Clause 27, page 22, line 42, after “needs,” insert “including mentioned—the noble Baroness mentioned local organisations that provide online or blended learning (or both),” authorities, which are obviously also relevant here— and would be about what we should be doing to get The Countess of Mar (CB): My Lords, this is a long the implementation right. I was very glad that the list of amendments with, the noble Baroness will be noble Lord, Lord Ramsbotham, was enthusiastic about pleased to hear, a brief message. The Government are contributing to that. Of course, he has a lot of expertise trying to ensure that children with special educational in this area. needs have the best education and we are all agreed I hope very much that we will go down that route that that is commendable. The Bill focuses on provision and that instead of pursuing this amendment, we will for SEN children and young people who are within take forward these discussions about how this is best mainstream education. This excludes some 100,000 implemented, while taking on board the issues which youngsters who cannot have access to the traditional noble Lords have flagged up. I hope that I have been schooling system for reasons of chronic illness, disability, able to reassure noble Lords that the joint commissioning exclusion, relocation of looked-after children, or children arrangements clause offers a strong framework that who live in a secure environment. works with the NHS and will drive forward the SEN The Government often give the impression that reforms locally, for those with and without plans, and they believe that excluded young people are not interested that the NHS mandate, with its specific emphasis on in learning. As a result, the focus is on mainstream inclusivity, addressing inequalities and on children education. At Second Reading, my noble friend Lady with special needs, helps to underpin this. On that Howe of Idlicote highlighted the BIS research paper basis I urge the noble Baroness, on behalf of the noble from January 2013 on the motivation and barriers to Lord, to withdraw the amendment. learning for NEETs—young people not in education, employment or training. I discussed it further in Grand Baroness Howe of Idlicote: Iamveryhappytodoso Committee. It is obvious that it is actually these barriers and also to thank the other Members who have taken which make young people feel disillusioned. This leads part in the debate. It was very interesting to hear what to their exclusion from the education system and puts the plans are. Thank you. them at risk of joining the 979,000 young people who 1213 Children and Families Bill[17 DECEMBER 2013] Children and Families Bill 1214 are currently on the NEETs register. These young people majority of children. These amendments are simply cost the taxpayer about £56,000 a time. It is vital that about adding a safety net to catch youngsters who they are not left behind. would otherwise be drinking at the last chance saloon. We know that the right support given at the right time I have already used the example of Nisai to highlight can make an enormous difference and helps young the important role of individual organisations which people to achieve their personal ambitions. Students have created imaginative ways to help those who are who appear to opt out of education do not do so on excluded and produced excellent results. It makes sense impulse. There is usually a chaotic background to their that the good work which alternative education providers lack of engagement that needs to be dealt with sensitively. have been doing for a small percentage of vulnerable We must bear in mind when developing an education young people can be rolled out to reach the most solution for these vulnerable young people that one vulnerable in society. size does not fit all. Clause 19 shows clearly that the Finally, I stress to the Minister that it is obvious Government are determined to involve children and that the use of online learning has support from all their parents in the decisions around specialised education sides of the House. We noticed that in Grand Committee. and that they get the right support at the right time. We really need to enter the digital age in this educational Surely, by allowing parents and children to have direct field. Virtual education has been used successfully by input into the organisations that could be part of their universities for many years and I am sure that the education provision, the Government would ensure noble Baroness would agree that it is time that primary that they have the best provision with the widest range and secondary education caught up. Most children are of suppliers, helping them to achieve their objective. computer literate at a very early age and those who Education provision for those outside the mainstream cannot attend mainstream schools would probably is often supplied by individual organisations such as enjoy the ability to access educational material in Nisai and the Red Balloon project, which have created virtual classrooms. I think particularly of the young innovative ways to help those pupils who are currently people who I know best: those who are housebound or out of school. Online and blended learning is one such bedridden because they have ME. They can take small innovative technique that has been utilised by parents bites of material at a time and many have had excellent to ensure that their children have access to the education examination results. they need. I described in Grand Committee the means I am very grateful for the meeting that I had with by which this is achieved so I will not repeat myself. As officials yesterday. I hope that, as a result, the noble I said then, this type of learning is an important tool Baroness will look on my amendments kindly and for many parents but is not recognised as part of the that, even if she is not prepared to see them within the framework of education provision for young people Bill, she will ensure that online and blended learning with special needs. This means that it cannot be rolled are included in the relevant codes of practice. I beg out to help numerous other children. It is available just to move. to those parents who are in the know and can afford to pay. As it stands, money assigned to a pupil or student 8pm while inside the mainstream school system does not Baroness Morris of Yardley (Lab): My Lords, I follow them once they cease to be on the school roll. support the amendment of the noble Countess, Lady This means that it is often difficult for them to access Mar. I do not know what the Minister is about to say, the alternative provision that would help them. so it might not be necessary for me to speak. However, If online and blended learning was officially recognised in case we are not entirely satisfied with the Minister’s as part of the education provision that can be provided response, I shall offer a few comments in support now. by local authorities, it would become easily accessible We may be missing an opportunity here. There has and enable the Bill to fulfil its purpose, been a great improvement in blended and online learning “to improve services for vulnerable children .... to ensure that all over the past few years. A decade ago, I should have children and young people can succeed, no matter what their been sceptical about an amendment such as this. I background”. should have still wanted almost to squeeze these children In addition, the costs make sense. Online and alternative into the traditional model of education, which is of providers can help to save the Government money. course what many of them are rebelling against, and Students will no longer need to be taught in isolation which has failed to meet the needs of many of them. for a few hours a week by home tutors. They will join Having visited places like Red Balloon and talked to virtual classrooms of 10, with one teacher, and will people who have now become proficient in online and have access at any time of the day or night. Local alternative ways of supporting these children, I think authorities, which are under pressure to reduce their the time has come when we ought to acknowledge that costs, will be able to save on other parts of their it could provide a very important, successful form of budgets. For example, I understand that in 2010 education for children whom we have failed in the Northamptonshire County Council spent more than past. I might not have thought of its fitting into this £6 million on taxis for disabled special needs children, Bill, but it is an ideal place to acknowledge the growing expelled pupils and young mothers. Saving these costs importance that online and alternative methods of by centralising the use of online and blended learning learning are playing in our education system. We would enable local authorities to allocate funds to ought to seize that opportunity. other vital services. My second point is that this fits in with two important If online and blended learning were to be formally aspects of the Government’s education policy. The recognised, there need be no fear that anything need first is the change needed in the IT curriculum for be taken away from mainstream education for the children in formal education, which the Government 1215 Children and Families Bill[LORDS] Children and Families Bill 1216

[BARONESS MORRIS OF YARDLEY] We appreciate that an underlying aim of these have done well to acknowledge. In doing so, they seem amendments is to highlight the benefits of online and to acknowledge that changes in IT and learning are blended learning for certain groups. The noble Countess, here to stay, and that we need to seize ways—of which Lady Mar, and the noble Baroness, Lady Morris, this is one—to acknowledge the importance of made their case effectively and powerfully. We do not information technology and digital learning in our think that legislation is the appropriate vehicle to education system. achieve this aim, but we shall reflect carefully on how The second, more obvious, fit with government the SEN code of practice and statutory guidance on policy is that this is an alternative to mainstream alternative provision can better support informed decisions education. Among all the alternative provision, such on this type of provision—decisions that are based on as free schools, about which I have serious concerns, I the best interests of the child or young person. see this as finding a way to let innovative education In doing so, we shall take into account the views of play its part in the education of children—something those groups facing particular barriers to mainstream that we are not good at doing. Whereas I am sceptical education. The noble Countess highlighted some of about a lot of the ways that the Government are these. To this end, I understand that my honourable finding to put that innovation into the system, I wish friend the Minister for Children and Families has they would seize this. If they were to look seriously at agreed to meet the noble Countess, Lady Mar, to hear this amendment and touch base, they might see in it, experiences of the support needed for children and for some children with special educational needs who young people with ME. I hope that will be helpful to are rebelling against mainstream education, and for both sides. I should like to acknowledge the work of whom mainstream education has never done a decent the noble Countess, Lady Mar, in supporting the job, something which holds the key. cause of people with this condition. I look to the Minister for an acknowledgement of I hope I have reassured the noble Countess and the that, and either for this to go in the Bill or for a strong noble Baroness that there is sufficient flexibility within message to go out that this is a good thing which we the current arrangements to allow for the use of high- ought to do all we can to support. Trying to read the quality alternative provision, including online and blended Minister’s mind before she has spoken is difficult, but learning, where it is in the best interests of a child or I hope that she is going to be sympathetic, if not in young person. Where there are restrictions, we believe accepting this amendment, in giving a really clear that they offer vital safeguards in relation to the signal that this is good, welcome and deserving of education, wider development and safety of pupils. maximum support. We shall, however, look at how guidance can be improved so that decisions on the use of online provision are Baroness Northover: My Lords, I thank the noble focused on the individual’s particular needs—that is at Countess, Lady Mar, for highlighting this area. She the heart of this. I therefore urge the noble Countess, has fought long and hard for those with ME, to whose Lady Mar, to withdraw her amendment. situation she has made reference. In Committee, my noble friend Lord Nash clarified the Government’s The Countess of Mar: My Lords, I am grateful to position; that the majority of children and young the Minister for replying so kindly. I accept her offer people are best served by attending a mainstream to look at the guidance. I thank the noble Baroness, institution. We had a key discussion on this earlier. We Lady Morris, for her very powerful support. I beg do, however, recognise that for some children and leave to withdraw the amendment. young people mainstream education is not appropriate, as both the noble Countess, Lady Mar, and the noble Baroness, Lady Morris, said. The education arranged Amendment 25 withdrawn. for these individuals could indeed include the use of online provision as part of a blended package of support. Indeed, I understand that earlier this month, Amendments 25A to 25D the Nisai Learning Hub was registered as an independent Moved by Lord Nash school that will provide alternative provision through 25A: Clause 27, page 22, line 43, leave out “special educational” a mixture of supported online and face-to-face learning. and insert “educational provision, training” Decisions on the use of such provision clearly need 25B: Clause 27, page 22, line 44, after first “for” insert “— to take into account children’s and young people’s academic needs. It is also vital that their social and (i) ” emotional development is supported, and that their 25C: Clause 27, page 22, line 45, at end insert “, and health and safety are protected. Because of that, we (ii) children and young people in its area who have a believe that local authorities, mainstream institutions disability.” or special institutions should remain accountable for 25D: Clause 27, page 23, line 2, leave out “special educational” these decisions. However, to reinforce the point made and insert “educational needs, training” by my noble friend Lord Nash in Committee, the provisions in this Bill do not prevent the use of alternative Amendments 25A to 25D agreed. provision, including online and blended learning. I can reassure noble Lords that it can be included within an EHC plan, it can be funded by personal budgets Lord Nash: My Lords, I beg to move that further and it can be part of the local offer used to support consideration on Report be now adjourned. Perhaps pupils without an EHC plan. I may take this opportunity to wish all noble Lords a 1217 Children and Families Bill[17 DECEMBER 2013] Gambling Bill 1218 very happy Christmas, and also to say that I hope that swiftly and effectively to developments in remote gambling. noble Lords opposite will enjoy what is left of their While the current arrangements have not as yet led to party. widespread problems for consumers, the Government are committed to staying ahead. The market is growing Consideration on Report adjourned. and we need to take this opportunity to give the Gambling Commission the ability to identify and understand emerging issues before they manifest themselves on a larger scale. Gambling (Licensing and Advertising) Bill Second Reading The Bill therefore seeks to extend the regulatory regime established by the 2005 Act to all remote operators that seek to advertise and sell into the 8.08 pm British market, whether they are based in Britain or Moved by Lord Gardiner of Kimble abroad. In this sense, the regulation of remote gambling will move from the point of supply to the point of That the Bill be read a second time. consumption by consumers. With this change, all remote gambling operators Lord Gardiner of Kimble (Con): My Lords, the Bill advertising and selling into Britain will be required to is a prudent measure, seeking to increase public protection hold a Gambling Commission licence, making them for consumers based in Great Britain by tightening subject to robust and consistent regulation by the current legislation to ensure that all remote gambling, commission, increasing protection for British consumers; whether provided by British or overseas suppliers, is a supporting action against illegal activity, including licensed activity subject to the Gambling Commission’s sports betting integrity; and establishing fairer competition standards and controls. This is a small but significant for British-based operators. As licence holders, they Bill, the key purpose of which had broad support will be required to comply with the Gambling across all sides in the other place. In fact, this Bill has Commission’s licence code and conditions, which include its origins in the previous Administration’s review of social responsibility and technical standards requirements, the remote gambling regulatory framework. including licence conditions that protect children and Remote gambling is gambling in which people vulnerable adults. It means, too, that for the first time participate by the use of remote communication—internet, all remote gambling overseas operators will also have telephone, television or other kinds of electronic to inform the Gambling Commission about suspicious communication. Remote gambling is on the increase betting patterns to help to fight illegal activity and year after year. According to the latest Gambling corruption in sport. The recent allegations of match Commission statistics, it has increased by 5% from last fixing illustrate the importance of extending this year alone, fuelled by the spread of fast internet requirement to overseas operators, and the Financial connections and the use of mobile phones. Conduct Authority will further strengthen the existing The Gambling Act 2005 currently regulates those arrangements by issuing new guidance to sports spread operators who have at least one piece of their remote betting operators about their requirements to notify of gambling equipment in Britain, described as, suspicious market activity. “at the point of supply”. Advertising is of major importance to operators These operators are required to hold a Gambling and central to their ability to attract custom; in many Commission licence and are subject to the commission’s ways it is their life-blood in a very competitive market. licence code and conditions. However, there is no such The Bill will bring operators’ ability to advertise in requirement for remote gambling operators based wholly Britain in line with the new regulatory regime. As a overseas. The Gambling Commission estimates that result of the Bill, all remote gambling operators wishing around 85% of remote gambling activity by British to advertise to British consumers will be required to consumers currently takes place with operators that hold a Gambling Commission licence. The requirement the commission does not regulate, and that includes for a licence means that a failure to comply with the many of the well known high street brands. This is a advertising codes of practice, which seek to ensure sizeable proportion outside the scope of the British that adverts do not glamorise gambling, exploit vulnerable regulatory regime. While these operators are governed people, appeal to children or suggest gambling as a by the regulatory regimes of the jurisdictions in which solution for financial difficulties, could result in an they are based, British consumers can experience varying operator losing their licence. The loss of their licence levels of protection. would mean they could not advertise in Britain, which Given the increasing number of British consumers would go to the heart of the viability of their business. using these services, it is time to extend the regulatory The change in the licensing regime means the end framework established by the 2005 Act to this growing of what has become known as the white list. At market. We need to move with the times and ensure present, operators based in the EEA, including Gibraltar, that British consumers enjoy consistent consumer or in a non-EEA country designated by the Secretary protection in an age where the use of technology is of State, are able to advertise remote gambling to prevalent and means that operators transacting with consumers in Britain without a British licence. Those British consumers can be based anywhere in the world. countries, known as the white list countries, include The increased accessibility to online gambling products Antigua and Barbuda, the Isle of Man, the States of means that we need to take this opportunity to ensure Alderney and Tasmania. The list was closed in 2009, that the Gambling Commission can monitor and respond pending the outcome of the consultation on the proposal 1219 Gambling Bill[LORDS] Gambling Bill 1220

[LORD GARDINER OF KIMBLE] are content that the existing powers under the 2005 for the Bill. The white list will be repealed by the Bill, Act provide the commission with broad investigatory and all operators, whether based in the EEA or elsewhere, and enforcement powers with which to achieve the will require a British licence. consumer protection aims of the Bill. The situation is The Bill also creates a new offence of unlicensed not unlike the difficulties posed by counterfeit goods. advertising of remote gambling in Northern Ireland, We cannot necessarily act to prevent their manufacture which has been welcomed and agreed by the Northern in overseas countries, but we can use all the tools at Ireland Executive and Assembly. Unlike Scotland and our disposal to disrupt and prevent their importation Wales, gambling is a devolved matter in Northern and sale in this country. Ireland, but the law there is silent on remote gambling. The Bill will increase consumer protection. As a For that reason, Section 331 of the 2005 Act, which result of the Bill, all operators selling or advertising in prohibits the advertising of remote gambling by an the British market, whether from here or abroad, will operator from a non-EEA or white list jurisdiction, be required to hold a licence from the Gambling was also extended to Northern Ireland. The changes Commission. This Bill is a significant step towards being brought in by this Bill require the repeal of enhanced consumer protection. It extends the scope of Section 331. the 2005 Act to protect British consumers in this The Northern Ireland gambling laws are currently fast-growing market and will ensure consistency of in the process of being rewritten and updated. In the consumer protection and a level playing field between mean time, the Government and the responsible Northern operators. The increase of remote gambling makes Ireland Minister, the Minister for Social Development, this the right time to act to ensure that the Gambling Mr Nelson McCausland MLA, were concerned to Commission has the ability to intervene to protect ensure that Northern Ireland consumers continued to British consumers of remote gambling now and in the have the same protection as other British consumers in future. I beg to move. relation to the advertising of remote gambling, as was the case under Section 331. This new offence achieves 8.21 pm that. It means that all UK consumers will enjoy the same protection in respect of the advertising of remote Baroness Pitkeathley (Lab): My Lords, when it gambling. comes to gambling, I am far from being a usual suspect in your Lordships’ House. In fact, this is the So far as enforcement is concerned, overseas operators first time I have ever addressed your Lordships’ House that are required to hold, but fail to obtain, a Gambling on this topic. I do so tonight because I have two Commission licence will be committing the offence of important personal interests. The first is as a Channel providing facilities for gambling or the separate offence Islander because this Bill has major implications for of advertising unlawful gambling. The Gambling the Channel Islands, particularly Guernsey and Alderney. Commission is empowered under the 2005 Act to take I am a very proud Guernsey woman—the only one, appropriate action against illegal operators. I think, in your Lordships’ House. The Gambling Commission has a number of Electronic gambling is of major importance to enforcement tools available to it under the 2005 Act both islands and is crucial to the economy of Alderney. with which it is able to detect and disrupt unlicensed The sector provides approximately £50 million a year operators. It has wide investigatory powers under the of benefit to the Bailiwick of Guernsey’s economy, 2005 Act and the Regulation of Investigatory Powers and it employs almost 400 people directly and in Act 2000 and employs expert staff with forensic related services. For Alderney, one of the smallest of accounting, e-commerce and police investigatory skills. the Channel Islands with fewer than 2,000 residents, it Stopping illegal advertising is an important way the accounts for 12% of its GDP. The consequences for commission protects consumers from illegal operators. Guernsey and, particularly, for Alderney, should this The Gambling Commission has demonstrated that it sector be threatened, are significant and would be of is able to take effective, swift action to remove illegal concern to those of us who recognise the importance advertising, including working with third-party carriers of the Channel Islands to the British family, which the such as Google and Yahoo. Third parties which carry islanders always emphasise. illegal advertising are themselves at risk of prosecution The development of e-gambling in Alderney since under the 2005 Act. Player education is another important 2000 has been a huge success, largely because of the tool in combating the use of unlicensed services. The quality of regulation that its Gambling Control commission also has power to bring criminal prosecutions, Commission provides. The commission knows that to including in absentia. survive and succeed it has to meet and exceed the The Gambling Commission also continues to build highest international standards of regulation. It has links and information-sharing gateways with regulatory set itself objectives which seek to ensure that all electronic bodies across the world. Many jurisdictions take account gambling on Alderney is conducted honestly and fairly, of prosecutions overseas when considering the ongoing that the funding, management and operation of electronic suitability of licensees, as does the Gambling Commission. gambling on Alderney remains free from criminal Of course, I do not claim that the commission can influence and that electronic gambling is regulated eliminate all instances of illegal activity. The commission and monitored so as to protect the interests of licensees’ will, as it currently does, take a risk-based and customers as well as the young and vulnerable. proportionate approach to enforcement. There will In order to do that, Alderney invested considerable always be some operators who do not comply and effort and resource to become one of the very few players who disregard the risks, but the Government jurisdictions to be placed on the UK’s e-gambling 1221 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1222 white list, which was mentioned by the Minister. The places peopled by shady characters out of a Dick UK recognised Alderney as one of only five jurisdictions Francis novel. Not so, my Lords. Even on cold and with regulatory regimes that were benchmarked to be rainy weekdays I have found racecourses vibrant, exciting of such a high standard that Alderney operators were places full of both aficionados and newcomers, families allowed to advertise their e-gambling services in the as well as professionals—in short, people having a UK. To achieve this, the Alderney Gambling Control good time. They are also innovative, constantly trying Commission had to demonstrate the very highest new ideas and schemes to bring more people in—ladies’ standards of regulation, propriety and probity. It has days, music of all kinds and many other things which done so to such an extent that the UK’s own Gambling contribute to a family day out. Commission has come to rely on the AGCC providing This is very pleasing to see and confirms the statistics a benchmark of best practice and it has recognised its of the British Horseracing Authority that horse racing enormous expertise in regulating remote gambling. is not only the country’s second most popular sport, Many British firms have established themselves there with 5.6 million attendees at events in 2012, but also and have accessed the British public with little or no the second largest sporting employer. British racing negative consequence in terms of player protection. supports a predominantly rural industry which makes One of the consequences of the Bill should be that a significant contribution to the British economy, the UK and ordinary regulators should work even generating £3.5 billion in annual expenditure and providing more closely together to protect the consumers of direct and associated employment for no fewer than e-gambling. This would not only avoid duplication of 85,000 people. effort, which is in itself sensible enough, but also ensure that, where the Gambling Commission finds There is, however, concern that the future of the itself stretched thinly by the new responsibilities in industry is threatened by the inadequacies of the this Bill, it can ask Alderney to assist. Over the years horserace betting levy, the legislative mechanism which the AGCC has worked closely with its UK counterparts provides racing a return from betting activity on its in developing its own regulatory framework and has sport and which is used to fund prize money and other been influenced by what we do in the UK. It is one of important expenditure, including regulatory and integrity the very few jurisdictions outside the UK which has services and veterinary research and education. This placed a mandatory requirement on its licensees to has fallen from an average of £106 million in 2003-04 contribute to research, education and counselling of to £66.7 million in 2008-09. problem gambling, and could be an exemplar for As just two knock-on effects, the number of horses other jurisdictions. I know there is much concern in training has fallen by 10.6% between 2008 and 2012 about problem gambling, and rightly so, especially if while foal production was down 26% over the same unregulated operators are allowed to advertise their period. The move by many betting operators to an services, which might be a temptation to problem offshore location for their remote gambling arms has gamblers. Other noble Lords will no doubt speak been an important factor in the decline of the levy in about this. recent years. Betting operators licensed offshore for Alderney is a jurisdiction which has had great success remote operations are not liable to pay levy on their in e-gambling and relies on it as a significant driver of gross products on British racing from these sources. In its economy. It is at the very forefront of excellence in other words, they are free riding. This is costing millions e-gambling bodies around the world, and it wishes to in annual levy receipts to racing and unfairly distorts develop its partnership with the Gambling Commission the market against those operators which do pay the further within the framework of this Bill. Ministers levy. will, I hope, not only recognise these developments but I think that British racing welcomes the Government’s preserve them, as it is clearly in the interest of British introduction of this Bill, which will license all remote players and the Gambling Commission for them to do gambling, but as drafted it does not make any provision so and to capitalise on the work done by the white-listed in relation to racing or the horseracing betting levy, jurisdictions. meaning that the sport will not receive a return from Can the Minister indicate to the House what has remote betting activity, even once it is licensed with been done to ensure that the codes and practices as the UK Gambling Commission. well as the expertise in the white-listed jurisdictions There was a Private Member’s Bill debate on offshore are being considered in the introduction and development gambling in another place last year and the Minister of the new licensing framework? Can he also confirm of State for Sport, Hugh Robertson, said that any that he will encourage the Gambling Commission to reform to the levy to capture revenues under a point- work with trusted white-listed jurisdictions to avoid of-consumption licensing regime would constitute state any duplication of effort and to ensure that the best aid, but a recent and comprehensive ruling from standards of regulation, of the sort that are provided the European Commission will perhaps change the by my sister island of Alderney, become the general Government’s legal position. A French levy on online standard for the United Kingdom? horserace betting has been approved, recognising racing’s I turn now to the other personal interest I have in special status and common interest with the betting this Bill, which is not as a proud Guernseywoman but industry. It sets a vital precedent and is, I believe, in as a proud mother. I have a daughter who is an the process of being reviewed by DCMS for any amateur jockey and a son-in-law who is an owner. I read-across to the Government’s previous legal position. often join them at racecourses in various parts of the I hope that the Minister will be able to update the country. Before I started doing this, I might have had House on that. The legal advice received by the British an image of racecourses as rather bleak, rundown Horseracing Authority is that the collection of levy 1223 Gambling Bill[LORDS] Gambling Bill 1224

[BARONESS PITKEATHLEY] and enforce conditions of the licences? When is it from remote operators under a point-of-consumption anticipated that the Bill will come into effect? How licensing regime does not constitute state aid. Amendments will the transitional provisions operate, particularly were put down on this matter in another place. Would with regard to white-listed countries? The noble Baroness, the Minister be prepared to accept similar amendments Lady Pitkeathley, raised that point. in your Lordships’ House? It is widely expected that the Treasury will announce I should point out that there is no conflict between a POCT—point of consumption tax—rate of 15%. Is my support for Alderney in this regard and my call for 15% the right level to ensure that overseas operators changes to levy. The position of the Alderney Gambling cannot compete unfairly with UK-licensed sites in Control Commission has always been that it would be future? Some of the companies that continue to develop willing to consider requiring its relevant licensees to their software in the UK have concerns. They believe contribute to the levy. that the consequence of setting POCT at 15% will be I understand that the Government have agreed to that they and companies like them will be forced to review the situation with regard to the levy. I hope that relocate core services outside the UK. Investment in the Minister will be able to update your Lordships’ research and development, and in UK marketing, will House on this when he winds up. be cut. The unregulated market, they say, will flourish, to the detriment of players and decent operators. The overall tax burden will be greatest for companies resident 8.31 pm in the UK. What is the Government’s response? Can Lord Clement-Jones (LD): My Lords, it has undergone the Minister rebut these dire predictions? What discussions a lengthy process but I welcome this Bill, which I hope have they held? Why is the POCT being set at 15% if will remedy clear flaws in the Gambling Act 2005. It there are such risks in prospect? has already undergone extensive pre-legislative scrutiny There is also the question of whether the new and well informed debate in the Commons. As my legislation conforms to EU law, as it could be argued noble friend the Minister outlined in his introduction, that one of the major objectives of the Bill is to bring the Bill will require remote operators to hold a Gambling offshore sites into the UK tax net. What, if any, moves Commission licence to deal with British consumers or are being made towards common pan-EU standards to advertise in Great Britain. and compliance? Is there no prospect of a harmonised The licences will be important. I understand that approach across Europe to ensure minimum standards the licences for such online sites to be granted by the and effective enforcement? Gambling Commission will include a condition for comprehensive reporting of suspicious patterns of The Minister will also be aware that the National activity, but will the penalties for non-compliance be Casino Forum is seeking to amend the Bill to allow adequate? Much needed also is a licence condition for the UK onshore casino sector to provide its customers protection of player accounts following the Full Tilt with the same online gambling experience as the online case. What is the status of the consultation on this? sector. Under existing regulation, onshore casino operators Can the Minister give us an update tonight? What cannot indicate that the product is available from any restrictions on advertising—for example, before the internet-linked computer within the casino or advertise watershed—can the Gambling Commission impose their online site on or around an actual computer with and include as part of its licensing conditions. I hope internet access. So a customer can bring their own that the Minister will be able to answer those questions. internet access device—a tablet or a smartphone—into a casino and play online, perhaps even on the casino’s Other questions remain with regard to the Bill and own online site, but the casino operator cannot offer online gaming. What are the Government doing to that facility. What are the Government’s reasons for combat problem gambling online, particularly as regards resisting such an amendment so far, despite the the ability to self-exclude, including “one stop shop” recommendation in its scrutiny of the draft Bill by exclusion? What pressure are they and the Gambling the Culture, Media and Sport Select Committee, and Commission putting on operators to develop and use the wide support that that has received? It appears the necessary technology, such as play scan, to identify that this is under consideration, but only by means of this? Will there be kitemarking of sites, as recommended secondary legislation. That route seeks to categorise by the Culture, Media and Sport Select Committee an internet access device as a gaming machine—perhaps last May? Is it the Government’s intention to introduce a category A machine—if it is offered for use in a this and how will they fulfil it? Why are there no casino. Someone playing in the bar on their own iPad powers to block illegal offshore sites being introduced? is not playing a gaming machine, but someone playing If no statutory powers are proposed, is progress being a device offered by the casino would be. If an internet made towards a voluntary agreement between ISPs? access device is categorised as a gaming machine in Why are there no measures such as payment blocking these circumstances, it would become subject to gaming along the lines of the US Unlawful Internet Gambling machine technical standards regulations. So a player Enforcement Act, which has been adopted by so many using two different devices—one provided by the operator countries? Why are there no proposals, voluntary or on the gaming floor in the casino and the other their statutory, to ensure that illegal sites cannot appear own device—might face different conditions of play. prominently in search results on search engines? How That is totally confusing and unnecessary. effective will monitoring and enforcement be? How will licensing checks be carried out by the Gambling By contrast, the industry offered an amendment in Commission? Will adequate resources be given to the the Commons that would have allowed the Secretary Gambling Commission to carry out regular test purchases of State to control the number of such devices a 1225 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1226 casino could offer. I hope the Government will reconsider Davies, who is a rising star in another place. I agree their position during the passage of the Bill through with the drift of Mr Davies’s speech that this is entirely this House. a Treasury matter. A lot of the things that have been At the end of the day, we have to recognise that the spoken about in another place and even tonight obviously Bill is very limited in scope and there are some key have connections with what we are discussing, but not questions relating to ongoing Government intentions very close connections. in other areas of gambling. The noble Baroness, Lady If it was foreseeable and acceptable, I would not Pitkeathley, raised an important subject and concisely oppose at all the idea of the Treasury to seek further put the argument for going beyond the current four-year contributions by introducing this point-of-consumption voluntary agreement with the bookies. Why is there no tax in Europe—provided that the licences are in order government commitment to consultation on future and so on—but the mistake that it made, if I may statutory arrangements to ensure the future of racing make this comment early, is the one that was made industry finances? I know that Ministers have believed during the discussions we had on the pre-legislative hitherto that a new revenue-raising point of consumption scrutiny committee. The noble Lord, Lord Faulkner, licensing regime might constitute state aid. However, who was in his place and is now elsewhere, was with as the noble Baroness mentioned, the recent case in me on that committee and will remember what killed which a French levy on online horserace betting has the whole idea of casinos. When the Budd report came been approved, in recognition of horseracing’s special out, the idea that we could restore the magnificence status and common interest with the betting industry, of the seaside resorts by gambling and possibly by now sets a vital precedent. I very much hope that resuscitating entertainment and so on seemed rather Ministers will take note of that. improbable and fanciful. That appealed to the There is also the question of spread betting. That is, Government on one basis, which is where they fell of course, currently regulated by the FCA, but how down badly. That was that to address the danger of will its licences compare with those issued by the gambling by vulnerable gamblers, those people would Gambling Commission? Should that not be included have to decide to take money in their pockets and in the Bill, as some have argued, and brought within make sure that they had an adequate amount to spend the ambit of the Gambling Commission? If not, can over a weekend when they went up to, say, Blackpool— my noble friend confirm that an equivalent to condition that was the most discussed place. But it was killed 15.1 on reporting suspicious activity to sports governing absolutely stone dead as was explained to me by bodies will be introduced, which will be enforced by experts from America because there is no way that you the FCA? could get investment to produce the right project when Then there is the desirability of ensuring portability the Treasury was putting such a high tax rate on it. of casino licences as, faced with unused licences in a As I understand it, the guide is that a tax rate of number of localities, logic would dictate. There are 15% will be required. It is very interesting that the also all the issues surrounding FOBTs, which are now Treasury should do this. It is short-term thinking but extensively under discussion. Of course, we have the it is also quite dangerous, because if you start putting whole area of match fixing. Do we need better definition a tax of 15% on licensed companies, it is going to of the offences or further sanctions? make it very difficult for them to operate in a way that Last, but absolutely not least, we have the issue satisfies their customers. A large number of their surrounding the so-called Health Lottery. Do we have customers will leave the well-regulated, satisfactory a national lottery, which has a monopoly, or not? If operators. The online companies that are licensed are not, are we not putting at risk all those good causes extremely satisfactory. It will encourage people to go that we support? I very much hope that the long-overdue to places where they will be less secure as consumers, consultation paper to test opinion on the impact of where there will be ability for people who are in the Health Lottery, and the amendments that could be danger, with their addiction going and so on. That has made to safeguard the National Lottery, will see the not been thought through by the Treasury, although light of day very shortly. I can see nothing wrong with the basic idea of the It is clear that the Bill is one thing, but the many Treasury getting its hands on some more income. other issues that need resolving as regards the gambling Various other things have already been mentioned industry, and lotteries and gaming, are another. Can this evening that spring to mind. The Gambling my noble friend confirm in his winding-up today that Commission, for example, will have a great deal of all these issues are under active consideration, either responsibility as a result of this. I do not particularly by his department or by the Gambling Commission? like quangos of any kind, and I have not been too I look forward to his reply. impressed by this quango so far. It is a poor replacement in terms of performance compared to its predecessor, 8.41 pm on which it was based, which controlled casinos from Viscount Falkland (CB): My Lords, this is quite a the 1960s. The Gaming Board was extremely successful simple Bill, as other noble Lords have pointed out. I in that it did not grow unsatisfactorily into a kind do not know whether other noble Lords have read the of an empire. It seems to me that the possibility of Second Reading proceedings in another place. In the empire-building as a result of this Bill is considerable. past I did not normally have the habit of reading They will be flying around Europe inspecting places Second Readings, but I read that through twice and and so forth. very interesting it was, too. It was really a kind of Certainly in the run up to the 2005 Act, we did not double act between Mrs Grant for the coalition and discuss online gaming at any length in the pre-legislative the department, and the Member for Shipley, Mr Philip scrutiny committee. One afternoon I went to one of 1227 Gambling Bill[LORDS] Gambling Bill 1228

[VISCOUNT FALKLAND] Perhaps the Minister can tell me—I ought to know, the leading online gaming companies. I have always if it has been published—what percentage of public been interested in gambling, unlike the noble Baroness, indebtedness is calculated to be down to gambling. It Lady Pitkeathley. I was particularly interested in this is an interesting figure, and I reckon that it is a very visit, because I was expecting something quite worrying. large figure. But I came away fully persuaded by the way in which I do not want to go on about any of the other that operation was run, how it took into account things. I think that this proposal will produce some dealing with vulnerable gamblers, and the excellence problems later on, as I have described. As for racing, I of the staff—in particular, as regards protecting themselves hope that the noble Baroness, Lady Pitkeathley, has from dangerous and vulnerable gamblers. For companies paid a visit to the racecourse, where her daughter may that work online, the last thing they want is those have ridden, which is so wonderfully run by the noble kinds of people. They would rather spend money on Lord, Lord Cavendish. He may even speak to us a bit weeding them out before having to deal with them. about Cartmel, which is really one of the nicest and They want regular players who have got the money to most jolly racecourses in England, with the kind of do what they do. They act responsibly and check them atmosphere that she so graphically described. out thoroughly. They had three or four highly educated Gambling is really something that gets worse when young women in that company who had psychology you do not indulge in it with groups of other people. degrees. Their entire job was to follow and trace their As children, we all played penny poker and things of customers’ betting patterns so that they could detect at that kind. The problem with racing is that, if you any moment if they thought such and such a person become too interested in it, you burn the midnight oil ought to be watched closely. They would then report and become solitary—and when you become solitary that to their employers. as a gambler, your problem increases. There is no I was convinced that these younger operators, these doubt about that. I am thinking about online betting, new people in the bookmaking firmament if you will, and fixed-odds betting terminals in betting shops, were extremely dedicated and extremely careful to run where people play poker and roulette. In a normal proper businesses, because they realised that integrity roulette situation on the table, your action takes place was what was going to bring them customers, so it was within about eight or 10 minutes, but it takes 20 important that that integrity was maintained, even if seconds on a machine. For people who are in danger it cost them a lot to do so. I have no doubt that the with gambling, that is a very strong factor that ought same thing will happen under the new conditions that to be taken into consideration. are now being brought in. Racing really does need to have more than the Government reckon that it needs. They seem to have I do not think adverts have anything whatever to do thought that about £75 million is about right, but it with anything. Adverts are just boring. People who are needs about double that to do what they do with the compulsive gamblers will not be watching adverts at tote monopoly in France. I am glad that the noble any time. Any restriction that you place on gambling, Baroness, Lady Pitkeathley, told us about the state aid rather like any restriction that you place on an alcoholic, relief, which might well make a big impact; we could a gambler will find his way around. So the companies get more money—and it is not just prize money but that have the screening process that I have just described the work conditions and raising the general standard are doing a great service, really, to the respectable and class of the less financially able racecourses to people who play on online sites. I do not know why we provide their entertainment. should be talking about advertisements, but I do not think that they do any harm—they are just ridiculous. Racing is historically very important in this country, I do not think that they will encourage even children which is important in the world—British racing is a to gamble, the advertisements that I have seen, and global brand, if you like, and we have some extraordinary I have watched them quite carefully. racecourses. People love it and will continue to love it and I think that it needs to be backed. I hope that the When I was a problem gambler in my early 20s—I Government will seriously look at racing and the would call myself a problem gambler, not a compulsive problems that it faces. I raised the issue once when I gambler—I got myself in some trouble, and I went said, I think, in front of the noble Lord, Lord Mandelson, along to see my bank manager to ask for an extension that racing was in a parlous state and he said that he of my overdraft. It was a Scottish bank, with a formidable did not know anything about that. I am quite sure that bank manager. After our discussion he looked at me the noble Lord, Lord Gardiner, knows about it and he very steadily and said, “We will grant you the extension might be able to give us some encouragement. of your overdraft that you asked for, but if you will forgive me I should like to make this remark. You have been paying one or two large amounts to a particular 8.55 pm company. I would just like you to know that the managing director of that company is an important Baroness Heyhoe Flint (Con): My Lords, I declare customer of this bank. He is a very rich man, and I an interest as a member of the England and Wales would advise you not to follow the path of expenditure Cricket Board, but I do not know if today is the that you have been following in this regard”. It absolutely appropriate date to mention links with such a sport. I froze me dead, and I closed all my credit accounts. am undertaking counselling clinics for any of my What my story tells you is that the old-fashioned bank noble friends in here tomorrow morning, along with manager was probably one of the best guards against the bank manager of the noble Viscount, Lord Falkland, improper expenditure. if that is possible. 1229 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1230

The official world of cricket and, to my knowledge, I understand that the ECB recently met the Financial that of football and horseracing, is at the forefront of Conduct Authority, which is being urged to introduce the debate about the impact of corrupt betting. Cricket guidance on this matter. However, again, the FCA has has over many years faced high-profile issues, such as said that it cannot replicate licence condition 15. Perhaps the South African Hanse Cronje and the more recent the Minister can tell us why that is so. It means that cases of international cricketers and English county information on any betting irregularities need not be cricketers exposed by national newspapers. Dealing given directly to any national governing body. This is a with the impact of these cases has meant that the major flaw because those governing bodies need to England and Wales Cricket Board, as with other national know of any betting issues immediately so that they governing bodies, has had to invest considerable time can act to prevent a manipulation of any aspect of any and resources to this greatly concerning issue. match or competition under suspicion. I urge the Minister to consider amendments to the Bill so that The Bill, as already stated, proposes that the UK spread betting is specifically covered. moves to a licensing system based on the point of consumption rather than the point of supply, but I also mention the need for the Government to look sports bodies worry that this Bill fails to address the more widely at the legislative framework for gambling. anomaly of spread betting—as mentioned by my noble Many sports feel that there is a need for specific laws friend Lord Clement-Jones—such as on the first no-ball, against match fixing. This would clarify the offences the first corner, or when England will ever get a first for prosecutors and mean that we could have appropriate innings lead against Australia this winter. While traditional penalties. Australia—if I dare mention that country betting operators are, as already mentioned, regulated again in the context of the current status of the Ashes by the Gambling Commission, at present spread betting series—has recently moved to do just that, so surely it operators are regulated by the Financial Conduct is time for the UK Government to follow suit. Authority, the FCA, with which there is no equivalent We should at the very least welcome this Bill. It is of the relevant licence condition 15.1. This means, long overdue given that the initial consultation proposing therefore, that spread betting companies are under no action was launched by Labour in 2010 when the legal obligation to report suspicious activity. My honourable Member Gerry Sutcliffe was Minister for honourable friend the Minister for Sport, Tourism Sport. Professional gamblers will exploit every loophole and Equalities has now publicly confirmed that the possible to further their illegal gains. They use sport as FCA will publish new guidelines for spread betting an insidious tool to further their dubious activities. I companies, comparable with requirements set out for urge the Minister to give every assurance that measures fixed odds operators under that licence condition 15.1, will be taken to give sport the weapons and resources I hope. it needs to protect the integrity of genuine sporting conflicts, and to protect the consumer. After all, sports There is urgency for the FCA to publish these governing bodies should not have to rely on newspaper guidelines. Will my noble friend the Minister give an stings or whistleblowers to reveal betting scams. If the assurance that this matter is under serious consideration? Bill includes legislation to cover the governance of Official sports are incredibly keen that spread betting spread betting, as well as traditional betting, the companies must be regulated in the same way as Government will be taking a vital step to protect the traditional operators. The International Cricket Council integrity of sport. was the first international body to have a global anti- corruption unit and the England and Wales Cricket 9.02 pm Board has developed an access unit with specific anti- corruption responsibilities. Lord Risby (Con): My Lords, one of the great pleasures of being a Member of Parliament was that as Illegal betting and match fixing is an activity that part of my constituency I represented Newmarket, the consumes considerable resources for national governing historic—and still, I hope—world headquarters of racing. bodies. Will my noble friend the Minister therefore The finances of racing are based on a system which urge the DCMS to consider whether this expensive nobody now likes at all and which has repeatedly resource could be funded by a levy from betting so attracted very reluctant government involvement. that once all offshore-based operators are, as the Bill Additionally, the levy has shrunk from a high point of proposes, regulated within the United Kingdom they £115.3 million in 2007-08 to the current very anaemic must make a contribution? Anti-doping agencies receive £73.9 million. By contrast, the French state-owned around £6 million in Exchequer funding but, at present, Tote monopoly returned ¤876 million in 2011 to the sports betting integrity receives nothing. The Government industry body, and even in Australia a total of £280 million are due to receive additional tax revenue of £300 million was returned to racing from betting. The comparison from overseas betting operators in 2014; could they is obvious. not divert as little as, say, 1% of this revenue to sport While high-quality bloodstock has recently reached to aid its fight against corruption, thus enabling national staggering price levels and race meeting attendance governing bodies not to have to divert resources away has grown as the industry has become more consumer- from developing the grass roots of their own sports? friendly, prize money is now pathetically inadequate—a The Sport and Recreation Alliance, which represents point made by the noble Viscount, Lord Falkland. over 300 governing bodies of sport within this country, Today there are concerns about consequent falling wholeheartedly supports the Bill, but with the reservation foal production, the best bloodstock leaving the country that all betting operators have a legal duty to share and the drop in the number of horses in training. information. It is right that we bring operators based I echo the point made by the noble Baroness, Lady overseas into that remit. Pitkeathley. The imbalances are now obvious. 1231 Gambling Bill[LORDS] Gambling Bill 1232

[LORD RISBY] Replacing the levy with a true sporting right would I welcome the Bill unreservedly, at least inasmuch represent a major step forward for racing and gambling as it takes us in the direction of some resolution of regulation more widely. Sport governing bodies could racing’s dilemmas and introduces clearer consumer determine the market value of their product in line protection and the monitoring of possible illegal activity. with the move to bring taxation and regulation of When the Gambling Act was introduced in 2005, it remote gambling onshore, as per this Bill. It would was hoped that online gambling would remain in the also recognise the interdependent relationship between UK with its economic benefits. It was an error by the the sports and gambling industries and force them to then Chancellor of the Exchequer to try to secure negotiate in good faith on commercial lines rather revenue by seeking to impose a tax and regulatory than, as in the case of horseracing, bringing about regime that simply helped to drive almost every operator unwelcome government intervention. offshore. At the heart of the Bill lies the objective of In conclusion, I repeat my welcome for this Bill and trying to secure a level playing field between onshore earnestly hope that it fulfils its sound objectives but I and offshore gambling by making the point of believe that there still needs to be another step forward consumption the focal point of the system. The Bill ultimately to move away from the levy system. Moreover, has been welcomed across the party political divide I ask the Minister, as this legislative process is undertaken, and endorsed by the Select Committee for Culture, echoing the point made by my noble friend, that this is Media and Sport. brought to a conclusion as quickly as possible. There Undoubtedly, we hope that this will have some has been the thought of potential delay of up to four effect on increasing the size of the levy and bring years. Big problems are being highlighted in this legislation. greater transparency to betting activity. If that proves I hope and believe that this can move through the to be the case, and the prize money situation improves, legislative process and be applied as quickly as possible. it will be hugely welcome. However, the truth is that the history of contact and agreement between the 9.09 pm governing bodies of racing and the bookmakers has Baroness Howe of Idlicote (CB): My Lords, first, I been at times fractious and unproductive. Of course, thank the Minister for his helpful and concise introduction the hope is that with this legislation offshore betting of the Bill. Before I make any detailed comments, I activity will be persuaded at least in part to return should like to set out some of the general principles home and that levy payments will be automatically informing my approach to gambling legislation. While paid under the regulatory umbrella provided by the I have no wish to prevent anyone from gambling Betting, Gaming and Lotteries Act 1963. online who wishes to do so legitimately, I believe in the However, there is a view that this is not currently importance of putting in place proper protections for adequately defined and that even after being licensed problem gamblers and the vulnerable. In this regard, by the Gambling Commission offshore operators may I strongly support the commitment to protect, not contribute to the levy, all of which may be subject “children and other vulnerable persons from being harmed or to judicial review. The Government have expressed the exploited by gambling”, fear that the introduction of the point of consumption as set out in Section 1 of the Gambling Act 2005. levy would breach EU state aid rules but the French, The 2010 British Gambling Prevalence Survey shows as we have heard, appear to have been given a green that the UK problem gambling figure is 0.9%. That light by the EU Commission to operate their parafiscal may not sound like very much, but it amounts to levy. about 451,000 people in the UK. Problem gambling is a hugely destructive process that destroys lives. In I cannot but believe that the levy ultimately is assessing its public policy significance, it is important unsustainable over the long run as the basis for financing to remember that since no man or woman is an island, a good portion of racing in this country. Therefore, the destructive chaos that impacts those 451,000 people however welcome this Bill is, surely we need to look actually impacts a far larger group when we factor in further, but regard this Bill as an important and significant the families and work colleagues of those 451,000 people. step towards an enduring, long-term and viable financial structure for the industry. Modern technology and Moreover, in considering the challenge of problem changing consumer habits and practice offer this gambling from the perspective of this Bill, we must possibility. I therefore invite the Minister to reflect on consider that the figure for people gambling online is the possibility of looking seriously at a sporting right much greater. Far from being 0.9% of the whole which would give organisers of potentially many sports population, the problem figures for online slot machines fixtures the property rights over the outcomes of the are actually more than 9% and, measured on a monthly event, the product on which bets are placed. This basis, are 17% of those who gamble. It is vital that we product would be licensable so that any operator approach the Gambling (Licensing and Advertising) offering or accepting bets on the sport would need Bill mindful of this challenge and mindful of the need prior authorisation and pay a fair return accordingly. to ensure that any changes it makes result in greater This would promote a commercial relationship between protection for problem gamblers. I now turn to my dependent industries, allowing the value of the products detailed consideration of the Bill. to be determined by a market rather than the Government, The first major problem with the Bill, as a consumer creating a level playing field and unlocking funding protection Bill, is that half of it is missing. The whole for horseracing and other sports, particularly at the point of having a regulatory regime is to protect grass roots level. This approach essentially has been customers, including the vulnerable, and this depends adopted in France and Australia. on being able to enforce that regime. In principle, the 1233 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1234 idea that all online gambling providers that want to duration of the agreed self-exclusion period and to access the UK market should require a licence is take them off any marketing list they may be on. This excellent. If we are to follow through on this protective tool works in that, as well as having weak days, problem measure, however, it is imperative that those online gamblers also have strong days. On a strong day, they gambling providers that do not have a licence are will be able to get round the four betting shops in their prevented from accessing the UK market. town and thus deny themselves the option of gambling for, say, eight months, during which time they can get If noble Lords scrutinise this Bill, however, they help and seek to put their lives back together. will see that this vital enforcement provision is missing. There is an incentive—a carrot—for gambling providers Currently, however, online problem gamblers are to get a licence, which is the opportunity to advertise, effectively discriminated against because, although they but there is no stick—no means of preventing unlicenced can self-exclude from gambling websites, they still providers from accessing the UK market. Without a have a difficulty. They could self-exclude from four credible enforcement mechanism, the chief effect of gambling websites that they can access from home, but the Bill is actually further to widen the scope for they will still be able to access hundreds, if not thousands, online gambling operators to advertise. Bereft of this of online gambling websites. It is simply physically key component, a Bill that is supposed to be about impossible to self-exclude from all those websites. consumer protection looks increasingly like the online Unlike the problem gambler who, in a strong period, gambling liberalisation Bill. self-excludes from the four bookies on his high street, the online gambler cannot do that for all websites. In the other place, the Minister was pressed as to why the Bill is all carrot and no stick. Specifically, she The current failure, however, is massively compounded was asked why there are no provisions in the Bill for by the Bill, because it proposes increasing the scope either IP blocking or financial transaction blocking. for even more online gambling providers to advertise The Minister’s response seemed to be based on a in the UK without doing anything to address existing fundamental misunderstanding about these mechanisms. discrimination against online problem gamblers. Happily, In the first instance, she seemed to seek to refute both there is something that can be done to address that problem: the provision of a one-stop shop self-exclusion financial transaction blocking and IP blocking, through arguments that only really pertained to the latter and mechanism. The principle is very simple. Any problem which did not provide a reason not to proceed with gambler should be able to self-exclude just once by financial transaction blocking. In the second instance, contacting the Gambling Commission, and that should she seemed to operate on the basis that because neither cover all gambling providers with a Gambling Commission mechanism is 100% effective they are failures. If we licence. are concerned to protect British consumers from Dr Sally Gainsbury, author of, Internet Gambling: unregulated providers, we should want to avail ourselves Current Research Findings and Implications, published of the technology that is available. Even if it was only by Springer in the SpringerBriefs behavioural medicine 50% better, that would be 50% better than doing series 2012, states that a significant limitation of self- nothing. exclusion is, “the lack of collaboration between different online gambling sites The implication seemed to be that unless blocking and venues, so that excluded individuals may find it easy to technology is 100% successful it is a failure, which is gamble at another site or venue”. rather like saying that because people wearing seat She argues that the technology is available and points belts still sadly die in some road traffic accidents, seat to its feasibility, particularly in the UK due to the belts are ineffective. The truth is that financial transaction current existing licensing conditions and code of practice blocking has been deemed sufficiently useful to be upheld by the UK Gambling Commission. She states employed as a tool to protect consumers from unregulated that, online gambling providers in Belgium, Estonia, France, Hungary, Israel, Malaysia, the Netherlands, Norway “it is a UK licensing condition to maintain a register of self-excluders, including appropriate record of identification details and payment and the USA. If the Government are serious in suggesting cards. Although care must be taken to protect customers identity, that the Bill before us today is about consumer protection, data encryption programs can be used to protect sensitive details they must introduce a clear enforcement mechanism, and it may be possible to encourage operators to share details to such as financial transaction blocking, and demonstrate enable wider self-exclusion programs”. a real political will to protect British consumers from Gainsbury goes on to mention a program called unlicensed online gambling providers. VeriPlay.com, developed by Bet Buddy, which allows The second failure of the Bill pertains to the way in the secure exchange of anonymous data. It allows which it effectively liberalises gambling advertising operators to check whether a player is on a centralised without taking any steps to help the problem gamblers, list of players that have self-excluded. who will be made even more aware of online gambling. Research presented to the Canadian-based Responsible To understand that failure, we must understand a Gambling Council in 2011 by the British-based GamCare failure of current efforts to help online gamblers today, and the University of Salford, along with Bet Buddy, even before the Bill takes effect. One of the accepted backs the proposa1. A one-stop shop amendment was standards for helping problem gamblers is self-exclusion. put down in the other place in Committee and at Indeed, a form of self-exclusion is already part of the Third Reading. Although both were defeated, the UK regulatory regime. Problem gamblers have the majority was not great and the Government did not option of self-excluding from gambling providers for a seem to have any compelling arguments with which to fixed period of, say, eight months or longer. The oppose. The Third Reading vote was relatively close, provider is then obliged not to serve them for the at 223 to 283. 1235 Gambling Bill[LORDS] Gambling Bill 1236

[BARONESS HOWE OF IDLICOTE] when off-course betting shops were legalised in 1961. The idea can be implemented; it takes only political As your Lordships have heard, the levy has decreased will. The basic question is: do we care about problem sharply in recent years. There are a number of reasons gamblers? Do we care about protecting the vulnerable? for this but by far the biggest factor in the leakage of The Government could have squarely addressed concerns levy can be accounted for by the bookmaking industry that this Bill is really all about tax, but they have not moving to offshore locations to escape the levy. The done so. consequences of this have been so well described by In the absence of a proper enforcement mechanism the noble Baroness, Lady Pitkeathley, that I will not and a one-stop shop self-exclusion mechanism, this repeat them. Suffice it to say that racing is suffering; looks like the “online gambling advertising liberalisation racing and all the economic benefits that flow from it Bill”, with no regard for online problem gamblers. Is are threatened. it not a shame that that is how one can look at it? I The development of offshore remote betting that strongly urge the Government to amend the Bill and escapes the levy is of course disadvantageous to racing. to make provision both for financial transaction blocking It is also unfair to the taxpayer and very unfair on and a one-stop shop for self-exclusion. those betting operators who have chosen to remain in the United Kingdom, as well as those companies 9.22 pm which have entered into voluntary agreements that Lord Cavendish of Furness (Con): My Lords, I mitigate forgone levy payment. The Bill before us will apologise to the House and to my noble friend the indeed license all remote gambling in Britain at the Minister for not being in my place when he rose. point of consumption. What it does not do, as has I think I only missed about 30 seconds. been said, is to make any provision in relation to I will not pretend to be an expert on gambling; but racing or the horserace betting levy. It is the strong having read the debate in another place and heard my contention of British racing, and my strong contention, noble friend, I do not think I have any difficulty in that the Bill provides a perfect opportunity to put this supporting this Bill and I thank him for introducing it right. Here I pay tribute to Mr Clive Efford, who put so clearly. in heroic work in another place on this subject. The I rise this evening only to draw the attention of your honourable gentleman indeed tabled amendments which, Lordships to one aspect of the Bill that affects horseracing. as your Lordships have heard, would have meant that So much of what I want to say has already been the levy was once more payable by remote betting rehearsed, and very ably, by the noble Baroness, Lady operators. The Government, again as your Lordships Pitkeathley, and my noble friend Lord Risby, that I have heard, rejected these amendments on the grounds, will try to keep my remarks briefer than I had intended. I think, that there were concerns in respect of the EU’s I must declare an interest. I am chairman of a small stance on state aid. I will return to that in a moment. national hunt racecourse in south Cumbria called The figures on racing and the huge crowds that it Cartmel; it is owned by my family. Therefore I know a attracts speak for themselves but there is more to little about jumps racing and almost nothing about British racing than the raw statistics suggest. Racing in the flat. Perhaps I should add that, in common with so this country has a long and fascinating history, whose many people involved with national hunt racing, in all origins stretch back to the very dawn of time when the years I have been involved with Cartmel I have man first saddled a horse—a point which I think was drawn nothing in the way of fees, dividends or expenses, made by the noble Viscount, Lord Falkland. It is not but I have helped myself to quite substantial lunches given to many and it is not, I say with some sadness, on race days. Of course, if any of your Lordships were given to me to really understand the extraordinary, to come to Cumbria, I would have enormous pleasure some would say almost mystical, relationship that has in asking them to join me there. developed over time between the two species of man The horseracing levy is sometimes misunderstood and horse. I see it and observe it. I talk to people who and believed to be some kind of subsidy to racing; it is have the gift and rather wistfully admire it, while of course nothing of the kind. Put simply, it was feeling a little excluded. established in 1961 with the power and the duty to If I may divert for a moment, the closest I ever collect a statutory levy from the horseracing business came to sensing that myself was when, many years of bookmakers and the Tote. In effect, the mechanism ago, I was part-owner of a wonderful mare. One dark was a recognition that betting operators owed something afternoon, I watched her run in absolutely vile conditions to the racing industry for providing the races on which on a northern track—not my own. It was a good race people liked to bet. and attracted good horses, and my mare drifted out in The majority of the levy income is distributed, as the betting. Sure enough, she struggled to keep up noble Lords have heard, by the Horserace Betting with the field and a mile out, I could see that she Levy Board in direct support of horseracing. That will looked tired and outclassed. Quite suddenly, coming include improving the breeds of horses, the advancement round the final bend, she gathered herself and headed and encouragement of veterinary science and veterinary with visible courage and determination through the education, integrity services and improving horseracing. driving sleet to win by a short head. She was what is Overwhelmingly, however, the levy enhances prize money, known in racing terminology as a genuine horse. It which in turn generates more levy—and so the cycle was impossible not to be moved by the shared triumph goes on. of jockey and horse. Parliament’s original intention when establishing I relate that incident because it is one of many the levy was to provide a means of compensating thousands that happen every year which make British racing for the loss of attendance that was anticipated racing the great romance that it is: the romance that 1237 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1238 brings men and women of all backgrounds to the has already been requested, on reform or replacement racetrack; the romance of town meeting country in of the levy to provide a sustainable, enforceable and the fellowship born of shared interests and pleasures; legally sound solution. Given that my noble friend’s the romance that causes—in jumps racing, at any department has also been brooding for some time on rate—thousands of people to support racing through the legal position in respect of the recent EU Commission attendance, sponsorship and, especially, ownership with ruling that approved the French parafiscal levy on no expectation whatever of seeing a return on their online horseracing betting, has it reached a conclusion? money. I think even those who have no interest in Might the Government now consider the Efford racing would accept that the sport is a valuable and amendments or something similar as this Bill progresses? much loved part of this country’s heritage. Will my noble friend take account of British racing’s On my own little track in Cumbria at the attractive own unambiguous legal advice that the collection of village of Cartmel, we race over seven days. Even levy from remote operators under a point-of-consumption there, we welcome 70,000 visitors, many from overseas. licensing regime does not constitute state aid? We cater especially for families and there is a funfair in Under this Bill, the Treasury stands to gain the middle of the course. On one of our festival substantially. I hope that my noble friend might see meetings there is a racecourse church service in Cartmel’s that to bring succour to an undeservedly troubled lovely priory church where local bookies fervently sector, with so slight a change and at no cost to the pray, so they tell me, that favourites will not triumph public purse, can only do good. To do otherwise on the following day. I suspect that we are the only would be a great disappointment to all of us who have racecourse in England to have a chaplain. We are very the interest of racing at heart. much part of the local community and inside the track is home to the cricket club—I think my noble friend 9.33 pm Lady Heyhoe Flint would approve of that—the football Lord Morrow (DUP): My Lords, the stated intention clubs, the scouts and the agricultural show. of this Bill, namely that all online gambling providers The impact of levy leakage on my track is in line wanting to access the UK market, no matter where with the problems faced by better known tracks. To they are located in the world, should be required to get spell it out would sound like special pleading. In truth, a UK Gambling Commission licence, is to be welcomed. we are better placed than many because we are so However, detailed examination of the actual provisions popular and because we have favourable fixtures. I in this Bill has led me to feel that, on balance, the Bill speak in support of racing in general. Former sports makes matters worse not better. Indeed, in wrestling Minister Mr Gerry Sutcliffe also contributed with with this question one is left with a more fundamental distinction to the debate in another place. The honourable question: what is the real purpose of this Bill? gentleman predicted that the issue would be heavily In the other place the Government claimed, as they debated in your Lordship’s House, given, have today, that this Bill is all about consumer protection. “the horse racing fanatics that are in the House of Lords”.—[Official It was suggested from other quarters, however, that Report, Commons, 19/11/13; col. 141.] the real guiding principle at work was a desire for I cannot imagine who the honourable gentleman had greater taxation revenue for the Exchequer. The notion in mind. The noble Viscount, Lord Falkland, hardly that all online gambling operators seeking to access fits that description, nor do my noble friends Lord the UK market should get a UK Gambling Commission Astor and Lord Risby. I do not think the noble licence certainly seems like an attempt to protect UK Baroness could be described as a fanatic. Sadly I fear consumers from providers that do not make the grade. that many of our best fanatics have moved on to In the first instance, we should surely stop depending pastures new, or fresh gallops. I am just a supporter of on the regulatory frameworks of the European Economic racing but I hope the Minister can help this evening. Area and the so-called white list jurisdictions, and In the course of this Parliament, British racing has regulate providers seeking access to the UK ourselves. received numerous commitments from the Government In the second instance, we should certainly do more to that they will fully reform or replace the levy which, in protect UK consumers from providers whose regulatory the view of the then Minister in the other place in regimes do not make the grade, rather than simply January 2011, was putting them on a theoretical black list. “if not broken, in the process of breaking”.—[Official Report, However, trading lazily on the regulatory frameworks Commons, 20/1/11; col. 1067.] of other jurisdictions has had an unintended consequence. However, nearly three years later, there has been no It has meant that online gambling providers based in material change in this situation, as has been underlined the UK could move to the EEA and white-listed so much this evening. The levy remains ineffective in jurisdictions, yet still be deemed to be sufficiently meeting British racing’s needs and it has required the regulated to advertise in the UK. In this context, all efforts of both the racing industry and forward-thinking but one online gambling provider relocated to white-listed elements of the British betting industry to agree voluntary jurisdictions where they could pay less tax. deals to mask the levy’s inadequacies. This is not Noble Lords will be aware that alongside the Bill sustainable—it is merely a sticking plaster. It is within there is a separate proposal that henceforth all gambling the scope and remit of this Bill for the levy to be providers with a UK licence must pay UK tax. The included. Amendments to this effect should be put idea is that we move from regulation and taxation at forward and accepted. the point of supply to regulation and taxation at the I gave notice, which I hope my noble friend received, point of consumption. Of course there is no reason of some questions. I urge him to provide a concrete why the interests of robust regulation and robust tax commitment to a consultation early in the new year, as legislation should not go together. I have nothing 1239 Gambling Bill[LORDS] Gambling Bill 1240

[LORD MORROW] When presented with a proposal for financial against making sure that online gambling providers transaction blocking or IP blocking in another place, accessing the UK market are properly taxed. My the Minister rejected both, at least for now. I found her concern, as I shall explain, is that the weakness of the approach profoundly unconvincing. In the first instance, regulatory framework proposed by the Bill is such that the Government seem to conflate IP blocking and it causes me to wonder whether its primary purpose is financial transaction blocking as if they are the same not actually being a means to the end of providing a and have the same results. Let me be very clear: they framework on to which the new taxation regime can are not and they do not. Evidence suggests that financial be hung. blocking is significantly more robust. Indeed, it works Before I look at what I regard as the three main well, as has already been stated, in places such as regulatory failings of the Bill, I shall pause to reflect Belgium, Estonia, France, Hungary, Israel, Malaysia, on the sad reality of problem gambling in the UK the Netherlands, Norway and the US, which deem it today, the reason why robust regulation of online worth while. gambling is so important. Some people almost dismiss In the second instance, I find the notion of mixed problem gambling as unimportant—this point has success in the context rather troubling. I assume by already been made by others today—on account of this the Government mean that it does not always the fact that in 2010 the problem prevalence figure was work, which is certainly true, but if in this imperfect 0.9%. The truth, however, is that that accounts for world we rejected all public policy solutions that were approximately 451,000 people in the United Kingdom. not always successful we would greatly restrict what Moreover, if we are to compute the real significance of we could do. The world would be much poorer on the problem, it is crucial to understand how one account of the misguided commitment to make excellent person’s problem gambling affects others. Last year the enemy of the good. If we had a mechanism available the Gordon Moody Association, which treats the most that could protect UK consumers from 50% of serious addicts, estimated that each addict, transactions with unregulated websites, it would be a “will have severely affected the lives of at least 15 others in order significant step forward—one we should take. to support their gambling”. Moreover, it is important to remember that financial We have to understand that gambling online has a transaction blocking is likely to be more successful in significantly higher problem prevalence figure than the UK than anywhere else, because in other jurisdictions gambling generally, another point that has been made where there is a closed market with a limited number today; the problem prevalence figure for online slots is of licensees or a semi-open market that allows any actually over 9%. number of licensees but only for some forms of gambling These statistics, though, are all a bit abstract. When there is a great deal more that needs to be blocked I think of problem gambling, I think of people such as than in the UK. In these environments, gamblers have Lisa Carville, an accountant from Northern Ireland incentives to try to bypass blocking to access forms of who stole some £50,000 to feed her online gambling gambling that are not permitted. However, that would habits between March 2010 and September 2011. I not be the case here in the UK where we do not also think of Michael Garner, a financial adviser who prohibit any form of gambling and allow anybody stole almost £1 million from friends, a charity and who meets our regulatory standards to access our investors to feed his online gambling habit between market. December 2011 and May 2012. Anna Mackenzie, If we do not back up the licence requirement with defending Mr Garner, told the court that he was financial transaction blocking, the simple truth is that remorseful and understood that his actions had devastated the primary implication of the Bill will be simply to the lives of himself, his family, his friends and his allow more gambling providers to advertise in the UK. victims. She added that his marriage appeared to be All those located in EEA and white-listed jurisdictions over and that his matrimonial home, his only asset, can currently advertise, but after this Bill all providers had been sold to help to pay off the civil claim made that get a licence will also be able to advertise regardless by the investors against him. These are just two examples of whether they are based in what is currently an EEA of the terrible social devastation that can be left in the white-listed or black-listed jurisdiction. wake of online gambling habits. Let me be very clear: I am not trying to argue for a split-second that this It is concern about the implication of the Bill for always happens or that it usually happens. My point is advertising in the absence of a credible enforcement simply that it does happen and that there is a very regime which takes me to the second major worry serious obligation on us as legislators to make sure about this Bill. While it proposes making problem that the online gambling industry that this Bill addresses gamblers in the UK more aware of online gambling is robustly regulated. opportunities that can get them into difficulty, it introduces With this in mind, I suggest that the Bill has three no compensatory measures to provide problem gamblers major weaknesses. The first problem is that this legislation with additional help in the context of the new environment. provides no credible enforcement mechanism. You To really understand this deficiency in the Bill, however, cannot say on the one hand that we want to protect one must understand the problem with the current British consumers and so require all online providers system. that want to access the UK market to get a UK One of the key accepted mechanisms of helping licence, and at the same time do nothing to prevent problem gamblers is through the provision of self- those who do not have a licence accessing the UK exclusion. Put simply, self-exclusion allows someone market. Such a strategy is nothing more than an with a gambling problem to take control by self-excluding exercise in wishful thinking. from gambling providers for a certain period; say, five 1241 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1242 or six months, or whatever it might be. This mechanism secure exchange of anonymous data. It allows operators is credible in an offline environment. It recognises that to check whether a player is on a central list of players people suffering from a gambling addiction will have who have self-excluded. days when they are stronger and able to take steps to Gainsbury also argues that collaborative efforts try to break free. On such a day it would be possible would help strengthen self-exclusion and that, for a gambler to visit all five betting shops in his town “regulatory efforts may be required to prompt operators to enact and self-exclude for five months, providing him with such measures”. an opportunity to get help and to try to put his life A one-stop shop amendment was tabled in the Commons back together. in Committee and on Report in the other place. Although This, however, simply does not work in an online both were defeated, the majority was not great, and environment because, after you have self-excluded from the Government did not seem to have compelling five online gambling websites, hundreds if not thousands arguments with which to oppose them. of sites are equally available. Denying online gamblers I very much hope that the Government will reconsider a credible self-exclusion mechanism is, I believe, a and recognise that if their claim to have regard for matter of discrimination, one that exists without the problem gambling and the suggestion that this Bill is Bill before us today. Mindful of this current injustice, I about consumer protection is to have any credibility, find it quite inconceivable that the Government should they must, at an absolute minimum, ensure that the consider introducing the Bill, which proposes widening core advertising proposal in this Bill is complemented the scope for problem gamblers to be made aware of by a strategy to help online problem gamblers in the online gambling opportunities, without at the same form of credible self-exclusion. time providing any compensatory help for online problem My final problem with this Bill relates to the detail gamblers. We should, at the very least, provide online of the general UK regulatory framework. If this legislation gamblers with a credible self-exclusion opportunity. becomes law, those websites currently supplying UK When the Minister in another place was confronted customers that are subject to the regulatory regimes of with this idea, she had nothing of any great substance the EEA or white-listed jurisdictions will instead be to say. She suggested that the industry was doing a subject to UK regulation. At the moment, if they good job and that she wanted to give it more time, decide to relocate back to the UK, player protection although she failed to outline what it needed time to will in some cases be eroded. It is therefore important do. She did not say that she had asked the industry to that our licensing is amended to provide the same level introduce a one-stop shop for self-exclusion. The Minister of regard for the problem gambler as the licensing also made the assertion that introducing a one-stop regimes of the best EEA or white-listed jurisdictions. shop would be complicated. I have no doubt that Alderney, a jurisdiction to which some UK online introducing a one-stop shop would present some gambling providers relocated, offers player protection challenges, but I do not believe that there is any that is superior to the UK licensing regime. The Alderney evidence that they cannot be dealt with. The question Gambling Control Commission gives any player the that we have to ask is: can we be bothered to do the right to tell a company the limits on their gambling additional work to protect online gamblers? One would that they want to set themselves. This means they can hope that the answer to that question, in considering a inform a company that they wish to set such limits to Bill that the Government say is all about consumer the amount that they can deposit during a specific protection, would be a positive yes, but apparently period, or to how much they may lose by reference to a not, at least in the other place. number of gambling transactions or a period during As others have noted, Dr Sally Gainsbury, author which the amount can be lost. Setting such personal of Internet Gambling: Current Research Findings and limits is one way in which gamblers can ensure that Implications, published by Springer in the SpringerBriefs they gamble within their means, without chasing their in Behavioural Medicine Series 2012, states: “Significant losses and without spending too much time gambling. limitation”—of self-exclusion, that is— Those are all signs that a problem is developing. Just last week, I visited Sweden on a different “is the lack of collaboration between different online gambling matter altogether, but I want to draw the House’s sites and venues so that excluded individuals may find it easy to gamble at other sites or venues”. attention to what happens there. Players in Sweden are given the option to make use of a technology called Gainsbury follows through on this by making two play scan. This helps and guides players in their gambling important subsidiary points. First, she argues that the activity, warning them about increased addiction or UK system particularly lends itself to the provision of significant changes in their behavioural activity. The a one-stop shop because of our licensing framework: prompts are in the form of green, yellow and red-light indicators. When a player’s behaviour changes, a message “It is a UK licensing condition to maintain a register of self-excluders, including an appropriate record of identification informs them immediately. details and payment cards. Although care must be taken to A further example is in the area of online poker, a protect customers’ identity, data encryption programs can be used style of gambling which the Swedes have designated to protect sensitive details, and it may be possible to encourage as being particularly related to problem gambling. In operators to share details to enable wider self-exclusion programs”. Sweden, a player needs to apply for a card, which has a Secondly, Gainsbury is very clear that the technology specific number associated with it. Gamblers authorise is present to deliver a one-stop shop. She cites a the transfer of funds from a linked account to the program called VeriPlay.com, already referred to in card, and any winnings are paid automatically into the this debate, developed by Bet Buddy, which allows the gambler’s account. To play, customers are required to 1243 Gambling Bill[LORDS] Gambling Bill 1244

[LORD MORROW] I am sure that the Minister will say that the levy is set time and money limits. The setting of limits is the 50 years old and needs fundamental reform. We know main function of the card, but it also offers play that; as I said, we have been discussing it for quite management features—including a summary of player some time. Now there is an opportunity to make some history for the previous 12 months—allows for a “time progress in the meantime. The Government have said out” and offers risk assessment. that they will consult, and come to Parliament with a In October, the Prime Minister said that he wanted, proposal. However, when the Minister in another place “a fair and decent approach that prevents problem gambling”.— summed up, she said that she was not, [Official Report, Commons, 23/10/13; col. 299.] “prepared to risk jeopardising the financial stability that has been But the approach given in this Bill is neither properly achieved by the four-year voluntary agreements by extending the levy to offshore bookmakers”.—[Official Report, Commons, fair nor decent. I very much hope that it will be Gambling (Licensing and Advertising) Bill Committee, 19/11/13; amended to deliver financial transaction blocking, a col. 141.] one-stop shop for self- exclusion and a regulatory But there is no financial stability, because offshore framework that is at least as good as the best EEA or bookmakers are not paying any levy. We have an white-listed jurisdiction with respect to care for online opportunity to put an amendment before your Lordships problem gamblers. in Committee that will allow the Government, if they wish, to extend the levy to offshore bookmakers. That 9.53 pm would give them the opportunity to consult in Europe Viscount Astor (Con): My Lords, I welcome this and to do, in effect, what the French have been doing. Bill. It will mandate all remote operators in the British Racing is missing out. That is a point that has been market to provide governing bodies such as the British made by almost everyone who has spoken this evening. Horseracing Authority with information on suspicious The second issue I want to raise concerns casinos. It betting patterns. However, it is a pity that the Bill does is similar to the issue raised by my noble friend Lord not go further with regard to racing, and I hope that Clement-Jones. The Bill will mean that online gaming the Minister will be able to give us some comfort companies selling into the UK market are licensed particularly on the levy. and regulated at the point of consumption, rather At this stage, I should declare my interests: I do not than where they are based. This is a major improvement, think that I have problem gambling; I have owned a which I welcome. However, there is an anomaly here. few problem horses, particularly the last one, which Punters can play on remote internet sites on their last year managed to canter down to the start rather mobiles or computers while at home or on the move, faster than she came back—that is certainly not what in any public place, or even inside a casino. But casino they are supposed to do. However, I always remain an operators, who often also hold a remote licence, are optimist and I have a leg in another horse, which will not allowed to show or advertise their products in be running next season, and I can assure your Lordships their casinos, or to show that there is an opportunity that it is bound to do better—it cannot do worse to use a computer. This makes promoted online gambling anyway. I should also say that I once rode a winner in a casino illegal—yet not illegal if unpromoted, if it over the jumps, but that was quite a long time ago. is on one’s own mobile or computer. That seems a Offshore betting operators do not contribute to the strange state of affairs. As casinos are the most highly levy. The Government have in the past used concerns regulated and inspected of any gaming premises, it that the European Commission would use the concept looks bizarre. Many of them already provide their of state aid as a reason not to act, but following the customers with laptops, iPads and other computers. ruling from Brussels on the French levy those concerns I understand that the Minister in another place said have disappeared. The European Commission approved that the anomaly could be corrected by secondary the French parafiscal levy on online horseracing betting, legislation. It would be helpful if the Minister, when so we now know that that reason is not an obstacle to he sums up, could say whether there has been any action. Reform of the levy would not constitute state progress on this, because if secondary legislation is not aid, and neither would a point of consumption licensing going to work, this Bill provides an opportunity for us regime. The omission is costing the racing industry to change that anomaly. I very much hope that the about £20 million a year in lost revenue. Minister will be able to look carefully at these issues. This has been a complicated issue, whose solution has defied Governments over the years. For as long as 9.59 pm I can remember being in this House we have discussed Lord Stevenson of Balmacara (Lab): My Lords, I replacing the levy—and I have been here quite a long thank all speakers in the debate, which has been a bit time. This Bill would be the perfect vehicle not to of a ride round the various possibilities that gambling reform the levy but to close the offshore gambling opens up to us. It has been a bit like “Gambling loophole. Anonymous” from time to time. I was interested to The racecourses, and racing itself, could act. If the hear some of the comments that have been made, and racecourses did not accept prize money or sponsorship I am grateful to the noble Lord, Lord Cavendish, for from gaming companies that do not pay the levy, that his invitation to lunch, which I am sure many of us would force the issue, as bookmakers need to be close will want to take up at some time. I am not sure to their customers. Two amendments were tabled in whether I was pleased with the tips given to us by the another place, but were rejected by the Government. noble Viscount, Lord Astor; I could not quite tell There is an opportunity for us to rethink here; after whether he was telling us to avoid his horses or to all, we are a revising Chamber. follow them—but I shall certainly reflect on what he 1245 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1246 said. An even more startling observation has unfortunately this shift to a point-of-consumption basis for operating not yet reached your Lordships’ ears, but I am sure the regulatory function parallels the change to a point- that it will come out in Committee. Just as I was of-consumption taxation. At least in his words, that is standing up, my colleague on the Front Bench, my what is driving the Bill. In order to get the tax take of noble friend Lady Jones, confessed that her main about £300 million, which has already been scored in ambition when she left school was to become a jockey. the Budget accounting, a deal has to be done to I had not expected that; however, we are of course introduce light-touch regulation, otherwise we will very grateful that she has managed to avoid that career frighten the horses—I am sorry about that metaphor. choice and join us here. I hope that we will learn about that in the Minister’s response. The Bill has been a long time coming. Online gambling was first regulated in the United Kingdom We have before us—and we can only discuss—this in 2007. Since that time all but one of our major rather slim five-clause Bill that deals with the licensing online betting companies have moved offshore, primarily of remote gambling at the point of consumption. That to avoid taxation. They have justified that decision by is not contentious: virtually everyone, including large claiming that it was necessary to remain competitive. parts of the gambling industry, although perhaps not Underlying a lot of the comments that we have heard those in the white list countries, is in favour of that. this evening has been a concern that tax and other The delay in bringing the Bill forward could be understood issues ought to be paid by those who make a living out if it addressed many of the issues that have come to of offering gambling services in this country. However, light since 2007, but it does not do so. we should recall that that was the justification behind The Gambling Act 2005 was a major piece of the decision when they left in the first place in 2007. legislation that has largely stood the test of time. As has been said, the consequence is that those operators When the legislation was put in place, the then are outside UK regulation, which is an unacceptable Government said that the issues in the Bill would have situation and needs to be tackled. However, as my to be kept under review. A number of areas have noble friend Lady Pitkeathley reminded us, there is a subsequently come to light, such as online gambling, downside for the white list jurisdictions, many of which has grown exponentially over the past few years, which have operated to very high standards for so and we accept that revised regulation is necessary. many years. We will have to pay some regard to those However, the Bill deals solely with matters that have as we make further consideration of the Bill. been under consideration for four years or more, and The need for changes in the licensing of remote over which there is pretty much unanimous agreement. gambling operators was identified by the previous It is a matter of some regret that the Government have Government, and much good work on that issue was not taken the opportunity to deal with the many other done before the last election. Therefore given what I issues mentioned tonight that have boiled up in the have said, it will be clear that we support this modest intervening period and which need to be addressed. Bill, in principle, although there are many areas which Gambling is enjoyed by more than 56% of the we think need to be strengthened, and there are, as has population, and the figure rises to more than 70% if been pointed out during this debate, a number of the purchase of lottery tickets is included. One should rather alarming gaps. include that; I think that as the noble Lord, Lord In 2009, the then Minister for Sport, Mr Gerry Clement-Jones, mentioned, there are still some concerns Sutcliffe MP, ordered a review of overseas gambling about other lottery operators, which could be considered operators which advertised in the UK. In 2010, the within the Bill. As we said, we welcome the move to previous Government began the consultation on extending create a level playing field between the operators which Gambling Commission licensing to include online have remained onshore, and those which have moved gambling operators which offer services in the UK. offshore, and we would like to make sure that the Consultation responses were published after the general approach which removes the divide between them is election in July 2010, but it took a full year before the pursued. But as the noble Baroness, Lady Howe, and Government issued a Written Statement on the plans the noble Lord, Lord Morrow, have mentioned, we are to legislate. The draft Bill was published in December worried about the paucity of sanctions included within 2012, and the Select Committee published its report the Bill, which are neither financial nor operational. It on the draft Bill in May 2013. Therefore it took four was the noble Baroness, Lady Howe, who said it was and a half years and four Ministers, but we have all carrot and no stick. We will be pushing for amendments finally got the Bill, even if it is rather slim pickings. in Committee which will perhaps bring in some of the blocking technology to which she referred. What was all the waiting about? As the noble Lord, Lord Clement-Jones, identified, clearly the loss of On match fixing, the European Parliament has just taxation revenue is the real driver of this regulation called on all EU Governments to make match fixing a move. When he comes to respond, perhaps the Minister criminal offence. This has been supported by the Sports could say where things have got to. In August 2013 Rights Owners Coalition and David Collier, the chief there were reports that a deal had been done, and the executive of the England and Wales Cricket Board, figure of 15% was mentioned. Of course it would be who, through his sport, is at the forefront of trying to quite inappropriate for a mere Minister in a department ensure that every country across the world has an to mention taxation, which is a matter reserved for the effective a regime as possible. The noble Baroness, Chancellor of the Exchequer. However, perhaps a hint Lady Heyhoe Flint, made good points on this matter about where we are on this might not go amiss. The that we think we would support; we hope she will noble Viscount, Lord Falkland, made the point that consider putting down amendments in Committee. We 1247 Gambling Bill[LORDS] Gambling Bill 1248

[LORD STEVENSON OF BALMACARA] Morrow, gave about those who had suffered under this wonder why the Government have not used or looked was shocking. It is surely our duty as legislators to again at the Gambling Act 2005, as the power in that make sure that we create a safe and well regulated Act to tackle match fixing is too loosely defined, and environment in which people can enjoy the pleasure indeed was not used in the recent case of the Pakistani that they experience from gambling, but not suffer the bowlers, who were prosecuted under fraud laws. consequences if they have an addiction. In this context it is surprising, as many noble Lords The noble Baroness, Lady Howe, mentioned the have mentioned, that the Bill contains no measures to worry about advertising, and the way in which that ensure that spread betting is licensed in the same way reaches those who already have vulnerability. A number as other forms of betting. It is my understanding that of noble Lords also picked up the need for a proper this is because spread betting is seen as primarily a self-exclusion system. This is something we are sure we financial transaction rather than betting in the way it will return to in Committee. is interpreted in the Act. Therefore the consequence would be that the regulation should lie with the FCA. The horseracing betting levy has been a problem But the logic of this escapes me. Surely it is better for for successive Governments over a number of years. I one body to have overall control in this activity, particularly listened with interest to those with more expertise in as we realise that spread betting is now being provided this area than I will ever have about some of the ways by companies that also provide betting services. As in which we might address this. The problem that was was argued in another place, the Bill should deal with picked up in another place was that the Government the issue both in terms of principle and practicality. If do not seem ready to come forward with proposals; there is not to be single responsibility, there should be they are not relying on the existing model but are not a common approach, such as licence conditions mentioned yet sure about which one they would like to pick. Of by the noble Baroness, which we support. Otherwise course, Governments do not pick winners; it might be the information about the cancer of match fixing will worrying if they did start to do that, particularly in never be obtained. this area. But, levity aside, this is obviously something that needs to be resolved, and it would be interesting if A number of Lords, including the noble Viscount, the Minister could do so when he responds. Lord Falkland, and the noble Lord, Lord Clement-Jones, mentioned pre-watershed advertising. The noble Viscount, On the one side, there are the points that my noble Lord Falkland, says it does not matter about advertising. friend Lady Pitkeathley mentioned about the vibrancy I fundamentally disagree on this point. Anybody who of the existing situation, which has been supported has watched television recently would be aware that by this recirculation of cash. But of course many the amount of advertising, and the sharpness of it, has industries could argue that the betting or gambling now much increased. Although we had a recent report industry takes from them the benefits and intellectual from Ofcom which described the volume of advertising property, as it were, of the activity that they are and the limits on it due to the restrictions on the involved in but does not in any sense put back sufficiently watershed, it is clear that there is a big loophole which into grass roots or other activities. So there is a broader needs to be looked at. This is the situation affecting discussion here as well as the narrow one about what games that are sports fixtures that start before 9 pm, to do about the levy. Clearly, something must happen for which advertising is allowed, and therefore which in this area, whether within the Bill or some time in the reaches not only problem gamblers but also children. very near future. At least the Minister could give us We think there is a need for an amendment in this some advice about where he is on this; that would be area, and would be interested to see whether there helpful. would be support for that around the House. On the list of issues that we might want to come A number of noble Lords have picked up on problem back to in Committee there is a question that has not gambling. The figures are difficult to find. This is yet been mentioned, which the Government have said primarily because the gambling prevalence survey, that they would act on—the question of unclaimed which last took place in 2010, has been abolished, so winnings and dormant accounts. We are talking about we have very little empirical evidence. But I think we bets that are void because the horse did not run, about are agreed. My figures said 450,000, but the common unclaimed winnings and about the accounts of people consent for those other people who have mentioned it who have left money sitting in them for more than a is 451,000 people who seem to be affected by problem year. That seems to be part of a category of unused gambling. I am sure the 1,000 will make a big difference funds which in many areas there are plans to begin to to our thinking on this matter. On the one hand we use, and it is equally true in the area of gambling. The have an NHS which provides support for those who money could be put to use for treatment for problem have addiction problems with drink and in other areas, gambling, or support for education about gambling, but does not deal specifically with gambling. In this perhaps even into grass roots. If the Government are situation we have to be careful, as we tread a difficult not ready to legislate for this issue, although they have path between a wish to promote an industry from said that they would like to, I suggest to the Minister which people gain a great deal of pleasure, and the that we require some information here at least, perhaps responsibility to protect the vulnerable. from the betting operators as part of the licence, to As has been mentioned, online gambling is of particular record exactly how much and what they hold in dormant concern. It is possible for vulnerable adults to indulge betting accounts and unclaimed winnings, so that, their addiction without leaving their homes, and hence when or if the Government decide to legislate, they to suffer alone while running up debts that they cannot will be able to do on the basis of sure and certain hope to pay. The figure that the noble Lord, Lord knowledge. 1249 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1250

In conclusion, we welcome the Bill as far as it goes, that the Government are committed to taking the but as I hope I have made clear tonight, it needs to go opportunity to consider genuine levy reform and to much further. I hope that the Minister will recognise consult widely on any sustainable, enforceable and that this is not at heart a partisan issue, but something legally sound options that emerge. My noble friend on which we think we could work together, because Lord Risby mentioned the consideration of a sports there is a need for a rethink on a number of issues. We betting right. The Government will consult on any need to consider seriously some amendment to come legal, sustainable and enforceable option for levy reform. from all parts of the House, which would make for a At this stage it is unclear whether a racing right might good Committee stage—and from that would come an meet these tests but I would not rule out the matter. improved and refined Bill. There is good work in the My noble friends Lord Astor and Lord Clement-Jones 2005 Act, which is the basis on which we operate, but raised casinos and spoke about restrictions on remote we want to improve it where we can, and this Bill will gambling in casinos. I welcome the opportunity to help us to do that. We look forward to working with confirm the current position. Customers are able to the Government and others in this House to create a use their iPhones and iPads in casinos to use remote licensing system that is the gold standard for the sites as they can everywhere else. This is about casinos world. being able to promote and encourage play, and that is why it is properly managed within gaming machine 10.12 pm regulations. The Government have agreed to review Lord Gardiner of Kimble: My Lords, I start by the issue of remote gambling provision in casinos, but thanking all your Lordships for the wide-ranging and this must be progressed in a considered and balanced informative debate that we have had tonight. A number way, and subject to proper consideration, impact of questions have been raised, and I hope that your assessment and consultation. It may be that there is a Lordships will forgive me if I try to gallop through as case for some relaxation subject to certain safeguards, briskly as I can. I will write, as so many points have but we must ensure that existing controls on stake and been raised during the debate. prize limits are not undermined. Discussions with the First, on the betting levy, a number of your Lordships industry have commenced and will conclude by the have raised this. It was extremely useful to have the end of March of next year. My noble friend Lord arguments aired. It is undoubtedly the case that racing, Clement-Jones mentioned the portability of casino which is the second most attended sport after football licences. The Government are in discussion with the in Britain, is immensely important to many people. I casino industry over a range of proposals to provide should declare an interest in that there is a point-to-point greater regulatory flexibility.Portability of casino licences course on the family farm in Kimble and I am very forms part of these discussions. much aware of amateur racing—so I was particularly The noble Lord, Lord Stevenson of Balmacara, interested in the racecourse of my noble friend Lord and my noble friend Lady Heyhoe Flint raised the Cavendish, where I remember a horse of my grandfather issue of sports integrity. It is absolutely clear that winning. I also remember the fairground, which was match fixing undermines the very essence and integrity going merrily while the racing proceeded. It is clear of sport and there is no place for it in any sport. This that training yards and racecourses up and down the Bill will ensure that overseas operators selling into the country are playing their role in what is a huge part of British market are required to obtain a Gambling the rural economy.The noble Baroness, Lady Pitkeathley, Commission licence. This will mean that the protections mentioned members of her family. I have sat on horses of the Gambling Act—in particular those afforded by and ridden, probably behind a pack of hounds, with licence condition 15.1 on reporting suspicious betting her son-in-law. The horse is hugely important in the activity—are applied on a consistent basis to all operators way of life for many hundreds of thousands of people active in the British market, regardless of where they in Britain, whether they spectate, ride horses, or admire are located. More generally, the Secretary of State had everyone that prepares horses. a really positive meeting last week with the big sports The levy is a complex issue and the Bill is not the governing bodies and the Gambling Commission to right vehicle in our view to achieve what I would like discuss what more can be done to tackle this. A number and what many noble Lords seek. The levy itself is of actions have been agreed and further discussions now over 50 years old and it is widely agreed that it is will take place in the new year. in need of reform. We must look beyond simply extending My noble friend Lady Heyhoe Flint and the noble a system that it is agreed is out of date and we need to Lord, Lord Stevenson, also raised the issue of sports reflect a vastly different set of circumstances from spread betting and the requirements on spread betting those that existed 50 years ago. operators. The Financial Conduct Authority is in the My noble friend Lord Cavendish, the noble Baroness, process of preparing guidance to the principal two Lady Pitkeathley, my noble friend Lord Clement-Jones sports spread betting firms operating in the United and the noble Lord, Lord Risby, raised the recent Kingdom to reinforce the current requirements. It is European Commission ruling in relation to the French the FCA’s intention that where parity with the Gambling parafiscal levy.This is a potentially interesting development Commission licence condition 15.1 can be achieved, and its impact is being assessed currently by the the individual guidance to sports spread betting operators department. It does not mean, I am advised, that the will reflect this. I confirm that this guidance will be UK would not similarly be required to seek similar EC published in the new year. approval. My advice is that an amendment of the levy A number of your Lordships mentioned problem reform raises state aid issues and will need the approval gambling, and the noble Viscount, Lord Falkland, of the European Commission. I reassure your Lordships asked for some costs relating to that. My understanding 1251 Gambling Bill[LORDS] Gambling Bill 1252

[LORD GARDINER OF KIMBLE] The help note will include new, specific guidance on is that GamCare has calculated that every problem free bets and bonus offers to make explicitly clear the gambler costs the state £8,000 each year. The noble requirements on those marketing such offers. It will Baroness, Lady Howe of Idlicote, and the noble Lord, underline the need for them to give appropriate Lord Morrow, particularly highlighted the distress prominence to any significant conditions associated and upset that it causes to wider family members, and with their offers. Therefore, I assure your Lordships we must not forget that. that the Government take this matter extremely seriously. A number of issues were raised concerning self- Work is under way and we need to keep that under exclusion lists. My understanding is that the Gambling review. Commission has already asked the Responsible Gambling My noble friend Lord Clement-Jones mentioned a Strategy Board to look at the effectiveness of self-exclusion kitemark. The Government are committed to ensuring as a tool, and the Responsible Gambling Trust work progress on the work that the Gambling Commission programme is also taking forward work in this area. In has already commenced to make sure that consumers addition, the Remote Gambling Association convened can quickly and clearly establish that they are transacting an industry cross-sector meeting earlier this month to with a British licensed site. improve co-ordination and collaboration on developing A number of your Lordships, including the noble options in relation to self-exclusion. The European Baroness, Lady Howe, and my noble friend Lord Commission’s expert group is also looking into this Clement-Jones, mentioned blocking. The Government matter. want to continue to develop understanding of this The noble Baroness, Lady Howe of Idlicote, mentioned important emerging area. We do not rule out blocking a one-stop shop. We are not ruling that out in the in the future should it become appropriate, necessary future, but the truth—and it may be an inconvenient and demonstrably effective. I would very much welcome truth—is that it would involve certain complexities discussions with those of your Lordships who would and practicabilities. Although at this stage we would be interested in exploring this further. Where illegal not wish to legislate, we want to look into the matter, operators attempt to target British consumers, the and perhaps, in the series of meetings that I referred Government and the Gambling Commission are confident to, there is a discussion to be had on that with the that action can be taken through existing enforcement noble Baroness. This matter was raised, in particular, mechanisms to disrupt and stop unlawful gambling. by the noble Lord, Lord Morrow. I reassure your These include action on illegal advertising, player Lordships that the Government take the problem of education and, ultimately, prosecution. gambling extremely seriously. The figure that I stated suggests that any Government should and must take it Turning to the point made by the noble Baroness, seriously. Indeed, operators are required by licence Lady Pitkeathley, about the Channel Islands and her conditions to commit to contributing, and say how championing of the islands, I understand that the they will contribute, to the identification and treatment Gambling Commission is working very closely with the of problem gamblers. Alderney Gambling Control Commission to ensure that there is minimal disruption and minimal burden The gambling industry has committed to bring in a on operators. Following on from that, my noble number of enhanced player protection measures, including friend Lord Clement-Jones asked about transitional for users of fixed-odds betting terminals, such as arrangements for white list licence holders and EEA voluntary time and monetary limits—for example, holders. The repeal of the white list will not create after 30 minutes of play a machine will pause. These disruption for operators who have an existing entitlement measures will be in place by 1 March next year. We to operate in Britain under an EEA or white list expect the industry to implement these new measures jurisdiction licence. They will be granted a continuation swiftly and to monitor their effectiveness closely. licence for their existing activities if they apply for an One of the three licensing objectives set out in the advanced application before the cut-off date. Gambling Act 2005 is to protect children and other The Government have been working closely with vulnerable adults. It is a condition of an operating the Gibraltar Betting and Gaming Association to seek licence issued by the Gambling Commission that an a remedy in the best interests of British consumers. operator must have, and put into effect, policies and Officials have met with the Chief Minister of Gibraltar procedures to prevent underage gambling. This Bill and the GBGA, and there will be further meetings to will mean that all remote operators wishing to sell to discuss these matters. The Government have also hosted or advertise in the British market will have to comply delegations from the Gibraltar Government and the with that condition. GBGA in London. The Government very much look I was intrigued by the views of the noble Viscount, forward to continuing a positive and productive Lord Falkland, on advertising. The Government relationship with Gibraltar. acknowledge the growth in gambling advertising that My noble friend Lord Clement-Jones asked me has occurred since the Act commenced in 2007 following quite a lot of questions. If he will forgive me, I shall the introduction of greater freedoms. The Government address his points in a letter, which would be the best are examining what impact this might be having on way to ensure that your Lordships do not have such a the licensing objectives of the Gambling Act and late night. We are confident that the Bill is compatible whether the current arrangements remain adequate. with EU law as a proportionate measure for achieving The Committee of Advertising Practice and the the legitimate purpose of consumer protection. The Broadcast Committee of Advertising Practice are about Government have been clear that this Bill is independent to publish significantly expanded guidance on gambling. of any tax changes. My noble friend also asked about 1253 Gambling Bill[17 DECEMBER 2013] Gambling Bill 1254 the Full Tilt case. Consultation by the Gambling it would be appropriate only to consider the Commission on the protection of customer funds recommendations from the report once our proposals closed on 4 December. The commission is analysing for remote gambling have been implemented. the responses and will publish its response to the I say to the noble Lord, Lord Morrow, that this is a consultation in the new year. It is vital that the society small and significant Bill. Its intention is about protection lottery consultation considers carefully the impact on for remote gambling consumers based in Great Britain. all society lottery operators and not only the Health It will also ensure that all remote gambling, wherever Lottery.In that regard the Government are still considering the operator is based, is licensed by the Gambling the nature of proposals and will set out their approach Commission and subject to its robust and consistent soon. standards and controls. I am sure that a number of your Lordships would It has undoubtedly been a debate in which a wide like to draw me on taxation but tax matters are for the range of points were made. I fully confess that I have Treasury and continually kept under review. From a not been able to respond in the detail that many of regulatory point of view, whatever the tax rate adopted your Lordships might have preferred. These are important by the Treasury, the key issue is whether the Gambling issues that we need to consider further. I hope that Commission has all the necessary enforcement tools many of your Lordships will come to further meetings at its disposal to minimise any illegal activity. The before Committee, during which time the Bill team Government are confident that the Gambling Commission and I would be happy to give further explanation and has the right tools to take effective action against listen to the points raised to see what progress we can illegal operators and deter unlicensed companies from make. But for the purposes of tonight, I commend the entering the market. Bill to the House and ask for it to be given a Second The noble Lord, Lord Stevenson of Balmacara, Reading. mentioned dormant accounts, which is an important issue. This Bill will make significant changes to the Bill read a second time and committed to a Grand manner in which a large number of betting accounts, Committee. including those that are currently dormant, are regulated. That is why the Government have been clear that House adjourned at 10.30 pm.

GC 255 Arrangement of Business[17 DECEMBER 2013] Armed and Reserve Forces Order 2013 GC 256

access to carer’s allowance. The provisions relating to Grand Committee the Christmas bonus will ensure that all recipients of AFIP automatically qualify for the tax-free, lump sum Tuesday, 17 December 2013. Christmas bonus of £10. By putting in place the provisions to give AFIP Arrangement of Business recipients resident in Northern Ireland access to the additional benefits, schemes and services that are Announcement offered by other government departments, devolved Administrations and local authorities, the Government 3.30 pm are giving them treatment equal to that offered to service personnel and veterans resident elsewhere in The Deputy Chairman of Committees (Baroness the UK. It is important that we address these issues, Harris of Richmond): My Lords, if there is a Division meeting the principles at the heart of the covenant in the House, the Committee will adjourn for 10 minutes. across all Administrations for members of the Armed Forces and veterans who are seriously injured. I hope Armed Forces and Reserve Forces the Committee will therefore once again approve the (Compensation Scheme) (Consequential order today. Provisions: Primary Legislation) (Northern Lord Empey (UUP): My Lords, the Minister will Ireland) Order 2013 know that my interest in these matters goes back to Motion to Consider the passage of the Armed Forces Bill in 2011, when a number of amendments were discussed in relation to 3.30 pm ensuring that the military covenant was applied universally Moved by Lord Astor of Hever throughout the United Kingdom, particularly in Northern Ireland. One of the points made at that time was that That the Grand Committee do consider the Armed many of the services that are required to be provided Forces and Reserve Forces (Compensation Scheme) for soldiers, former soldiers and their families are (Consequential Provisions: Primary Legislation) devolved matters in different parts of the United (Northern Ireland) Order 2013. Kingdom. The question then arose: how could the Relevant documents: 15th Report from the Joint Secretary of State for Defence prepare and deliver a Committee on Statutory Instruments. report to Parliament, given that he or she would not be in control of many of the services required in the The Parliamentary Under-Secretary of State, Ministry regions? It was also based on the general principle that of Defence (Lord Astor of Hever) (Con): Noble Lords these services should be as universally available to may recall that I led a debate on 15 October this year, eligible personnel throughout the UK as possible. introducing this legislation specifically for those seriously There are a couple of aspects to this. I understand injured service and ex-service personnel resident in the technical matters that the Minister has addressed, Northern Ireland who are entitled to an Armed Forces and the fact that the legislation has had to be reintroduced. independence payment, or AFIP.This legislation provides However, I seek the Minister’s assurance on a couple access to additional benefits, schemes and services, of issues. First, the welfare issues are currently before known as passported benefits. The Motion was passed the Northern Ireland Assembly. I have no doubt that by the Committee but, due to a procedural error in the amendments will be tabled in that Chamber. Whether progress of the statutory instrument in the other place, they affect any of this is unclear, but sooner or later the legislation must be debated again before it can the Welfare Reform Bill will be passed in Stormont, come into force. and then we will see where that takes us. Any amendments Although the AFIP has been available to seriously may well involve a cost to the Northern Ireland Assembly injured service and ex-service personnel resident in from the block grant. I think people realise that is the Northern Ireland, the legislative changes to provide case. access to passported benefits have not been implemented. The issue that concerns me more than that is that A second statutory instrument, amending secondary the Minister is saying that the Government have received legislation, will be in place shortly. Today’s debate the consent of Northern Ireland Ministers from the gives Members a second opportunity to debate this relevant departments for these proposals. Does that legislation. It provides access to two minor but important mean that the Government will require a legislative legislative changes in respect of carer’s allowance and consent Motion to come from the Stormont Government the Christmas bonus. or the Assembly, or is there sufficient administrative This legislative change will ensure that those who flexibility for Ministers in Northern Ireland, on their provide invaluable support to seriously injured members own, to give the Minister and the department the of the Armed Forces in receipt of AFIP have access to assurances they seek? carer’s allowance in Northern Ireland from the The second point is one I made during the passage Department for Social Development. Carer’s allowance of the Armed Forces Bill, and I know the Minister is is currently £59.75 per week. This change will make aware of my concern. Although the fact—if it is the provision specifically for those who devote their lives case—that he has the consent of Northern Ireland to supporting our seriously injured people, providing Ministers is welcome, Ministers in various departments some financial support for doing so. It is only right will change from time to time. Therefore, the consent that a person caring for an AFIP recipient should have of Ministers cannot be guaranteed in the long term. GC 257 Armed and Reserve Forces Order 2013[LORDS] Smoking: E-cigarettes GC 258

[LORD EMPEY] lost out as a result of this apparent delay in bringing What does the Ministry of Defence do in the event of the order into effect for the reasons the Minister a Minister refusing his or her consent? That was a mentioned. point I made during the passage of the Bill. In the short term there is no problem; however, in the long Lord Astor of Hever: My Lords, I thank the two term there may well be one. noble Lords for their contributions to the debate. I I therefore seek an assurance from the Minister that very much agree with the noble Lord, Lord Empey, the Government will take all necessary steps, legislatively that all services and benefits should be universally if necessary, to ensure that the services provided to available throughout the United Kingdom. injured personnel and their families will be provided Five Ministers of State for Northern Ireland provided throughout the United Kingdom, even if there is consent for these amendments to be made. The opposition from the local Administrations. I fear that departments are the Department for Social Development, a pattern has developed whereby we are hiding behind the Department of Justice, the Department for the Sewel convention, to the extent that it is now Employment and Learning, the Department of the regarded as a shibboleth. Is Parliament devolving Environment and the Department of Health, Social powers or giving them away permanently to local Services and Public Safety. No further Northern Ireland Administrations? That is a big issue for devolution government approval is required for this SI, but the generally. noble Lord asked me about a possible future situation The specific issue before us is that currently the where a Minister refused consent. I am afraid that I do consent of Ministers in Belfast is required. I understand not have an immediate answer with me, but I undertake that. At the moment, it appears that that consent is to write to the noble Lord on this important point. being given, and I am glad about that, but in the long term it might not be. I say to the Minister that when The Deputy Chairman of Committees: My Lords, the next Armed Forces Bill is introduced, which I there is a Division. We will return at 3.52 pm. gather will be around 2016, I would be willing to bring 3.42 pm forward proposals to correct any difficulties that might arise because the ministerial team in Belfast had, by Sitting suspended for a Division in the House. then, changed. The issue that concerns me could arise—we have seen it already with the National Crime Agency, 3.52 pm where it is not yet resolved. Lord Astor of Hever: My Lords, the noble Lord I feel very strongly about this issue. The House asked me what impact the late implementation date accepted, during the passage of the Armed Forces would have on the access to a Christmas bonus of Bill, that regardless of where they come from or live in AFIP recipients in Northern Ireland. Although there the United Kingdom, the services provided to help is no legislative provision to make payment of a Christmas former soldiers and service personnel who have served bonus to those individuals who have elected to receive in the UK Armed Forces should be available as equally AFIP—as the noble Lord said, there are fewer than 20 as possible. Nobody should suffer discrimination because in Northern Ireland—payments have been made by they happen to come from a devolved region. This is the DWP to ensure that eligible seriously injured Parliament’s responsibility, because the Armed Forces service personnel resident in Northern Ireland receive are an excepted matter under devolution. In my opinion, the same support as AFIP claimants in the rest of the it will never be a devolved issue. Therefore, this Parliament UK and recipients of both the enhanced rates of has an overarching responsibility to see that these personal independence payment, which include the services are provided on an equitable basis, irrespective Christmas bonus. of where the recipient comes from. I seek the Minister’s In summary, I restate the point I made when I assurances on all these matters. opened this debate. The changes debated today are closely linked to the Government’s commitment to Lord Rosser (Lab): My Lords, the Minister has uphold the Armed Forces covenant. It is only right reminded us that we debated this matter on 15 October that we provide access to additional benefits, schemes when the order was agreed and we expressed our and services to those most seriously injured, wherever support for it. The Minister has explained why we they are resident in the United Kingdom. I believe that have to approve the order again, and that is certainly these changes will go some way to achieve this. not an issue on which I wish to dwell. Motion agreed. I have just a couple of brief points, since I do not intend to repeat what I said on 15 October. In responding 3.54 pm to points I raised then, however, the Minister said that Sitting suspended. the number of, “seriously injured service or ex-service personnel … covered by Smoking: E-cigarettes this order relating to Northern Ireland … is fewer than 20”.—[Official Report, 15/10/13; col. GC 213.] Question for Short Debate I simply ask, since the order is not coming into effect 4pm on 28 October as was envisaged, whether anyone has lost out as a result, as the order itself indicates that it Asked by Viscount Astor comes into force on the day after that on which it is To ask Her Majesty’s Government what is their made. It would be helpful if the Minister could clarify policy on regulation of the sale, advertising and what date that is likely to be, and whether anyone has promotion of e-cigarettes. GC 259 Smoking: E-cigarettes[17 DECEMBER 2013] Smoking: E-cigarettes GC 260

Viscount Astor (Con): My Lords, electronic cigarettes After all, what comes out of an e-cigarette is just are tubes that simulate the effect of smoking. Some harmless vapour, not smoke. Most e-cigarettes are e-cigarettes contain nicotine, but importantly they do made in China, with the nicotine and other flavours not contain tobacco. Inside an e-cigarette is a small mainly being manufactured there. Is there any form of computer chip, a lithium battery, a heating element inspection regime for the importation of this nicotine and a cartridge filled with water containing dissolved additive? pharmaceutical-grade nicotine. You take a puff and There is evidence from America that e-smoking is the heater fires up the element to around 150 degrees on the increase, but not necessarily that e-cigarettes centigrade, which heats the liquid in the cartridge so are a gateway to smoking, although it is estimated that that it can evaporate. You inhale and that gives a the US has around 2.5 million users. We do know that so-called nicotine hit. You then exhale what looks like nicotine is an addictive drug, and this new invention smoke but is in fact water vapour. E-cigarettes are could set some on the path to nicotine addiction, but regarded by some as a new and dangerous nicotine that is nicotine in very small amounts, which is hardly habit, but by others as a successful way to quit smoking. harmful in comparison with the danger of and damage The truth is perhaps somewhere in the middle, but it is caused by smoking. E-cigarettes could save the lives of clear that e-cigarettes are here to stay. The market is millions of smokers by weaning them off normal expected to grow from £1 billion this year to £10 billion cigarettes. They are a welcome aid to smokers trying over the next five years. It is unregulated at the point to quit; for example, those who have failed with nicotine of sale in this country, as it is in most countries chewing gum or the patches. The value of the health worldwide. gains associated with a single successful quit attempt There has been a recent attempt by the European is very substantial, and the Government’s own Department Commission, which introduced a draft directive, backed of Health estimates it at more than £70,000. by this Government, to regulate electronic cigarettes This is the dilemma facing health experts, policymakers as medicines, but the proposal was thrown out by the and regulators—and, indeed, the Minister. There is European Parliament. A majority in the European very little research on the effects of e-cigarettes. While Parliament supported using a mixture of tobacco they are definitely less harmful than normal cigarettes, regulation, controls on promotion and the reporting they contain carcinogens and toxic chemicals, albeit in of adverse reactions. I understand that negotiations very small quantities. E-cigarettes have been described are continuing right up to today, and I hope that the as, Minister will be able to give us notice of any progress. “the triumph of wishful thinking over data”, and, The Government have encouraged e-cigarette producers voluntarily to seek a licence for their products so that “an opportunity to improve public health”. they can meet standards of safety and quality and be Closer to home, ASH—Action on Smoking and sold on prescription. Can the Minister say how many Health—supports the use of licensed nicotine products of the companies that produce and sell e-cigarettes as an aid to cutting down or quitting smoking, and as have signed up to the voluntary code, and how many a substitute for smoking. They satisfy the desire to are estimated not to have signed up? Perhaps he could smoke, help cut down on cigarettes and, of course, also confirm what the cost of validation might be for eradicate the smell of stale smoke and the effect of producers complying with a medical directive. I understand passive smoking on anybody nearby. Most diseases that it would be more than £250,000. This would put associated with smoking are caused by inhaling smoke, most of the smaller suppliers out of business and which contains thousands of toxic chemicals. As I hand the industry over to the large tobacco companies, have said, by contrast, nicotine is relatively safe. thus perhaps stifling competition. My final question to my noble friend the Minister is: do we have to wait until the European Commission As one drives into London on the M4, one can see and European Parliament finally agree—if they ever three new vast advertising hoardings promoting do—or can the Government introduce sensible regulations e-cigarettes. Do the Government approve of this kind on the advertising, promotion and sale of e-cigarettes? of advertising, which would not be allowed for normal If the Government overregulate the sale of e-cigarettes cigarettes? There is a difficult issue here because most and restrict their use, they will increase the costs to e-cigarettes are made up with 5% nicotine, but some, health in this country and miss an opportunity to cut probably 10% of the market, have no nicotine in them down on smoking. at all. They are, for example, cherry or bubblegum flavoured. Some look like cigarettes and some like pencils, while others look like a pipe end without a 4.06 pm pipe. If they wanted to regulate, how would the Lord Borwick (Con): My Lords, first, I declare an Government regulate an e-cigarette that contains no interest as a trustee of the British Lung Foundation. nicotine? Indeed, is it an e-cigarette, is it a toy or is it Lung disease can affect everyone but it seems to be something else? particularly prevalent in the poorest parts of the country. At the moment, e-cigarettes can be sold to children. Of course, heavy smoking is strongly correlated with Does the Minister believe that there should be an age poverty. limit, or will we see school playgrounds full of puffing Tobacco is by far the largest cause of lung disease, children—or perhaps I should say even more full of and a very large number of people suffer debilitation children puffing? If so, would it be illegal for them to and a painful death because of it. I have many friends puff an e-cigarette that does not contain any nicotine? who have spent their lives trying in vain to help people GC 261 Smoking: E-cigarettes[LORDS] Smoking: E-cigarettes GC 262

[LORD BORWICK] According to research from the Institute of Economic addicted to cigarettes, and it is understandable that Affairs from July 2013: they passionately hate anything to do with smoking, “Far from acting as a gateway to smoking, all the evidence including e-cigarettes. indicates that e-cigarettes are a gateway from smoking”. When I visited the Consumer Electronics Show in Evidence from ASH supports that statement. Indeed, Las Vegas, which I think is the largest trade exhibition the fact that 400,000 people have given up cigarettes is in the world, in January this year, I saw about 200 great news, and if we concentrate on that, we should Chinese manufacturers of e-cigarettes open for business. say that there should be no real restriction on the sale There is a tide of these things coming. They were the or advertising of e-cigarettes. If they are mainly used most common new product at the show after iPhone by existing smokers as a way of quitting, we could cases. One could wish that they would just go away, even do good by giving them away to smokers. but of course they will not. So I congratulate my noble If we are to have any regulation, it should be of the friend Lord Astor on opening this debate. Many people quality of the contents alone: restricting the ingredients have been wishing e-cigarettes away; this is a useful to nicotine; ensuring damaging toxins are kept out of chance to debate them. them; and not allowing flavoured e-cigarettes specifically People are addicted to nicotine but it is the tar that designed to attract children, such as bubblegum e-cigarettes kills them. This seems well established. However, part or such like. of the addiction to cigarettes is not just the chemical In choosing today for this short debate, my noble nicotine but the handling of a cigarette, the sociability friend Lord Astor has shown a downright astonishing and the feel of it. Certainly, e-cigarettes provide a ability to predict the future, because a provisional deal substitute for some of these sensations. They seem a was reached last night in Brussels between MEPs and reasonable and less dangerous product than conventional national Governments on a new tobacco products cigarettes. directive. Martin Callanan MEP has said that this The trouble is that we are fighting the battle against directive will take the majority of e-cigarettes off the the killer tobacco on three fronts: on cost, by increasing market. It would restrict all but the weaker e-cigarettes, consumption taxes; with education at earlier stages to even though smokers who are considering using ensure those likely to start smoking, namely teenagers, e-cigarettes to break their addiction tend to begin on are aware of the risks involved; and by making cigarettes stronger e-cigarettes and gradually reduce their usage. abnormal, by keeping them locked behind shutters Making stronger e-cigarettes harder to come by will at the supermarket and with other proposals such encourage smokers to stay on tobacco. Among the as plain packaging. It seems that the third front, points made in the draft directive, paragraph 3.7 states denormalisation, is at least as powerful as the other that its purpose is to stop the situation whereby, two. The concern is that e-cigarettes can undo a lot of “more people—unaware of the content and effects of these the good work that has been done to make smoking an products—inadvertently develop a nicotine addiction”. unusual habit and smokers akin to pariahs. If it is The idea that somebody will inadvertently become okay to smoke e-cigarettes, will it become okay to addicted without the help of the EU seems rather smoke normal ones again? Will users ever kick the unlikely. habit of enjoying nicotine and holding a cigarette? Finally, I pose a conundrum for the Minister. If we Another important question must be addressed: go ahead with plain packaging for cigarettes—which what are e-cigarettes? Do they contain just nicotine are actually illustrated with lurid photographs of health and vapour, or anything else at all? This seems to call problems—do we allow e-cigarettes to be sold in similar for regulation as a simple product, to ensure quality. packages if the manufacturer wants to? That is something Will my noble friend the Minister encourage his that the great Sherlock Holmes might perhaps describe department to sponsor some research into the effects as a “three pipe problem”. of nicotine alone? It is said to be dangerous to those with a heart problem or to pregnant women, but the 4.13 pm truth is that there has not been enough research on the Viscount Ridley (Con): My Lords, I congratulate subject to be sure. my noble friend Lord Astor, on securing this debate. It It is important to understand how e-cigarettes is an issue of much greater importance than the sparse are changing the behaviour of smokers of conventional attendance might imply and one that is growing in cigarettes. ASH has reported that as many as importance. I have no interest to declare in electronic 1.3 million people occasionally use e-cigarettes and cigarettes: I dislike smoking and have never done it. I that 400,000 people are using e-cigarettes in total or have only once tried a puff on an e-cigarette, which did partial replacement of normal cigarettes. That is great nothing for me. I am interested in this issue as a news. counterproductive application of the precautionary The danger people spot is that children might become principle. I should say that I am indebted to Ian more likely to take up normal cigarettes after trying Gregory of Centaurus Communications for some of e-cigarettes. We cannot tell if that is so, because there the facts and figures that I will cite shortly. has been not been any research on it, but logic suggests There are, at the moment, about 1 million people in otherwise. Teenagers smoke cigarettes to look cool, this country using electronic cigarettes, and there has and e-cigarettes are not cool—they are about giving been an eightfold increase in the past year in the up an addiction. No teenager wants to look as though number of people using them to try to quit smoking. they are giving up something: they want to look as Already, 15% of ex-smokers have tried them, and they though they have no problems. have overtaken nicotine patches and other approaches GC 263 Smoking: E-cigarettes[17 DECEMBER 2013] Smoking: E-cigarettes GC 264 to become the top method of quitting in a very short says that the decision on whether to regulate e-cigarettes time. The majority of those who use electronic cigarettes should be based on the harm that they do. Yet that to try to quit smoking say that they are successful. very impact statement says that, Here we have a technology that is clearly saving “any risk is likely to be very small”, lives on a huge scale. If only 10% of the 1 million users that there is, in the country are successful in quitting, that would save £7 billion, according to the Department of Health “an absence of empirical evidence” figures given in answer to my Written Question last and “no direct clinical evidence”, that “the picture is month, which suggest that the health benefits of each unclear”, and—my favourite quote—states: attempt to quit are £74,000. In that Answer, Minister “Unfortunately, we have no evidence”, said that, of harm. “a policy of licensing e-cigarettes would have to create very few additional successful quit attempts for the benefits to justify its There is said to be a risk of children taking up costs”.—[Official Report, 18/11/13; col. WA172.] e-cigarettes and then turning to real cigarettes. Just think about that for a second. For every child who But who thinks that licensing will create extra quit goes from cigarettes to electronic cigarettes, there would attempts? By adding to the cost of e-cigarettes, by there have to be 1,000 going the other way, from reducing advertising and by unglamorising them, it is e-cigarettes to cigarettes, for this to do any net harm. far more likely that licensing will create fewer quit The evidence suggests, as my noble friend Lord Borwick attempts. Will the Minister therefore confirm that, by has said, that the gateway is the other way. Some 20% the same token, a policy of licensing e-cigarettes would of 15 year-olds smoke, and evidence from ASH and a have to reduce quit attempts by a very small number study in Oklahoma suggests strongly that when young for that policy to be a mistake? people use electronic cigarettes they do so to quit, just Nicotine patches are also used to reduce smoking like adults do. and they have been medicinally regulated, but there If we are to take a precautionary approach to the has been extraordinarily little innovation in them and risks of nicotine, will the Minister consider regulating low take-up over the years. Does the Minister agree aubergines as medicines? They also contain nicotine. with the report by Professor Peter Hajek in the Lancet If you eat 10 grams of aubergine, which you easily earlier this year, which said that the 30-year failure of could with a plateful of moussaka, you will absorb the nicotine patches demonstrated how the expense and same amount of nicotine as if you shared a room with delays caused by medicinal regulation can stifle innovation? a cigarette smoker for three hours. It is not an insignificant Does my noble friend also agree with analysts from quantity. That is data from the New England Journal of Wells Fargo who this month said that if e-cigarette Medicine in 1993. If we are worried about unknown innovation is stifled, and small risks, can the Minister explain to me why, as “this could dramatically slow down conversion from combustible Professor Hajek, put it, more dangerous chemicals, cigarettes”? such as bleach, rely on packaging and common sense We should try a thought experiment. Let us divide rather than on medicinal licensing? the country in two. In one half—let us call it east There has been approximately an 8% reduction in Germany for the sake of argument—we regulate the use of tobacco in Europe in the past year. The e-cigarettes as medicines, ban their use in public places, tobacco companies are worried. A big part of that restrict advertising, ban the sale of refillable versions, reduction seems to be because of the rapid take-up of and ban the sale of e-cigarettes stronger than 20 milligrams electronic cigarettes. They are facing their Kodak per millilitre. In the other half, which we will call west moment—the moment when their whole technology is Germany, we leave them as consumer products, properly replaced by a rival technology that, in this case, is regulated as such, allow them to be advertised as 1,000 times safer. Does my noble friend think that glamorous, allow them on trains and in pubs, allow there may be a connection between the rise of electronic the sale of refills, allow the sale of flavoured ones, and cigarettes, the rapid decline in tobacco sales and the allow stronger products. In which of these two parts of enthusiasm of tobacco companies for the medicinal the country would smoking fall fastest? It is blindingly regulation of electronic cigarettes? obvious that the east would see higher prices—and It is not just big tobacco; big pharma has shown prices are a serious deterrent to attempts to quit significant interest in the regulation of electronic cigarettes. smoking because many of the people who smoke are That is not surprising because they are, again, a rival poorer than the average. We would see less product to patch products and other nicotine replacement innovation, slower growth of e-cigarette use and more therapies. Perhaps more surprising is that much of the people going back to real cigarettes because of their medical establishment is in favour of medicinal regulation. inability to get hold of the type, flavour and strength I never thought I would live to see the BMA and the that they wanted. Therefore, more people would quit tobacco industry on the same side of an argument. smoking in the western half of the country. The BMA says that electronic cigarettes cannot be What are the drawbacks of such a policy? There is a considered a lower-risk option, but this completely risk of harm from electronic cigarettes, as we have flies in the face of the evidence. As we have heard heard. How big is that risk? The Minister confirmed already, electronic cigarettes are 1,000 times safer. The to me in a Written Answer earlier this year that the BMA says that it is worried about passive vaping, the best evidence suggests that they are 1,000 times less renormalising of smoking and the use of electronic dangerous than cigarettes. The MHRA impact assessment cigarettes as a gateway to smoking. The excellent GC 265 Smoking: E-cigarettes[LORDS] Smoking: E-cigarettes GC 266

[VISCOUNT RIDLEY] For instance, I imagine that a dossier has to be charity Sense About Science, to which I am proud to produced with scientific evidence to show the efficacy be an adviser, has asked the BMA for evidence to and safety of these products. I wonder whether the support those assertions. I must say that there is a noble Lord has an estimate of the cost of this, and strong suspicion that the only reason the medical whether that would inhibit many of the small companies establishment wants to see these things regulated as in this market from being able to carry on in business medicines is because it cannot bear to see the commercial when this is introduced. I support regulation that is sector achieving more in a year in terms of getting light-touch and permissive rather than restrictive. people off cigarettes than the public sector has achieved As the noble Viscount has said, the regulation of in 10. Instead of talking about regulating this product, e-cigarettes has been debated as part of the EU trilogue should we not be talking about encouraging it, promoting negotiations on the tobacco products directive. Can it and letting people vape indoors if they want to—in the noble Earl inform the Committee of the progress pubs, on trains and in football grounds—specifically of those negotiations? I understand that they are so that they are tempted to vape instead of smoke? scheduled to end in the coming weeks, and an update That would be of enormous benefit to them and to the would be appreciated, as would some sense of the country as a whole. timeline between agreement within Europe and the I end by asking specifically in relation to the agreement implementation of this proposed directive. that, as we heard from my noble friend Lord Borwick, As the noble Lord, Lord Borwick, has commented, was agreed last night, what its impact will be on what e-cigarettes have clearly been very successful in encouraging is happening, and in particular on advertising. As I smokers to quit and to use e-cigarettes instead. He understand it, under the agreement reached yesterday, posed the question of whether there are circumstances it will be possible for the advertising of these things to in which e-cigarettes could be a passport to tobacco be banned as if they were cigarettes. What is the smoking. I think he talked about teenagers in particular, justification for that, given the proportionality and the implying that some of the marketing approaches of evidence that they will actually save lives rather than the e-cigarette manufacturers might provide a cool harm them? image to young people, who would take up e-cigarettes and then be tempted to go on to tobacco products. I do not know whether the noble Lord, Lord Borwick, 4.22 pm saw the complaints made about an advert for e-cigarettes Lord Hunt of Kings Heath (Lab): My Lords, first, I screened by ITV on 3 December during “I’m a Celebrity”, apologise to the Committee for being a little late for which appeared to show a woman talking about oral the start of the debate. I welcome this debate and I sex, while at the end of the advert it was revealed to be congratulate the noble Viscount, Lord Astor, on allowing a reference to e-cigarettes. The question I put to the us to discuss a very interesting subject. I am sure that noble Earl is: how do we ensure that e-cigarette we are all looking forward to the noble Earl’s response manufacturers are not able to advertise in such a way to the many questions that have been put to him. as to make e-cigarettes attractive to young people who would not ordinarily have come to smoking, so that With more than 100,000 people dying from smoking- they act as a passport to tobacco smoking? related diseases across Britain every year, it is clear If the noble Earl can reassure us that regulation can that we need to do all we can to support people to give be light-touch, that the process of being regulated as a up smoking and discourage young people from taking medicinal product will not be overbearing, and that it up in the first place. One thing I am convinced about there can be appropriate controls on advertising, then is that e-cigarettes have the potential to provide a we should welcome the impact of e-cigarettes, because significant boost to public health. I understand that the evidence is clear that they have helped a lot of the National Institute for Health and Care Excellence people come off tobacco smoking. Surely, in the end, supports the use of nicotine-containing products such that is to be welcomed? as e-cigarettes to aid smokers in cutting down on tobacco. As we have heard, an estimated 400,000 people across the UK have already switched from smoking to 4.28 pm e-cigarettes. The Parliamentary Under-Secretary of State, Department I noted the comments of the noble Viscount, Lord of Health (Earl Howe) (Con): My Lords, I thank my Ridley, on the risks of regulation, and I agree with him noble friend Lord Astor for securing this important that it is important that regulation does not stifle and highly topical debate. innovation. On the other hand, as with any new and As we have heard, e-cigarettes are nicotine-containing fast-emerging product, some additional safeguards may devices that work by atomising a nicotine solution be needed to cover any gaps in our existing consumer which is then breathed in as a vapour by the user. regulations. I want to ask the noble Earl, Lord Howe, E-cigarettes claim to deliver nicotine to the user without about this. Does he consider that the medicinal regulation the toxins and carcinogens found in tobacco smoke. of e-cigarettes would put a lot of the current e-cigarette They do not involve any combustion and do not companies out of business? The noble Earl is of course produce smoke. E-cigarettes are a very recent innovation. very well acquainted with the work of the MHRA, They are available in various shapes and sizes, as we issues to do with the regulation of medicines and, have heard, and many are designed to both look and indeed, herbal medicines, which may be relevant in feel like conventional cigarettes. Some even incorporate this context. I wonder if any work has been done to a light at the end of the device that glows when the estimate the cost of regulation for these products. product is being used, to replicate a cigarette. Today, GC 267 Smoking: E-cigarettes[17 DECEMBER 2013] Smoking: E-cigarettes GC 268 they are marketed as a cheaper and healthier alternative smokers who have used electronic cigarettes. There is to smoking tobacco. However, e-cigarette manufacturers little evidence to suggest that non-smokers are becoming have avoided directly suggesting that their products attracted to using e-cigarettes. are smoking cessation aids, as making such claims My noble friend Lord Borwick asked about the would subject their products to regulation as medicines. behaviour of children and young people. ASH I turn to whether e-cigarettes are safe to use. When commissioned research into the use of e-cigarettes by we compare the use of e-cigarettes to smoking of young people and found that, in Great Britain in 2013, tobacco, the Department of Health is confidently able 95% of 11 to 14 year-olds and 90% of 16 to 18 year-olds to say that e-cigarettes are likely to be much safer to have never used e-cigarettes. Among young people, use. That does not mean that e-cigarettes are safe to e-cigarette use appears to be confined to those who use; it probably says more about how enormously have already tried smoking. Nevertheless, we remain unsafe it is to smoke tobacco. Nevertheless, the safety concerned that e-cigarettes could quickly become popular of e-cigarettes is yet to be fully established. Given how with young people, particularly if they continue to be novel these products are, we need to see much more vigorously advertised and promoted. We are also very evidence about their safety, especially regarding the aware of concerns expressed that e-cigarettes could use of e-cigarettes over a long period. act as gateway products for young people into smoking, and will continue to watch the evidence closely. At present, e-cigarettes are sold without any product- The Government recognised in the tobacco control specific controls relating to quality and safety in use, plan for England that smokers are harmed by the tar or specific provisions on advertising and promotion. and toxins in tobacco smoke, not necessarily by the There are general product safety provisions that apply nicotine to which they are addicted. There is no way of to these products, but they are not designed for these avoiding these deadly toxins if you inhale smoke from sorts of product and are not fit for this purpose. We burning tobacco. also must keep in mind that nicotine itself is not only highly addictive but can be highly toxic. Electronic Earlier this year, the National Institute for Health cigarettes are not risk-free. Known and reported health and Care Excellence published public health guidance risks include acute effects on lung function, possible on harm-reduction approaches to smoking. The noble pneumonia and other risks related to poor product Lord, Lord Hunt, asked about this. NICE recommends quality. the use of licensed medicines only. The guidance suggests that while the best way to reduce smoking illness and My noble friend Lord Astor made reference to death is to encourage smokers to quit completely, Action on Smoking and Health. ASH says that there there are other ways of reducing the harm from smoking, is significant variation in device effectiveness, nicotine even though this may involve the continued use of delivery and cartridge nicotine content, both between nicotine. If someone does not want to, is not ready to and sometimes within product brands. ASH cites research or is unable to stop smoking in one step, the guidance that suggests the presence of toxins, released in low suggests that licensed nicotine replacement therapies concentrations, from the vaporisation process involving could be of use. certain e-cigarette cartridges. It cites other research My noble friend Lord Borwick asked about the that concluded that e-cigarettes have a low toxicity possibility of sponsoring research in this area. We profile, are well tolerated and are associated only with already know quite a lot about the safety profile of mild adverse effects. nicotine and its use in cutting down and quitting. The As we have heard during this debate, the e-cigarette evidence we have is that these products are used mainly market is growing rapidly. More than 300 companies to cut down and quit. are estimated to be importing or supplying e-cigarettes My noble friend Lord Ridley called for clearer in the United Kingdom. The e-cigarette market in the evidence of effectiveness. The problem is that there is UK is estimated to be worth in excess of £100 million, not good evidence of effectiveness. These products are and we know that across the world the tobacco industry not magic bullets, in other words, but even at this stage is becoming increasingly involved. There is little doubt we feel that we want to exploit the potential that we that awareness of e-cigarettes has increased quickly see in them. He referred to aubergines as potential through advertising and promotion of these products. medicines. I think he would agree with me that people It has been said that e-cigarettes are being promoted do not eat aubergines in the expectation that that will in similar ways to how cigarettes were promoted before help them to quit smoking. Clearly, whatever remedy we introduced a comprehensive ban on tobacco advertising we encourage has to be effective in its ability to cut in this country. I am sure that I am not alone in down and quit the habit of smoking. noticing the vast amount of promotion for e-cigarettes in my local convenience store, or the representatives of There is potentially a place for e-cigarettes within a e-cigarette companies in shopping malls or outside harm-reduction approach to public health, but only if train stations promoting their products. they meet the requirements set out in the public health guidance; that is, if they are licensed medicines. I The University College London smoking toolkit would expect that the NHS and health professionals study is a national study of smoking and smoking would also only recommend the use of e-cigarettes cessation in England. The most recent data from the that are licensed as medicines. My noble friend Lord survey suggest that electronic cigarette use by tobacco Astor asked whether we envisaged e-cigarettes being smokers has increased from around 2% in 2011 to sold on prescription. We want effective products to be around 14% in August 2013. If this trend were reflected widely available, not just on prescription but in general across the UK, it would translate to around 1.4 million sale outlets such as supermarkets and corner shops. GC 269 Smoking: E-cigarettes[LORDS] EU: Financial Transaction Tax GC 270

[EARL HOWE] There is also emerging consensus that the advertising The noble Lord, Lord Hunt, asked how much it of e-cigarettes needs to be controlled. Options for would cost an e-cigarette manufacturer to get a medicines doing so as part of the proposed European directive licence. The impact assessment that we published estimated are under negotiation. In addition, the Committee of that the annualised cost to a single UK e-cigarette Advertising Practice, which writes and maintains the importer for complying with medicines regulation ranged UK advertising codes that are then administered by from £87,000 to £266,000. the Advertising Standards Authority, announced in I am particularly grateful to my noble friend Lord October that it intends to develop new rules to give Astor for securing this debate because it provides me clarity to advertisers and to ensure that e-cigarettes with the opportunity to explain to your Lordships the are promoted responsibly. It is considering running a action that is under way to regulate e-cigarettes. As the public consultation on this issue early in the new year. Chief Medical Officer for England has said, since The Government’s priority during negotiations is more and more people are using e-cigarettes, it is only to secure a directive that will reduce as far as possible right that these products are properly regulated to be how attractive e-cigarettes are to young people and safe and work effectively. closely to monitor the development of this market. A European tobacco products directive was proposed When the directive has been settled, we will undertake late last year and is now in its final stages of negotiation an analysis to consider whether further action could in Brussels. I can tell noble Lords that no deal has yet be taken on a domestic basis, in particular to protect been reached in the discussions but the Government young people from e-cigarettes that contain nicotine. hope that agreement might be reached shortly. I reassure We also need to give further consideration to my noble your Lordships that the United Kingdom has been friend’s question about non-nicotine-containing products, active during these negotiations, as we believe that the as I mentioned. proposed tobacco products directive will benefit public Regardless of how e-cigarettes are regulated within health and help to reduce the number of young people the proposed directive, we will still encourage the who take up smoking in the UK. manufacturers of these products voluntarily to seek From the outset, it was envisaged that e-cigarettes medicines licences for their e-cigarettes, so that they would be regulated within the proposed directive. can be made available to support smokers to quit in Protecting and promoting public health has always the same way as other forms of nicotine replacement been our starting point, and we want safe and effective therapy, such as gum and patches. These e-cigarettes nicotine-containing products that can help smokers could be recommended for use in reducing harm, in cut down and quit. The Government took the view accordance with the recently published public health that proportionate medicines regulation was the best guidelines. way to deliver that objective. Viscount Ridley: Has my noble friend taken on board the point that both I and the noble Lord, Lord Viscount Astor: Does my noble friend consider that Hunt, raised about the risk of regulation stifling e-cigarettes that contain no nicotine at all but contain innovation? By stifling innovation and slowing down other flavours will or should come under the tobacco the rate of take-up of these things, regulation could directive? kill more people by preventing their coming off tobacco cigarettes. Earl Howe: My Lords, that is probably the hardest Earl Howe: I most certainly have taken that point question that my noble friend has asked me during on board. I am grateful to my noble friend, who I hope this debate. My answer is that we certainly need to give will take some encouragement from what I said about careful consideration to that issue, which is about our wish to see take-up of effective products. However, products that have the appearance of e-cigarettes but we need to be cautious about allowing products to contain no nicotine. We would need to look at how flood the market that purport to contain certain quantities common those products are or are becoming. Frankly, of nicotine and to deliver them safely but in fact do that work has yet to be done, but I am grateful to him not. The safety and efficacy of these products are for raising the issue. particularly important and we need to look at that. I was speaking about our approach to the regulation of e-cigarettes, saying that we felt that proportionate EU: Financial Transaction Tax medicines regulation was the best way forward. (EUC Report) Nevertheless, we must consider carefully the views that have been forthcoming, including from the European Question for Short Debate Parliament, that there are alternative approaches to 4.45 pm the regulation of e-cigarettes. Moving forward, the Government will want to be satisfied that the directive Asked by Lord Harrison can deliver the right checks and balances on e-cigarettes. To ask Her Majesty’s Government what assessment It is important to underscore the fact that there is a they have made of the Report of the European wide consensus across the European Commission, the Union Committee Financial Transaction Tax: Alive European Parliament and European member states and Deadly (7th Report, HL Paper 86). that additional regulatory safeguards are needed for this relatively new category of product. We are listening Lord Harrison (Lab): My Lords, I am delighted to carefully to the genuine debate about how best to take introduce the new EU Committee report, Financial this forward in the directive. Transaction Tax: Alive and Deadly. I thank fellow GC 271 EU: Financial Transaction Tax[17 DECEMBER 2013] EU: Financial Transaction Tax GC 272 members of the Sub-Committee on Economic and of non-participating member states; it would distort Financial Affairs, which undertook this inquiry, for competition; and, finally, it would inhibit the free the contributions they will make today, and other movement of capital. distinguished Members of the House. In light of these significant developments, we undertook This is an update report on the Commission’s this short update inquiry, taking evidence from Heinz contentious proposals for a financial transaction tax, Zourek, Director-General, Taxation and Customs Union, following on from our March 2012 report, Towards a European Commission. Our findings are clear: in our Financial Transaction Tax?. That report found the view, the Commission has failed to demonstrate that it Commission’s proposals seriously wanting, and likely has taken full account of the interests of non-participating to fail the five objectives that the Commission had set member states. The Commission confessed that it had itself. We contended then that there was a significant brought forward a deliberately contentious proposal threat of relocation of financial activity outside the with the studied intention of challenging participating EU as well as the City of London, were the FTT to go member states to excise those elements they found live. You would have imagined that we would have inimical—an unworthy and divisive tactic. Moreover, rejoiced when the proposals for such an EU-wide FTT it undermines the Commission’s obligations to defend later ran into the sand—far from it. Let me explain. the interests of all member states and throws into doubt use of the enhanced co-operation tool in the In June 2012, a breakaway group of 11 member future—a significant by-product of this study.In contrast, states, led by France and Germany, announced their we found the Council Legal Service opinion highly intention to proceed with an FTT under the enhanced persuasive. It demonstrates in concrete terms how the co-operation procedure, whereby nine or more member proposal would breach European Union law in respect states can take a proposal forward without binding of the integrity of the single market. Moreover, we jib those who do not wish to participate. The UK at the Commission’s artificial distinction between imposing Government made clear, with my committee’s support, the financial transaction tax and the collection of the that they would not participate. However, we were tax from member states. deeply alarmed that the proposal could nevertheless have a serious detrimental impact on the UK. We grew We published our report last week but already even more agitated when the Council vote approving events have moved on. Media reports emerged that the use of the enhanced co-operation procedure went Commission had finally produced a legal reply to the ahead without a text having been published—a veritable Council Legal Service. In addition, the Financial Times case of buying a pig in a poke. last week reported a compromise proposal emerging from the Lithuanian presidency, seeking to limit the Three weeks later, on 14 February 2013, the tax’s broad scope while still retaining the element of Commission did indeed publish its detailed proposal, restraining the impact on high-frequency trading. but the revised version included new and disturbing However, we understand that the compromise did not anti-avoidance provisions, including the significant address key issues of extraterritoriality or the dubious issuance principle. When we took evidence from legality of the tax. What update can the Minister give Commission official Manfred Bergmann in March us on these negotiations? Does he predict, as we do, 2013, he told us, to our open-mouthed astonishment, that the political weight behind the FTT—often that there would be no legal obligation on UK authorities misunderstood in this country—means that a proposal to collect the new tax. This contradicted our view that will nevertheless emerge in some shape or form? What the United Kingdom could indeed be obliged to collect efforts is he making to ensure that the potential damaging the tax on behalf of participating member states under effect of such a tax is limited not only for the United the EU regime, which requires all member states to Kingdom and other non-participants but, indeed, for assist each other in the recovery of tax. In our view, all European Union member states? the proposal failed to meet the key criterion for enhanced co-operation, which requires that any proposal must I should warn the Minister that we do not let the respect the competences, rights and obligations of all Government off scot-free either. While we welcomed non-participating member states. their legal challenge, we are frustrated that it took so long for them to sit up and take notice of the repeated, We urged the Government to launch a legal challenge and increasingly admonitory, warnings that we have against the proposal. The Government belatedly took spelt out in no fewer than 12 letters to his ministerial our advice, and in April this year challenged the use of colleagues over the past 18 months. What update can enhanced co-operation. In the mean time, we asked he give us on the progress of the Government’s legal the Commission to provide urgent clarification of the challenge? When does he expect the Court of Justice feared legal obligation that the United Kingdom to reach a decision? What assurances can he give us authorities would have to collect the tax. This, the that the Government are taking the proposal, and its Commission signally failed to do for a full six months. potential implications for the City of London, the United Kingdom and, indeed, the entire European Later, a leaked Council Legal Service opinion Union, seriously? Are the Government engaging positively concluded that the deemed establishment principle, in negotiations in Brussels as they unfold, especially on which the proposal was based, did not comply with with other non-participating member states? the treaty requirements for enhanced co-operation on several grounds: notably, that it would represent The financial transaction tax is a real and present extraterritorial taxation; it could discriminate to the danger to the City of London, Europe’s premier global detriment of other parties caught by the deemed financial centre, and to all of us who derive pensions establishment principle; it failed to respect the competence and savings from its teeming financial activities. GC 273 EU: Financial Transaction Tax[LORDS] EU: Financial Transaction Tax GC 274

4.55 pm when I say that we considered the financial transaction tax looking for a kernel of benefit to this country, and Lord Vallance of Tummel (LD): My Lords, I simply we looked for a scintilla of logic behind the imposition want to reinforce one specific point that has just been of the tax. What we found, it is fair to say, was instead made by the noble Lord, Lord Harrison. Our report a desire to generate revenue quickly and to punish the raises an important issue concerning the deployment financial institutions that it was thought had landed of the enhanced co-operation procedure itself. The the whole of Europe—indeed, perhaps the whole world FTT case is only the third time the procedure has been —into the sort of financial difficulties that we now used since it came into being in 1999, but it could well experience. become more commonplace in a future where different groups of EU nations wish to take different courses, That certainly ignored the issue of extraterritoriality. or proceed more quickly than others. It also seemed to ignore the legitimacy of the tax itself In the FTT case, the use of the procedure has left a and the tax’s impact on the financial markets, particularly, bad taste in the mouth. When it was put to the vote for example, on high-frequency trading. The consequences, last January, I imagine that, in abstaining, our Government as the noble Lord, Lord Harrison, has said, would naively assumed that the terms of the tax to be adopted include damage to the City: if the tax comes into would mirror those the Commission had already put being, it will almost certainly drive business away to forward and which had failed to find favour with places such as New York, Hong Kong and Singapore. many states, including the UK. But as the noble Then there is the impact, as has already been said, on Lord, Lord Harrison, has said, the proposal the the 17 non-participating states and perhaps even on Commission advanced only three weeks later was the whole of the EU. To put it another way, enhanced significantly different, not least in its assertion of the co-operation, on this occasion at least, seems to be the twin principles of “deemed establishment”and “issuance”. minority dictating to the majority, to the detriment That combination of principles could clearly have a of all. major impact on financial institutions in non-participating We were disappointed by the slow take-up by Her and third-party countries which could not have been Majesty’s Government, as has already been said, and foreseen at the time of the vote. by the sanguine approach adopted by the EU, which It seems unlikely that the Commission was entirely was typified in the evidence that was given to us on unaware of the principles and their potential impact 19 March by Manfred Bergmann, the director of when the vote took place. Was this a matter of oversight indirect taxation and tax administration at the EU— or deviousness on the part of the Commission and DG TAXUD is the acronym. Mr Bergmann seemed to sponsoring countries? Who knows? However, one can take a particularly benign view of what would happen, imagine that had the boot been on the other foot and a and his evidence on the impact of the issuance principle, principal sponsor had been the UK, tales of Albion’s so far as it applied to non-participating states, was traditional perfidy would have been doing the rounds surprising. We welcomed the fact that the Council’s in the corridors of Brussels. This has not been one of own legal service gave an opinion which, according to the European Union’s finest hours and I say so sadly, our report, said that, as a strong supporter. “the deemed establishment principle does not comply with the As to the lessons for the future, whatever the outcome Treaty requirements for enhanced cooperation”. of the FTT proposal, the enhanced co-operation It listed a number of grounds, but perhaps the most procedure needs to be tidied up, made more robust important was the fact that the tax, if it comes into and be seen to be fair. Put simply, all significant cards being, need to be face-up on the table when a vote is taken to “would exceed the norms of customary international law in adopt it. Ideally, a fully fledged scheme should be respect of extraterritorial taxation”. worked up and open to scrutiny before a vote is taken, accompanied by a thorough impact assessment that Her Majesty’s Government, as we have already been distinguishes between participating and non-participating told, are now making a legal challenge—seeking an countries, and with an analysis of any extra-territorial opinion of their own, if you like. I suppose one could consequences. Without a reformed approach along say that is better late than never. Indeed, the timetable these lines, what could be a useful and effective procedure for that is already a matter of record in your Lordships’ will simply fall into disrepute. That is not in the Chamber. interests of the European Union or its member states In conclusion, I simply ask the Minister whether and I hope that, when the dust has settled on the there is any chance at all that, if the result of the specific FTT issue, the Government will take the initiative Government’s legal challenge reflects the advice of the in calling for reform of the enhanced co-operation Council Legal Service, the Government will adopt a procedure itself. more robust stance so far as the FTT is concerned, to the benefit of the whole country and, indeed, the 4.58 pm whole of Europe. Lord Dear (CB): My Lords, I congratulate the 5.02 pm noble Lord, Lord Harrison, on securing this debate. My contribution, like that of others, will necessarily Lord Hamilton of Epsom (Con): My Lords, one of be short and I will take a broad brush to this issue. I the reasons given for the introduction of the financial am a member of the EU Select Committee and of the transaction tax is to punish the banks. This is a Economic and Financial Affairs Sub-Committee, which populist idea into which, I am afraid, our Government conducted this inquiry. I think I speak for all of us have also fallen. We do not want to punish the banks, GC 275 EU: Financial Transaction Tax[17 DECEMBER 2013] EU: Financial Transaction Tax GC 276 we want to punish the bankers. The problem is that the 5.06 pm bankers have all now gone, taking with them their Lord Carter of Coles (Lab): My Lords, I congratulate bonuses and severance pay, and we are left with the my noble friend Lord Harrison on securing this debate. banks, which we want to rebuild and whose balance Like the noble Lord, Lord Dear, I take a wide view of sheets we want to get stronger. Instead, we impose this but want to focus on a couple of issues around the levies on them and ask them for better borrowing Treasury’s response, globalisation and the unreality of ratios and to build up their reserves. When they are the course being proposed. We would all like to see a trying to do this, as well as dealing with a loan book financial transaction tax that spans the globe, but it is that is looking a bit dodgy, we then complain bitterly totally impractical, as is such a tax that is driven by that they are not lending to small and medium-sized 11 members of the EU. The tax is too small and enterprises. I am afraid that you cannot have it all incomprehensible in how it will run. ways round and we have to do something to encourage our banks to strengthen their balance sheets rather We have heard the various arguments around specific than tax them, which is of course what we would be concerns but we need to look at the unintended doing with the financial transaction tax. consequences of domestic legislation in a global financial world in which we have often seen ingenuity outrunning This morning we were debating in our committee regulation. It is the lot of this market that it is ingenious what the priorities were for the EU. One of the areas and finds ways around things. As a precedent, we need identified was tackling the serious problem of only look at what happened in Europe in the 1960s, unemployment, which looks to be structural in the EU when the famous Regulation Q from the United States today, and in particular the very high levels of youth drove business offshore; it just shifted and created the unemployment. So what do we do? We introduce the Eurodollar market in the UK. It was a great achievement, financial transaction tax, which seems to be coming and it is on that that London’s success is based. It is down the road and, according to an impact assessment therefore rather strange that we are looking and not conducted by the Commission, will cost 1.76% of learning from those sorts of lessons. Inevitably, this gross domestic product in the EU and 500,000 jobs. activity will be driven offshore, and it will take with it Since then, the Commission has said, “No, that is jobs, data centres and all those things because these not accurate”. Okay, I will take half of that: perhaps people need to be near the source of the power that we will see GDP depressed by 0.85% and it will cost drives it. The market will go to Hong Kong, Singapore only 250,000 jobs. That is all right then, isn’t it? It and New York. will cost a fortune and do everything to counter the While other noble Lords have dealt with issues of objectives of the EU such as bringing down enhanced co-operation and so on, I should like to unemployment—it will actually increase unemployment. focus on the issue before the Treasury. As our report This is the extraordinary way that this Commission shows, despite repeatedly calling the attention of the operates. Treasury to the threats posed by the FTT, it was only Many of your Lordships have been to Brussels. Do in May that we had recognition of the issue and the we ever hear the people in the Commission talking concession that significant economic impact would about how they will make the EU more competitive result. I normally have a high opinion of Her Majesty’s and how they will deal with the challenges from the Treasury but I have to say that on this occasion it was global marketplace? No, they are always talking about rather like the proverbial dog watching television: it themselves and as if the EU was the centre of the could see it but did not get it. I hope now that the universe, which to an increasing extent it is not. The Treasury has got it because, unless there is an EU is facing up to a diminishing share of world trade understanding of the consequences of the FTT, we as time progresses, and it is time that it started to look will be in a serious place. outwards rather than inwards, and work out how it We should now look forward. One of the great will face these challenges. The impact assessment successes of Britain in the post-war era was its thoroughly analysed that a lot of this business will be re-emergence as the great centre of finance. That was pushed abroad, and that is why it will cost so many driven by the Eurodollar. It is rather ironic that the jobs. people who drove it forward were, in fact, Harold Wilson and Lord Cromer. They understood the prize We then questioned the gentleman from the Directorate to be won, grasped it and created what now is a major General of Taxation and Customs Union, did we not? source of national wealth. It would be slightly ironic if We asked him, “What are you going to do about this market-friendly Government were unable to moderate getting these other stock exchanges and so on to or prevent the FTT. It would be interesting to hear collect this tax?”. “Oh”, he said, “We are going to from the Minister how we are going to preserve our incentivise them to collect this money”. We said, “Really? place as the leading financial centre of the world. How are we going to do that?”. He said, “We will allow them to keep the interest on the tax that they have collected for six months”. What world is this 5.09 pm so-called intelligent man living in? Does he really think that the United States will collect taxes for The Earl of Caithness (Con): My Lords, a policy foreign countries? It is quite unbelievable, and this is conceived in revenge, born under the enhanced the real problem behind all this. I cannot imagine why co-operation procedure and nurtured on envy, is a sad anyone would want to stay in the EU, and I am glad and frightening prospect. The FTT is such a policy, that we will have an opportunity to get out of it and unfortunately it is alive and deadly, as our report in 2017. states. GC 277 EU: Financial Transaction Tax[LORDS] EU: Financial Transaction Tax GC 278

[THE EARL OF CAITHNESS] we are far too negative about most other things when Our report savages the proposal for the FTT. We we should not be. For example, regardless of whether are by no means alone: a recent report by Oxera for we stay in the EU, amend the treaties, or get out, the Marex Spectron reckoned that the FTT would destroy success of the eurozone is important, not only to us more sources of revenue than it would create public but to the rest of the world. Suffice to say, a little more funding: it will cost more than it receives. Deutsches diplomacy, and less barracking from the sidelines, Aktieninstitut is also heavily critical of the FTT. It would not go amiss. Government ambitions for their says that, future in the EU may be difficult, or even impossible, “the burden of the FTT as proposed by the European Commission to achieve currently. However, that makes its lack of amounts to between 5.0 and 7.3 billion euros annually for private engagement in such issues as the FTT even more households and non-financial companies in Germany”. inappropriate. The adoption or otherwise of this tax The Corporation of London has also been very will not sink the EU, but we could have had much critical and reckoned that the impact of the FTT more influence on what is now happening. would be higher for non-participating member states I wish to comment on this tax from the perspective than for participating ones. We have to remember that of the majority of our citizens, who, like me, are lay the non-participating ones are in the majority. There people as far as finance is concerned. This is a direct will be further reports in the new year, and I have no tax and a bad precedent, not only on businesses but on doubt every one will be critical. individuals, which will affect most financial transactions, The attitude and behaviour of the Government has not only for the millions who own or trade shares but been commented on. It saddens me that my former for those who have pensions. Almost everyone will be department, the Treasury, has not improved its procedures. affected directly or indirectly. This is the thin end of It was very slow to react in the first place. With the wedge, the slippery slope: a direct tax on individuals. hindsight, I remember we were not very quick in Even worse, it is 11 countries attempting to tax responding to ERM as we should have done. I thought individuals—nationals of countries outside their group lessons had been learnt. I have been on the committee and their own jurisdiction—entirely against their will since the first report was published, and I have noticed and with no democratic mandate. how almost offhand the correspondence has been. When a nation taxes its population, the Government Since the change of Minister that has improved, and I must have a mandate and justify the purpose of doing ask my noble friend to make sure that that improvement so in a budget. There is no mandate or legal basis for continues, because it is vital that the Government this daylight robbery. Even worse than that, it is most listen to and work with the committee, rather than inappropriate at present. I ask the Minister what the against us. Government will do to ensure that this country and As for the Commission, there is not much left to our citizens will not be adversely affected. I will just say. I, too, sat open-mouthed at the evidence we took have time to address this if I borrow a little of the time in Brussels from Mr Zourek. It was unbelievable, of the noble Lord, Lord Flight. Box 1 of our report thoroughly unconvincing, almost unreal and not gives the objectives—I will not read them all—as laid something I had ever expected to hear from the out. On objective (a), as far as I am aware, there is Commission. currently no fragmentation to worry about. Objective Can my noble friend say something about the timing (b) talks about the costs of the recent crisis. None of for the resolution of differences between the Commission what we are talking about, or the bank resolution and the Council’s legal opinion? That is important. fund—which we are not talking about today, but Furthermore, is there a timing for, and any more which is important—refers to the current crisis and information on, the resolution of our objection, and the cost. It is all about the future. Objective (c) adds: when will the objection by Luxembourg, on the same “To create appropriate disincentives for transactions which do grounds as that of UK, be heard? Will it be at the not enhance the efficiency of the financial markets and thus same time as ours? trigger overinvestment in activities which are not welfare enhancing”. That is the woolliest rubbish of which one could 5.13 pm possibly conceive. How on earth is an inert tax going to differentiate between actions which may not be Viscount Brookeborough (CB): My Lords, we are, as welfare enhancing? That is absolutely ridiculous. Luckily, you see, very critical of the proposed FTT, for the one other objective was dropped: namely, a new revenue reasons laid out in both reports, that of March 2012 stream that could gradually displace national and now this one. contributions. Does anybody in this Room or anywhere I, too, have never seen such criticism of a Government’s else think that our contributions will ever be reduced response to an inquiry as can be found in paragraphs 12 by anything? to 20. I asked the Minister to explain why such a detailed and well researched report from a parliamentary committee was treated in such a dismissive way for so 5.17 pm long. The lack of recognition and acceptance of the Lord Davies of Stamford (Lab): My Lords, I start issues raised at the time have left us where we are now, by congratulating my colleagues, who did 90% of the and it is an example of the UK’s lack of engagement work on this report before I joined the committee, on on what may become EU policy. having done some sound work and having revealed, This brings me to the perceived attitude of our way ahead of the Commission or the Government Government to the EU. All too often, we are prepared realising it, the impact on non-participating states of to say that our main interest is the single market and this proposal. GC 279 EU: Financial Transaction Tax[17 DECEMBER 2013] EU: Financial Transaction Tax GC 280

By the way, the Government’s position is quite Finally, the report argues that this tax will impact in absurd. Most reasonable, sensible people litigate practice on a lot of investors, both retail and wholesale, only when they feel very strongly about something. If and on a lot of residents—institutional and otherwise, they feel strongly about something they are given corporate and otherwise—in this country, even though the opportunity to vote on, they vote against. This we do not participate in it. If we get none of the Government succeeded in abstaining and then in starting benefits because we do not receive any receipts from litigation. Their credibility is pretty small. the tax, of course, and the benefits of displacement from other markets where they are participating directly In my brief time, I will summarise in four propositions in the tax are much less than anticipated, there may what I feel about this proposal, about which I do not well come a time when the equation is such that it take as tragic a view as many of my colleagues. The would be worth our while to join in the tax and join in first proposition is that all taxes are unpopular. Any sharing in the proceeds. This is a matter which we new tax produces an outcry, sometimes hysterical, need—if the tax comes in at all—to keep permanently from those who are going to be, or might be, impacted. under review. One has to keep one’s cool against that noise. Secondly, all taxes have perverse economic consequences. I say to the noble Lord, Lord Hamilton, 5.21 pm that all taxes, as a first-order effect, reduce GDP Lord Kerr of Kinlochard (CB): I would like to because they reduce demand. Whether they ultimately reassure the Minister that we support the Government’s have a negative effect on a net basis depends on how present position. It was the abstention that surprised that money is spent by the taxing authority. However, us, not the litigation. We were rather keen on the idea direct taxes are enormously dangerous because they of litigation. impact directly on incentives to work, to save, to take risks, to set up enterprises and to invest. On the other We have been disappointed by the disdain with hand, indirect consumption taxes have the effect of which the Government have dismissed our concerns impacting most, by definition, on people with the down the years. I was disappointed in 2012 when the highest consumption ratios—in other words, the poorest Minister wrote to us, saying: people in society—so they are very unfair. The financial “We are sceptical whether other Member States will agree to a transaction tax has neither of those two disadvantages. … sub EU-27 … FTT or that it would work. If they decide to go ahead with a EU17 FTT, it may not necessarily be bad for the UK If you implemented it around the world, it might be because: UK may gain market share … and … the impact on the pretty close to being an ideal tax. UK may be no different from that on other international financial Thirdly, contrary to what you might expect theoretically, centres outside the euro area such as New York or Hong Kong”. tax arbitrage, or displacement of financial markets in Really? New York and Hong Kong are not subject to response to taxation, is actually much less effective the mutual assistance directive; we are. New York and and efficient than you might suppose, for a whole host Hong Kong would not collect this tax, as the noble of reasons. One is that people always want to trade in Lord, Lord Hamilton, pointed out. They would be the deepest markets. If you move out of the most laughing all the way to the bank. The true cost of the liquid, deepest markets, you will find that you are financial transaction tax—if it comes in—would be operating against wider spreads, which will more than the transactions displaced, which would migrate offshore, compensate for any avoidance of tax. That is particularly out of the whole of the EU, including away from true if, as in this case, a tax is 10 basis points. London. It is a pernicious proposal. The main reason why the market in trading in UK I was disappointed when the Government, in explaining equities has not moved into derivatives, contracts for why they abstained rather than opposed the idea of an difference, the option market and so forth is because FTT at 11, told us in Mr Clark’s letter this year that, people would be paying for much greater spreads than “the Government attaches great importance to the principle of they would be gaining on the stamp duty tax—that tax sovereignty, and therefore believes other member states should tax, of course, is 50 basis points. There are other be free to set their own tax policies … We also recognise that reasons why there is not so much displacement as you introduction of a FTT is of great importance to several of the might expect, one of which is the time zone problem, participating member states. Voting against the authorising proposal, another of which is that financial markets, particularly rather than abstaining, could have undermined these messages”. clearing houses and their principal customers—the I think that is completely absurd. I entirely agree with major banks—do not like cutting across major tax the doctrine of the principle of tax sovereignty, but authorities. They are particularly terrified of the IRS, that means that member states are entitled to impose of course, but they do not want to have an argument whatever taxes they like in their own countries provided with any major tax authority, including, in this case, they do not discriminate against other member states the Fisc or the Finanzamt. They do not want to have and do not damage the interests of other member an argument with the Inland Revenue, which is why, states. However, it does not mean that they are entitled when they set up American depositary receipt markets to impose a tax that damages us because we have to in New York in British equities, the American banks collect it at no benefit to our Exchequer but at great concerned have always paid the stamp duty at the damage to our markets. That is an absurd reading of front end on an advance basis: I think it is something tax sovereignty. It shows a defensive Treasury that is like 200 basis points. They have accepted that although refusing to get out there, argue proactively and build I do not think that obligation could ever be enforced alliances. After all, 17 member states are not going to in a court of law. Perhaps the Minister will confirm implement this tax. Had we approached them and this. argued the EU interest, and argued that EU markets, GC 281 EU: Financial Transaction Tax[LORDS] EU: Financial Transaction Tax GC 282

[LORD KERR OF KINLOCHARD] co-operation was being pushed ahead in a way that including their markets as well as ours, would be was detrimental to other member states, they were damaged by this tax, I do not believe that it would right to take the matter to court. have been impossible to block it. I think that the Anyone who has talked to people on the ground Government now agree, because they are litigating, knows that this proposal has run into great difficulties, that it is a highly undesirable measure. that many of the member states that initially supported I draw four short morals from this sad story. First, it are having very serious second thoughts and that it it is almost always a mistake to say, “Roll out the red is almost certain that the Commission proposals will carpet, let them do as they like, the business will come be heavily revised. We do not know what the outcome to London”. That was Boris Johnson’s position. As of that will be, but the existing proposal looks pretty usual, he got completely the wrong end of the stick. dead in the water. Sadly, the Government seem to have held on to the However, noble Lords have to take into account the wrong end of the stick for some considerable time. extremely strong feeling on the continent—and in this country—that it was the financial sector that caused Secondly, as the noble Lord, Lord Vallance, said, the crisis and it is the financial sector that has to pay the enhanced co-operation procedure is a new procedure. for the consequences of its irresponsibility. Of course, Case law is being developed. It will take some time to that is not an argument for a financial transaction tax construct sensible ground rules for ensuring that Articles but that is the principle on which a lot of the political 326 and 327 are respected. I suggest three rules: first, momentum behind this proposal is based. It is linked the substantive proposal must be on the table before to the idea that when things go wrong in future there the procedural decision is taken, as was suggested by should be bail-ins, not bailouts, and is intended to the noble Lord, Lord Vallance; secondly, the Commission provide revenues for dealing with bank resolution in and the Council secretariat must ensure that any the future. subsequent amendments do not introduce detriment In Britain we have raised taxes on the financial to non-participants; and thirdly, the overall EU interest sector. The bank levy is now going to be £3 billion by must be respected at all times by all the institutions, 2018-19, and stamp duty will be a similar amount. So including the Commission, which must not allow itself £6 billion a year, more than we raise in wine duty, to become the secretariat of a subset of member vehicle excise duty and inheritance tax, will come from states. specific taxes on the financial sector. We should talk to Lastly, we know that the Treasury is short-staffed our partners about much more effective ways of taxing and short on EU expertise. It is all the more sensible, the financial sector across the Union and get rid of therefore, to listen to the expertise available in this this unfortunate enhanced co-operation proposal. House and stop dismissing our reports with delay and disdain. I know that the Minister will not do that. 5.30 pm Lord Newby (LD): My Lords, I am extremely grateful 5.26 pm to the noble Lord, Lord Harrison, for introducing the report, and to all noble Lords who have spoken. I Lord Liddle (Lab): My Lords, I declare an interest think that all bar a couple of members of the committee as the chair of the Policy Network think tank, which have participated in the debate or are here. I therefore produced the report for the City of London Corporation feel that I am giving evidence to the committee rather on the future of financial services in Europe. It is than making a speech to the Grand Committee, which available on our website and includes reference to the makes the challenge all the more formidable. As one financial transaction tax. would have expected from the committee, the document The Opposition applaud this debate. We agree with is thorough and well researched, and is bound, as what my noble friend Lord Harrison said. He posed a previous reports on this subject have been, to help number of relevant questions to the Government and colour perceptions and debate in Brussels and across the Minister that need to be answered. A rethink of the EU, where sometimes the reports of your Lordships’ the financial transaction tax is probably under way in EU Committee are read more carefully than they are Brussels at the moment. I remember, as a naive young in the UK. man, reading the article by the Nobel laureate James The committee’s report makes a number of points Tobin which first proposed a version of the financial with which the Government strongly agree. First, the transaction tax and being very impressed by it. However, committee expresses strong misgivings about the legality it was always clear that it was a very difficult proposal. of the FTT proposal. Obviously, the Government It would certainly be difficult to make it work unless share those misgivings and that is why we have taken there was a transatlantic agreement—in the modern the case to the European Court of Justice. As the world, it may not be possible to do it even then. committee notes, of particular concern to the UK is Enhanced co-operation raises hugely difficult issues the extraterritorial impact of the so-called residence in this area. Under the treaty, enhanced co-operation principle, which, for example, would bring into scope can go ahead only where it does not do damage to the of the tax a UK pension fund buying UK government member states that are not taking part. Therefore, the bonds from the London branch of a bank headquartered Government were right in this case to mount a legal in Frankfurt. This is, in our view, an infringement of challenge. I am not normally of the view that one the provisions of the treaty designed to protect the should conduct one’s engagement in the European position of non-participating member states under Union by mounting legal challenges—negotiation enhanced co-operation, and that is at the heart of our is much better—but in this case, where enhanced challenge to the proposal. GC 283 EU: Financial Transaction Tax[17 DECEMBER 2013] EU: Financial Transaction Tax GC 284

That brings me on to the second point that your vote if we had voted against the decision, rather than Lordships’ committee discussed and which has been abstained, but argues that we should have sought raised this afternoon: the credibility of enhanced support for a blocking vote. co-operation as a way of doing business at all. The committee makes the perfectly valid point that there Lord Kerr of Kinlochard: It is certainly true that the is a real risk of harm to the credibility of enhanced report quotes the Government’s view, but I do not co-operation as a tool in the future because of the way think that we shared the Government’s view or that it has been operated in this case. We agree that acknowledged it as being correct. The view of the there has been a triple failure: in bringing forward this committee was that it was a pity that the Government legislation in undue haste; in paying insufficient regard had not been out seeking allies against the tax. to the views of non-participating member states; and in failing to support the proposal with a sufficiently thorough impact analysis—a point tellingly made by Lord Newby: My Lords, we will probably have to the noble Lord, Lord Hamilton. We completely agree agree to disagree on this. As the previous Financial with the committee that, particularly if this tool is to Secretary pointed out in the correspondence that the be more frequently used, it must command the confidence noble Lord, Lord Kerr, quoted, it was clear from of all member states. Indeed, this is the very point that discussions that took place in the lead-up to the ECOFIN the Government have been making to Council colleagues meeting that a qualifying majority of member states during these negotiations. was prepared to support the authorising decision. Moreover, abstention had no bearing on the prospects The conditions that govern the use of enhanced for our subsequent legal challenge. The noble Lord, co-operation are set out in the treaty in quite high-level Lord Kerr, talks about building alliances, an issue that terms, which makes it important during these early arose when we last discussed this matter, but we have uses of enhanced co-operation that the right precedents to accept, as the noble Lord, Lord Liddle, pointed out, are set in order to give the kind of confidence that we the strength of the political will across much of the believe all member states need if it is to be used more EU to introduce this tax. The UK standing up to say, frequently. Like the committee, we do not believe that “We are going to vote against it” would not have this has been a helpful precedent in that respect. The affected that. It is inconceivable that this would not conditions set out by the noble Lords, Lord Vallance have gone ahead at that meeting, whatever we had and Lord Kerr, about the future use of the procedure done. seem eminently sensible. The third concern, rightly highlighted by the committee, Lord Harrison: Perhaps the Minister can be helpful. is that it is highly unclear how the tax will be collected, The committee has made that point time and again. and what collection obligations are implied for non- Would it be useful if the Minister demonstrated the participating member states. What is clear, as the activity of the Government in Brussels in talking to committee points out, is that the UK will be required other member states: what canvassing they did and to fulfil any obligations it incurs under the mutual with whom they spoke? We would like to see the assistance in recovery directive. For that reason, as the ocular proof of the Government’s enthusiasm to block committee acknowledges in its report, we have included this tax. in our legal challenge the ground that an FTT would impose collection costs on non-participating member Lord Newby: My Lords, I will not go through a states that should properly, under the terms of the blow-by-blow account of which member state we spoke treaty, be fully borne by the participating member to at which point. The view was taken, which I believe states. was the correct one, that at that stage this proposal was unblockable, because of the political will to which However, there is a theme in the report on which I the noble Lord, Lord Liddle, referred. We may think cannot agree with the committee: the suggestion that that other member states are misguided. History may the Government have been in any way complacent in prove they are misguided. But there is a slight tendency relation to the risks of an FTT. The Government in the UK to believe that we always know best. We made their concerns about an FTT clear from the may well know best in this case, but the French and outset. In November 2011 the Chancellor highlighted the Germans think they know best, and it is a bold the serious problems with the Commission’s original UK Government—or committee of your Lordships’ proposal to other member states, and indeed UK-led House—who are unambiguously sure that they know opposition to what was on the table resulted in that better than a large number of major EU member proposal being dropped. states. It was obvious then that the proposal had not gone away, and the Government were very soon considering, Lord Davies of Stamford: My Lords, I put it to the and indeed taking legal advice on, the implications for Minister that the Government’s position is completely the UK of an FTT under enhanced co-operation. absurd. He is saying that the Government did not vote When Council authorisation for enhanced co-operation against this proposal because they thought they had a was sought at ECOFIN this January, we tabled a majority against them. Any democratic institution statement to the minutes of the meeting recording our would break down if no one bothered to vote because serious reservations about the legality of the authorising they thought that at any one time there might be a decision. The report acknowledges the Government’s majority against them. If the Government really felt point that it would not have made a difference to a strongly about something, so strongly that they were GC 285 EU: Financial Transaction Tax[LORDS] Barnett Formula GC 286

[LORD DAVIES OF STAMFORD] in the negotiations recently, largely because of the prepared to litigate, which is a much more provocative situation in Germany. As noble Lords will be aware, thing to do because it would put at risk all sorts of the German coalition deal has now been ratified and good will, the least they could have done would we expect more progress in the new year. have been to have voted against it when they had the The noble Earl, Lord Caithness, asked about the opportunity to do so. By not doing so, they lost a great timing of the resolution of the difference between deal of credibility. the Council and the Commission legal opinions. The conflicting opinions of the Commission and Council Lord Newby: As I said earlier, we will have to agree legal services were discussed by the 12 December to disagree on that. I do not believe that the Government working group and it is now for the Council members have lost credibility in the EU because of the stance and the 11 participating member states to weigh these they took. People believe that the Government understood as they begin to consider a compromise proposal. We the political realities. are not aware of any challenge from Luxembourg. On the timing of the legal challenge, we have exchanged Lord Kerr of Kinlochard: I am sorry to interrupt the written arguments with the Council. Several member Minister again, but from all I hear, I do not think that states and other eligible parties have intervened. Written there was a campaign with a ministerial delegation proceedings will come to a close in January, and it is and a City delegation visiting capitals other than the then down to the court. But, as noble Lords will be 11 arguing the damage to their markets and ours—the aware, oral proceedings would ordinarily take place overall EU market—which would result from the FTT. after written proceedings close. If I am wrong about that and such a delegation did go On the argument that has repeatedly been made out to Europe, I will withdraw my criticism. about our engaging positively with other member I believe that Policy Network is right when, in its states, the UK has been closely engaged with these report this week to the City of London Corporation, negotiations from the start. We have held numerous it states that there is an urgent need to: meetings with other member states about the FTT. “Upgrade the UK’s presence and leadership in Brussels by UK officials are closely engaged in the Council working building up close ties with like-minded member states. Moving groups, of which there have been five, including submitting from a reactive to a preventive and agenda-setting position seems detailed written technical questions to the committee. particularly paramount in that respect”. It simply is not the case that we have not been and will I hope that the Minister will at least agree with that. not continue to be fully engaged. I have gone over my time, for which I apologise. I Lord Newby: My Lords, I completely agree with it. thank the noble Lord, Lord Harrison, and members of the committee again for the report, and for generating what has been, as usual, an extremely stimulating Viscount Brookeborough: Perhaps I may ask a simple debate. question. I think the Minister said that the majority of politicians in Europe wanted this tax and therefore it would be difficult. Can he explain how 11 out of the Lord Harrison: I apologise; the noble Lord’s comments total of the member states comes out as a majority? have provoked a number of interventions. Can he promise the Committee that he will write to us on Lord Newby: I apologise if I said that. What I those many questions which he was eager to answer, meant to say was that there was not a qualified majority and give us full and ample replies to those which he against the proposal. There was not a sufficient weight was not able to reach? to prevent the proposal going through. I think that that was borne out by what happened at the relevant Lord Newby: I would be delighted to do so. Council meeting.

Lord Kerr of Kinlochard: My Lords— Barnett Formula Question for Short Debate Lord Newby: My Lords, I have 12 minutes, of which I have used 11, and I have not answered a single 5.47 pm substantive question posed by noble Lords. It is just possible that I might do so if I am allowed to respond Asked by Lord Shipley to some of the points that have been raised. To ask Her Majesty’s Government what plans I was asked where matters stand in terms of discussions they have to review the Barnett Formula in the in the Council. A Lithuanian document was produced light of the Local Government Association’s last week which I think has been rather mischaracterised recommendation that it be replaced with a new as to its significance. It is a short document and I have needs-based funding model. it with me. It was discussed briefly at last Thursday’s working group, but many participants were reluctant to discuss it, taking the view that the technical discussions Lord Shipley (LD): My Lords, I first declare my should not run ahead of and potentially prejudice the vice-presidency of the Local Government Association, more substantive discussions, so consideration of it and I thank noble Lords taking part in this debate for was limited. There has been no substantive breakthrough their contributions. GC 287 Barnett Formula[17 DECEMBER 2013] Barnett Formula GC 288

I have asked to discuss the Barnett formula today I turn now to the rising demand for devolved powers for three reasons: first, because the debate that will in England. The recent London Finance Commission take place over the next few months prior to the report, Raising the Capital, results from London’s referendum on Scottish independence in September boroughs and regional government looking closely at will cause the Barnett formula to be under close public the issues of taxation and finance in the wider south-east scrutiny; secondly, because of the rising demand across region with a view to considering a Barnett formula-style England for devolved powers from Whitehall similar settlement for the capital. That is welcome, except for to those available to the devolved Administrations of one thing. I am increasingly aware of a rising tide of Scotland, Wales and Northern Ireland; and thirdly, opinion in London that it should keep more of the because public spending cuts in England are making taxes it raises. The implications of this are potentially people in England question why the Barnett formula very serious for the rest of the UK, which is why we exists. That is of course a question that the noble need to think very hard, as a United Kingdom, about Lord, Lord Barnett, has himself asked many times. where taxes are raised and from whom, about what Indeed, it is unclear why it has been left alone for a levels of public spending should apply in each part of generation, why it is so out of date and why it allocates the UK, and about a system in which need is the basis more money to the devolved Administrations per capita for distribution. than it does to England. This debate now goes further than just London. The Core Cities Group, representing Birmingham, The Barnett formula was devised as a temporary Bristol, Leeds, Liverpool, Manchester, Newcastle, measure to resolve problems over the funding allocations Nottingham and Sheffield, is calling for a suite of between England, Scotland, Northern Ireland and fiscal reforms for England’s larger cities. The aim is the Wales ahead of the 1979 referendum on Scottish devolution of property tax revenue streams, including devolution. Many things have changed since the formula council tax, stamp duty, land tax and business rates, was created. As the Local Government Association with the ability to reform those taxes while retaining chairman, Sir Merrick Cockell, said recently, it is “a prudential rules for borrowing similar to recent changes historic relic”. He is right, because it has locked inequalities in Scotland through the Scotland Act and as now into its system of distribution. The consequence is proposed for Wales. The aim would be to generate that in terms of identifiable public spending by country funding to stimulate economic growth according to and region, all three of the devolved Administrations local needs, allowing cities to raise sustained investment have higher public spending per head of population for vital infrastructure projects. These proposals would than that of any English region, including London. be cost-neutral at the point of devolution, with no The Office for National Statistics says that in 2011-12, additional money being sought from the national pot Scotland received £10,088 per head, Wales £9,740, beyond that which the core cities already receive, Northern Ireland £10,623 and England just £8,491; along with the ability to raise new local taxes. Such those are the latest available figures. It is very hard to reforms would give practical effect to the ambition of justify England doing so relatively badly, not least the coalition Government to promote “radical because of the claim, sometimes correct, that public devolution”. Together, the English core cities and London services in Scotland are better than in England. There represent more than half of the UK economy and is a rising tide of opinion in England that tax revenue almost half the population, but they control only is being raised in England but is then diverted from around 5% of the taxes raised in their areas. Empowered England to be spent in Scotland on higher standards cities could join up public services and reduce dependency of public services. However, that is not entirely true: on London, which takes me to the current state of the tax raised in England is actually raised in London. local government finances in England. Furthermore, if the formula did not exist and if Scotland was independent, tax revenues from oil would broadly Last week’s Autumn Statement exempted local make up for the loss because 90% of the oil would be government from the further reductions that were in Scottish waters. applied to Whitehall departments. These measures are welcome. However, some council services are in serious A Select Committee of this House reviewed the difficulty, particularly because those councils more Barnett formula in 2009. It pointed out that the formula dependent on central grant cannot raise large sums was used to allocate over half the total public expenditure through council tax and other fees and charges. Central in Scotland, Wales and Northern Ireland. It also pointed grants for local government are to be cut by 43% by out that although the annual increment in funds is 2015-16, and there will be a funding gap of more than made on the basis of recent population figures, the £15 billion by the end of the decade if things go on as baseline, accumulated over the past 30 years, does not they are. That takes me to the issue of fairness. reflect today’s population in the devolved Administrations. It is therefore out of date and takes no account of the The way the Barnett formula is calculated is widely relative needs of any of the devolved Administrations. acknowledged to give more to Scotland and Northern The Select Committee recommended a UK funding Ireland compared with their relative needs, and less to commission—which seems to me to be an extremely England and Wales than their relative needs would good idea—that would identify a small number of justify, by more than £4 billion a year. This is unsustainable. need indicators and oversee the transition to a new Governments have consistently said over many years system of block grant made over between three and that they will not review the Barnett formula and, in seven years. It has not happened, of course, but I the case of this Government, not until the public would submit that it cannot be delayed for long. finances are stabilised. I understand the Government’s GC 289 Barnett Formula[LORDS] Barnett Formula GC 290

[LORD SHIPLEY] Similar cuts are of course being felt across all predicament. I do not argue that Scotland should Administrations. As my noble friend Lord Shipley was necessarily get less because I believe in a funding saying, there have been many calls for a needs-based system based upon a needs assessment, but I do argue approach to be used in a new calculation—to the that Wales and the constituent parts of England should extent that many in the public now think that this be treated equally and empowered to create more of occurs under the Barnett formula; but of course this is their own tax income. not true. There is some evidence that it was considered As an example, Birmingham has called for a single in the early days under what was known as the Goschen funding pot at the city region level for local authority formula, which was replaced in 1979. The arguments spending, health, and for expenditure by the Department will have been used by Scottish Secretaries of State for Work and Pensions. Savings are there to be made and others to obtain funding, but the approach has by reducing duplication. If the referendum next September not been part of the Barnett formula. in Scotland is in favour of independence the Barnett The needs-based approach was certainly central to formula will be abolished. If there is a no vote there the recommendations of the report referred to by the will inevitably be a debate about yet further devolution noble Lord, Lord Shipley, which your Lordships’ beyond the Scotland Act, and I personally would committee produced in July 2009 and which was firmly welcome that. When that debate happens there will be rejected by the Government. It now appears that the a rising demand for the fiscal and political devolution issue has been taken up by the more recent Holtham offered to Scotland also to be available in England, commission. It would be interesting to know whether with a system of allocation based on needs. Now is the its needs-based formula was the same as that put time to act and to set up the UK funding commission forward by your Lordships’ report, but this development proposed by the Select Committee of your Lordships’ has meant that people are now beginning to put House four years ago. We should create a place-based figures on the disparities that it has thrown up, and system of finance in England. This could be based on local government is taking much greater interest. the governance that has developed locally—combined Of course, there is a great deal of rethinking going authorities, health and well-being boards, joint committees, on, both in administration and on the financial front. local enterprise partnerships and so on. We should The Scottish Government are having to juggle three give local government and their partner organisations scenarios: the cuts to their previous budget envisaged the power to allow individual areas to shape public by the Chancellor using Barnett; their own proposals services and investment, and to incentivise local growth for a totally independent country, where we are not in by devolving powers on taxes and spending to suit the least clear as to what funding will be available local needs beyond the 50% permitted from growth in under a great many headings; and the wholly new business rates. settlement promised by the implementation of Part 3 In conclusion, it is important that we are not divisive. of the Scotland Act 2012, where the Scottish Government We should learn from the wealth of evidence on this will be raising half the taxation required for their issue and have a mature discussion as a United Kingdom domestic budget. Of course, this will still be governed on how devolution can drive growth and a bigger local by the overall size of the estimate of what is due under tax base, as well as on how resources can be allocated the block grant. more fairly on the basis of need. In the mean time, as Given the complications that all this envisages, it is we await the local government settlement tomorrow, it quite easily understood that there is not much sympathy will not be enough for the Government yet again to from that quarter for any further adjustments. If the push this issue into the long grass. Minister cannot give a positive response to the noble Lord, Lord Shipley, perhaps parties should think about 5.57 pm whether this is something that should be in their The Duke of Montrose (Con): My Lords, I thank election manifestos. my noble friend Lord Shipley for introducing this topic and for giving us such interesting views on a new 6.01 pm form of local government that certainly contains many elements. Lord Jones (Lab): My Lords, I thank the noble Lord, Lord Shipley, for initiating this debate, and his As he said, it is of course most understandable that succinct address. devolved Administrations and local government are all looking harder at the way funding from central Were he alive, Lord Roberts of Conwy would be government is divided up. All are facing much-reduced here today.As a long-standing ministerial and opposition budgets and the actual cuts relate considerably to the opponent of his, I think that his contribution to application of the Barnett formula. Until the last Wales’s public life was magnificent. He was more than election the Scottish Government revelled in the fact ever loyal to Wales’s local government units, and his that their block grant increased by two and a quarter journey from the Methodist manse of Ynys Môn to times to nearly £29 billion. The two years of the high rank here in your Lordships’ House is a fine essay current Administration has seen this cut so far by in giving good public service. Wyn Roberts built more £589 million. My right honourable friend the Chancellor roads than the Romans ever did, and he built schools of the Exchequer on 29 June, in Hansard at col. 306, and hospitals. He was a fine man. seemed to estimate that the block grant in the current As I see it, the background to the Barnett formula year would be only £26 billion. Perhaps the Minister was the consequence of three beleaguered Administrations can tell the Committee if this is still the figure that of which I was a member, led first by Prime Minister would apply. Harold Wilson and then by Prime Minister James GC 291 Barnett Formula[17 DECEMBER 2013] Barnett Formula GC 292

Callaghan. The latter Administration was sustained more than its fair share of funding; this was up from by a Lib-Lab pact of a kind. In those crisis years, as he 24% in 2002. What implications does this have for the was addressing the complex algebra of local government adult social care system, which in England is underfunded? finance, the noble Lord, Lord Barnett, knew that the Over the past three years, budgets have reduced by IMF was kicking in the doors of the Treasury, that the 20%. There is a growing gap between the demand British manufacturing smokestacks were falling down for social care and the resources invested in it. The by the day, that the OPEC nations had trebled—indeed, Government are not providing councils with enough quadrupled—the price of oil, and that a fearful inflation funding to deliver the care people need. An additional was raging, some 27% year-on-year in 1975. That also £400 million a year is needed to maintain the same triggered off what is now called in shorthand trade level of service, excluding inflation. union militancy. In Somerset, a secondary school which covers an I will give the following brief vision of how the area of 600 square miles transports children to and noble Lord coped as Chief Secretary. You would find from their homes, an expensive and large logistical him in the Members’ Dining Room in another place exercise. Delivering dignified and appropriate care to with his great friend, the noble Lord, Lord Sheldon, their elderly relatives in the same area is much more and he coped by opening a half-bottle of House of challenging when often the assessment is for only Commons champagne. He then went back to the 20 minutes of care and the drive to the next client is Treasury that little bit better in his morale. It was from 30 minutes away. The solution is to reshape local these fires in British governance that the Barnett formula health and social care systems and invest in community- arose, as it were, metaphorically so, from the political based services. These will alleviate pressure on the loins of the noble Lord, Lord Barnett. My one observation acute sector. The Government have acknowledged this is to be careful for what you wish if you are a Welshman with the Care Bill and duties on councils to provide or in governance, particularly in Wales. Whatever the arrange services that prevent, delay or reduce needs. outcome of the Scottish constitutional debate, Barnett Reforms require proper resourcing. If the funding will come to the fore in all our deliberations and arrangements across the UK were fairer, more could arguably shall be in the manifestos of the great political be invested in the English social care system and parties. That is for certain. preventive community care services, with reduced spending My caution is this. Roughly speaking, per head of on expensive A&E acute services. People will rightly the population in England the sum of money per see the current distribution as unfair and look at citizen is exceeded in Scotland by £1,400; and in my comparisons in local services received north and south own country, Wales, by some £800. I have spent only of the border. The English and Scottish social care 43 years here in Westminster, and I am concerned that systems are different. There is different legislation, when Whitehall mandarins have their monthly meetings and there are different entitlements and progress on they may be tempted to consider how they may be able integrating health and social care. Scotland is the only to get rid of the responsibility as it affects the Celtic part of the United Kingdom to introduce free personal fringes. I therefore feel that before one advances one care where the full costs are covered by the state. In should know precisely what the outcome is. That is England, the plan is to cap costs. That is a major what the noble Lord, Lord Barnett, always did; he was difference. In effect, English taxpayers, through the an accountant by profession. I offer again the sight of Barnett formula, are subsidising a level of care to the noble Lord quaffing his half-bottle of Commons which they themselves do not have access. champagne before going back to address problems of I am pleased that we have had the opportunity great crisis. today to debate this issue and I agree with my noble friend Lord Shipley that it is right that the Barnett 6.06 pm arrangements, agreed as a temporary measure in 1979, should be reviewed. Very few people consider 34 years Baroness Bakewell of Hardington Mandeville (LD): as temporary. To question Barnett is not to question Like my noble friend Lord Shipley, I believe that the the future of Scotland in our union. Instead, this Barnett formula is fundamentally unfair and I will debate is about the question of basic fairness across relate this to adult social care. As we have heard, this is the UK. I therefore call on the Government to set out an out-of-date formula for allocating resources across their plans for making a constitutional settlement fair the UK. for all. The Local Government Association estimates that allocating funding on a needs-based formula would potentially increase public spending in England by 6.10 pm £4.1 billion. This would make a huge difference to Baroness Eaton (Con): My Lords, I also declare an services currently stretched to their limit. There would interest as a vice-president of the Local Government be a decrease in Scotland and Northern Ireland. Association, of which I am a former chairman, and I Government figures already show Scotland as overfunded. want to add my thanks to the noble Lord, Lord In a recent report, the Treasury said that since 1998, Shipley, for initiating this important debate. I strongly “public spending per person in Scotland has been around 10 per support the recommendation made by the Local cent higher than the UK”. Government Association that the Barnett formula In the current climate, this is simply unsustainable. should be scrapped, and I call on the Treasury to start This unfairness is understood by most people in evaluating the alternatives. As we have heard, figures England. In 2012, the Future of England survey indicated from the United Kingdom Government highlight that that 52% of those surveyed felt that Scotland received Scotland is overfunded. The noble Lord, Lord Shipley, GC 293 Barnett Formula[LORDS] Barnett Formula GC 294

[BARONESS EATON] coming along and it is most unlikely that people will has made the case as to why the formula is unfair and I put forward radical solutions before an election. If support his call for the return of the £4 billion to you wait until after the election takes place, you are England that he referred to so strongly. This is imperative five years from the next, and action has got to be a at a time when money is desperately needed for all very early priority for the next Government. public services, including for adult social care which Other noble Lords have explained how this money we have heard about so ably from the noble Baroness, is needed and I will not spend time talking about that. Lady Bakewell. The previous speech indicated that bold action is Basic fairness is not just about the money, important necessary, but bold action rarely comes very late on in as that is. It is also about devolution from Whitehall to a Parliament, so I do not expect it to happen immediately. local government in England. This will give people a However, I do expect a real attempt—cross-party greater say in their public services and a more meaningful agreement would be achievable—at a proper in-depth reason to vote in local elections. Recent polling by examination of the issues which have been revealed. I Ipsos MORI showed that 79% of people trust their do not know how such a thing can be set up or how council, whereas only 11% trust central Government. independent it can be but I urge the Minister to really English councils are delivering for their communities look forward and give us some hope that things are and the Barnett formula should reflect that. going to get better. Everybody knows that local I would now like to turn very briefly to how the government services in many places are on the point of Government can deliver devolution across the United breakdown. As these cuts continue for the next two Kingdom in a way that is fair to England, Wales, years, it is going to get very serious indeed, and Scotland, and Northern Ireland. As we have heard politicians, at the next election or immediately afterwards, already in today’s debate, Her Majesty’s Government have to come up with some convincing formula about need to ensure that money is distributed fairly across how this is going to be tackled. the four countries. Having reformed the Barnett It is no good talking about how the Barnett formula formula, HM Government should aim to implement has served us well—that is really a lot of nonsense. It the informative recommendations made in the document was a short-term measure set up to get through a produced by the Local Government Association entitled difficult election period. However, that does not mean Rewiring Public Services. They would make sure that there is any justification for letting this hang on—it is the benefits of devolution are felt across England, and time for new and radical thought, into which local this could be achieved by, first, adopting five-year government has a really good input. I commend that funding settlements for local government across the to the Minister and would like to hear in his reply what lifetime of a Parliament. Progress towards this goal he intends to do about it. was made in the Autumn Statement, which announced that local public services will get the same long-term 6.18 pm indicative financial statements as central Government. Lord Wigley (PC): My Lords, I thank the noble Secondly, money should be shared more fairly around Lord, Lord Shipley, for facilitating this debate. I identified England by taking financial distribution out of the with many of the points that he made. I also join the hands of Ministers and replacing it with an agreement noble Lord, Lord Jones, in his comments about the across English local government. Thirdly, local government late Wyn Roberts, whom we all miss very much. should be given wider revenue-raising powers, and fourthly, developing a market in municipal bonds that I am glad this opportunity has arisen to comment gives local government access to alternative forms of on the LGA’s submission on the Barnett formula in finance. the context of the Autumn Statement. There is only time to make a few benchmark points today, but it is Local government in England is currently dealing worth noting that the LGA is working on alternative with unprecedented reductions to its funding. Core funding proposals, which will be published, I believe, funding will have been cut by 43% across the lifetime next summer. I welcome that, although I hope they of this Parliament. There is, as the noble Lord, Lord will consult both the WLGA and the devolved Shipley, has said, a projected £15 billion funding gap Government in Wales in taking that forward. The by 2019-20 that councils must close in order to meet implication is that there should be mechanisms for their legal responsibility to balance the books. The distributing resources according to need within England size of the challenge is so great that tinkering at the as well as within the UK. margins will not be enough. Without radical change in the way funding is distributed across the UK, we risk a Noble Lords will be aware of the grave dissatisfaction situation where services in England that the public that has existed in Wales for many years with regard to care deeply about will start to fail. Bold, imaginative the inequity of the Barnett formula. The report of the action and political leadership are required to restore Select Committee on the Barnett Formula in the House financial stability. It is time for a fairer deal for England of Lords in the 2008-09 Session, and English councils. “concluded that the Barnett Formula should no longer be used to determine annual increases in the block grant for the United Kingdom’s devolved administrations”. 6.15 pm It added the pertinent comment: Lord Bradshaw (LD): In his reply, I would like the “The Barnett Formula also takes no account of the relative Minister to address the point that if any reform—which needs of any of the devolved administrations”. he may or may not agree to—is to be worth while, the The Holtham commission, which investigated these work on structuring it has to begin now. Elections are matters in Wales, produced two assessments. The first, GC 295 Barnett Formula[17 DECEMBER 2013] Barnett Formula GC 296 on the basis of the formula used within England to The Duke of Montrose: From the study that the distribute resources, estimated that Wales was underfunded noble Lord has made, perhaps I may ask him whether in 2010-11 by some £300 million. The second independent the shortfall that the LGA was talking about is based assessment identified a £400 million shortfall. The Silk purely on equality of distribution, or took into account commission, which reported on possible changes to the Holtham needs-based formula. the financial powers of the National Assembly, agreed with Holtham in its analysis. The Holtham commission set out, as an alternative to the Barnett formula, Lord Wigley: The table that was published, which I parameters for a needs-based formula which included do not have time to go into in detail, referred to, the number of children, the number of older people, “Identifiable public sector expenditure”, which is a ethnicity, income poverty, prevalence of ill health and different concept from that which is attributed by sparsity of population. Barnett or needs analysis in its own right. The conclusions of the House of Lords Select Committee to which I referred spelt out as parameters 6.23 pm the age structure of the population, low income, ill Lord Teverson (LD): My Lords, I note that the health and disability, and economic weakness. To that noble Lord, Lord Wigley, asked that political parties extent, the House of Lords Select Committee, the include a needs-based formula in their manifestos. I Holtham report and the Silk commission were moving somehow suspect that they will not be on the front in the same direction. The LGA in its paper recognised pages or among the first six pledges—or three or the significance of looking at, however many pledges we choose—because this is one “the total identifiable public spending”, those subjects that has become all too difficult, which is why this temporary situation has lasted for three and states: decades. It certainly needs to be changed but, having “Scotland is overfunded by £4.4 bn”, said that, what is the difference that such a change although this appears to be on the basis of Scotland’s would make in England? It would be an extra 4%, fiscal and macroeconomic position, not on the basis which I am sure would be very much welcomed by of any detailed analysis of Scotland’s needs, which local authorities but is not a big difference. It is rather seems perverse. an obscure issue for the electorate, which does not make it any less important, but most people would Of course, if Scotland votes for independence it will probably interpret it as something to do with the fund the entirety of its services from taxation raised by financing of one of the more obscure London boroughs, the Scottish Government. Independence, to that extent, rather than attribute it to one of our noble colleagues would bring to an end any feeling, rightly or wrongly, here. that Scotland is being overfunded at the expense of England. Perhaps Scottish independence will solve the I should like to move on and ask: what should problem that is bugging some colleagues here today. I really be done if the situation gets a little more difficult? do not suppose that they would support a yes vote, A needs-based formula would certainly be better. I am however. slightly sceptical about an independent commission but the European Union manages rather objectively to Whereas the LGA in its paper purports to represent distribute structural funds, so it may be that this sort councils in England and Wales, it pitches its arguments of thing can happen even within a political environment. solely in the context of England. It opens with the Two areas are even more important than this, one of words: which is the rural/urban divide that, unfortunately, my “English communities are being short-changed by as much as Government have so far not been able to mend much, £4.1 billion a year”. if at all, during their period in office. I remind noble Lords that rural areas pay higher tax bills, get some It makes no reference in its text to the fact that Wales 52% less in government grants, and have fewer public also is being underfunded on that basis and, presumably services because they are more difficult to deliver on the LGA’s own logic, should be receiving £300 there. That is one of the fundamental areas, which, if million or £400 million a year more to put this right. we keep a similar form of local government finance to Here I must note that the WLGA, which represents what we have now, needs to be fixed very quickly and Welsh local authorities, while supporting the LGA’s thoroughly. call for a needs-based formula, has said that it, The other area that has been mentioned by other “certainly cannot support the idea of decimating Scottish local noble Lords, which is equally if not more important, is government expenditure to achieve this, or having the entirety of any redistribution of funding to be spent solely in England on that we need to do something far more basic than social care”. changing the Barnett formula: we need to increase substantially the taxation that is raised locally. Rather Is the decimation of Scottish local government the than mess around with the Barnett formula, we need alternative that Scotland faces if it votes no next to start to implement a much greater degree of localism. September? Clearly, we have got rid of a lot of ring-fencing over In conclusion, I very much support the thrust of the past few years. We have got rid of capping, although the LGA’s approach, although the details need much we have replaced that with other ways of restraining further consideration. I hope, however, that all UK local expenditure. We have taken away barriers stopping parties will make a pledge in their manifestos for the local authorities from raising revenues in all sorts of 2015 election to introduce a needs-based formula for ways. I welcome that, which came from one of the distribution of resources. Government’s early initiatives under localism. However, GC 297 Barnett Formula[LORDS] Barnett Formula GC 298

[LORD TEVERSON] Local Government Association’s recommendation that over the medium term we need to move financing the Barnett formula is replaced with a new needs-based from 5% towards 20%, and hopefully in the longer funding model. term far higher, so that we have much more local The Barnett formula is often discussed in your accountability and democracy, and better local decision- Lordships’ House and I hope that, in his response to making. Within Europe we are the most centralised the debate, the noble Lord, Lord Newby, will give us a state as far as taxation is concerned, certainly among bit more information than we were able to get in an the major states. That needs to change. We need to exchange at Question Time, and address some of the change the rural/urban divide. If we can do all that, points I am going to make about the funding of local then I would support my noble friend Lord Shipley in government in England and Wales. Like all noble changing the Barnett formula as well. Lords, I am aware that the formula which bears the name of my noble friend Lord Barnett was devised 6.26 pm when he was Chief Secretary to the Treasury and has The Earl of Mar and Kellie (LD): My Lords, I will been used for more than 30 years to allocate more speak briefly in the gap. than half of total public expenditure in Scotland, Wales and Northern Ireland. I was a member of the Select Committee which recommended moving from the Barnett formula to The Barnett formula has been criticised on a number needs assessment. However, the first thing we learnt of grounds. It has been argued, among other things, from the evidence was that the Barnett formula is that, because of its focus on population, it fails to extremely simple to operate, which was a bonus for the recognise higher levels of poverty. In this debate it is Treasury, which knew immediately how much was to useful to look at what has happened to local government be allocated to Scotland, Wales and Northern Ireland. in England and Wales in recent years, and in particular since 2010. We have a picture of local government that We learnt from the evidence that England and has been described by the Prime Minister as, Scotland are pretty similar in terms of needs, while Wales has a disproportionate number of ill people and “officially the most efficient part of the public sector”. Northern Ireland a disproportionate number of young However, his Government have made bigger and earlier people. We also learnt, as I sincerely believe, that cuts to local government than to any other part of the Wales misses out under the current arithmetic of the public sector. Their actions have been criticised right Barnett formula. In Scotland the Barnett formula is across local government and real inequalities and seen as a bribe to stay. unfairness have crept into the system. I still find it A more valid reason, and in my view the only shocking, when I look at the figures, to see that they possible justification, for the £1,600 per person additional highlight the West Oxfordshire District Council, the spend in Scotland is that the tax take from Scotland local authority that covers the Prime Minister’s does not include the oil and gas revenues, because constituency, which is ranked in the multiple indices of these are allocated to the slightly fictitious area called deprivation at 316—with one being the most deprived the United Kingdom continental shelf, not to Scotland. and 325 being the least deprived—and which is actually getting an increase of 3.1% in its spending power. Ultimately, any perceived proposed reduction in the Meanwhile, other local authorities such as Hastings Barnett formula is a gift to the yes campaign and the on the south coast and Burnley in the north-west, possibility of Scotland becoming a better democracy. which are ranked 19th and 11th respectively in the It was a great disappointment that there was no White same indices, are facing the maximum cut in their Paper from the no campaign, one with a title something spending power in 2013-14, which equates to a reduction like “The Better Governance of Scotland”. of 8.8%. I agree very much with the comments made I understand that the three major parties still have by the noble Lord, Lord Shipley, regarding the difficulties no idea what they would like to deliver for Scotland; in which some local authorities find themselves. they need to work that out. They all talk about more devolution, but I wonder how much more can be It is also shocking to note that the 10 most deprived devolved before eating into what I call the four pillars local authorities in England will lose six times the of reservation: microeconomics and taxation, the welfare amount of spending power per head of the population system, foreign policy, and defence. The solution for a when compared with the 10 least deprived local authorities better United Kingdom is never going to be described by 2014-15, when compared with 2010-11. The noble in the party election manifestos, so there is more work Lord, Lord Shipley, also referred to the calls for to be done on this. further devolution of powers and fiscal reforms in England. I very much agree with his comments about Noble Lords should not read anything into the fact the core cities. that I am speaking from this side of the Committee—I have always done so since the Grand Committee came Will the noble Lord, Lord Newby, address in his into effect. We were allowed to sit anywhere, and I like response the points that the Local Government to see the whites of the Minister’s eyes. Association are calling for, to which the noble Baroness, Lady Eaton, referred, including five-year funding settlements across the public sector to give more certainty 6.30 pm to local government? That is a sensible idea. Will he Lord Kennedy of Southwark (Lab): My Lords, like also address the point about the distribution of funds other noble Lords who have spoken, I place on record in England being taken out of the hands of Ministers my thanks to the noble Lord, Lord Shipley, for initiating and replaced with an agreement across English local this Question for Short Debate in the light of the government? The current arrangements are opaque GC 299 Barnett Formula[17 DECEMBER 2013] Barnett Formula GC 300 and, as with the figures I highlighted earlier, people transparency, once you look into it in any detail, it struggle to understand them and how they are arrived does feature certain aspects of the Schleswig-Holstein at. They just demonstrate unfairness in the process—a problem and at the margin gets extremely complicated. process which disadvantages people living in our most Since today’s debate was prompted by the Local deprived areas and communities. I very much agree Government Association’s concerns about the formula, with the noble Baroness, Lady Eaton, that the devolution I stress that the Government understand the concerns of further power to local government in England is a of English local authorities. That is why in the Autumn good thing. Like her, I have also noted the MORI Statement we recognised concerns about the polling which shows that 79% of people trust their administration of the new homes bonus by giving that local council, whereas only 11% trust central government. back directly to local authorities, exempted local I shall not comment further on that; I leave it there. authorities from any further reductions in annual revenue This debate has to address the issues around spending budgets to assist them in freezing council tax in 2014-15 in our most deprived communities. How do we ensure and 2015-16, and made additional funding available that no matter whether you are living in a deprived to support housing and other infrastructure development. part of Glasgow, a deprived mining village in south I will make a number of general comments now Wales or on a council estate in Southwark, central, and come back to some of the specific comments devolved and local government provide the funding under the headings England, Scotland and Wales that helps you improve the situation in which you and respectively. The Government are reluctant to join your community find yourselves, whether through the those who call for a rapid demolition of the funding provision of better housing, better schools, the means architecture for the devolved Administrations but to get the skills and training you need to get a job to we recognise that there is a range of valid views on provide for your family, or to look after yourself in alternatives. Changes to the devolution settlements your old age as your needs change? already legislated for in relation to Scotland and The noble Duke, the Duke of Montrose, made a in prospect for Wales are increasing the levels of number of important points to which I hope the noble accountability and flexibility the devolved Administrations Lord, Lord Newby, will respond. I again thank the will have in future over their own fiscal position. noble Lord, Lord Shipley, for initiating this debate and look forward to the response of the noble Lord, 6.37 pm Lord Newby. Sitting suspended for a Division in the House. 6.34 pm Lord Newby (LD): My Lords, this is an important 6.47 pm subject and I am grateful to the noble Lord, Lord Lord Newby: My Lords, as I was saying, changes to Shipley, for giving us the opportunity to debate it this the devolution settlements already legislated for in afternoon, and for all the contributions that have been relation to Scotland, and in prospect for Wales, are made. increasing the levels of accountability and flexibility For what is essentially a mathematical equation, the the devolved Administrations there will have in future Barnett formula retains the capacity to generate over their own fiscal position. That has been warmly considerable passion and debate, as we have demonstrated welcomed in both those parts of the United Kingdom. today. Clearly, noble Lords are aware of the formula’s Similarly, in England, the Government have already origins in the late 1970s. The Government of the day initiated an historic shift of power to local areas by decided at the time of the devolution Acts in 1998 to removing ring-fences from £7 billion of local government retain the block grant and Barnett formula arrangements funding and giving councils the ability to retain 50% for determining the budgets of the devolved of the business rates they collect; I will come back to Administrations. The noble Lord, Lord Jones, gave us that in a moment. some gory details of the state of the British economy At least one other noble Lord has referred to the at the time but also of the extremely civilised way in House of Lords Select Committee in 2009, which which the noble Lord, Lord Barnett, grappled with concluded that, despite some shortcomings, them. I am sorry that there is only water on offer to “the advantages of the Barnett Formula—simplicity, stability and the Committee this afternoon. the absence of ring-fencing—are important and should be maintained Successive Governments have taken the view that whatever the future methods of allocating funds to the devolved while the Barnett formula may not be perfect, a persuasive administrations”. case has yet to be put that an obvious alternative exists While we recognise the concerns expressed about the that would simultaneously satisfy the devolved formula, as made clear in our programme for Government, Administrations in Northern Ireland, Scotland and this Government’s priorities remain that we deal with Wales and all the other bodies competing for funding the deficit, bring debt down, and build on the growth from the Government—not least Whitehall departments we are beginning to see demonstrated right across the and local authorities. While it clearly is not perfect, the UK. There are therefore no plans to review the formula Barnett formula has proven to be a relatively transparent, in this Parliament. durable, robust and fair method of calculating changes I move on to the English, Scottish and Welsh in budgets for the devolved Administrations since contributions to the debate in turn. The noble Lord, devolution. It operates at a high level, based on population Lord Shipley, made a powerful argument for more shares and changes to spending by comparable devolution within England and greater autonomy UK departments. Despite a considerable element of for the core cities, and London in particular. I have GC 301 Barnett Formula[LORDS] Barnett Formula GC 302

[LORD NEWBY] hope for is a clear statement in each of the manifestos considerable sympathy with that. I was very much on how the parties plan to deal with this issue in the involved in plans for regional government during the next Parliament. previous Administration. My preference would have been to have powerful regions as counterpoints to, to a The noble Baroness, Lady Eaton, pointed out the certain extent, Scotland and Wales. However, that extent to which the Government are moving towards vision of how we might manage affairs in England at least some of the LGA proposals, not least in terms rather crumbled to dust. of long-term indicative financial statements. That is a very welcome move, particularly because it has taken It is interesting to note how the core cities have so long to do it. We are sometimes pretty reticent stepped up to the plate and are coming up with a about claiming progress when we make it, but that is number of innovative proposals, to some of which the something which local authorities have been asking noble Lord referred, to enable greater devolution to for for a long time, and there is real movement. them. However, the problem with the core cities approach The noble Lord, Lord Teverson, as I have mentioned, to devolution goes to the point made by my noble talked about the rural/urban divide. He basically said friend Lord Teverson, which is that they have the mass that we should not get too obsessed by Barnett, but and momentum to take devolution forward, but if you should worry about the whole raft of issues. I have a are not careful, that will leave a lot of the rest of the lot of sympathy with him on that. country behind. It is difficult to see how to get some kind of uniformity of approach if the cities themselves The noble Lord, Lord Kennedy, made a point take a huge leading role. about the funding in West Oxfordshire. The only thing I would say about funding for any local authority area I agree completely with the need to develop further is that, if the Barnett formula has elements of the the place-based approach to financing local government. Schleswig-Holstein problem, local government funding Although this may be a little pessimistic, it is one of allocations in England are vastly more complicated the relatively rare innovations in public policy which I than Schleswig-Holstein ever was. Despite there being think has been an unambiguous success. I hope very allegedly objective formulae for determining that, I much that we press on with it because not only does it have always found it difficult to get from the formulae give the flexibility that enables considerable efficiencies to the actual results; no doubt that is my inability. to be driven forward, it also gives local authorities a greater sense of their own destiny, which is important The noble Duke, the Duke of Montrose, asked us if they are to flourish in the medium term. to confirm a number of figures in relation to Scotland. I believe that they are correct, but if I am wrong I will As part of his argument, the noble Lord, Lord write to him. He asked whether the Scottish Government’s Shipley, discussed the inequality in per head allocations current block grant absorbed the cuts. The cuts to between England and the devolved Administrations. devolved Administration budgets have tended to be There are, of course, very considerable differences proportionately smaller than those to Whitehall between the regions of England. As he knows, the departments, but that is due to the comparability north-east has higher public spending per head than, factor built into Barnett: specifically, the protection to for example, does Wales. There are obvious reasons English health and school budgets. for that, but it is worth pointing out that England The noble Lord, Lord Wigley, discussed the challenges differs considerably in the level of expenditure per in Wales in this area, and talked not least about the head that it enjoys at the moment. Holtham commission, which was an extremely thorough My noble friend Lady Bakewell was one of a number piece of work and demonstrated one approach to an of noble Lords to set out the straightforward English alternative needs-based formula to Barnett. Clearly, it case for a review of the formula as proposed by the is not absolutely straightforward to get from where we LGA. I understand absolutely why she feels so strongly are now to a needs-based approach which everybody about it. She talked particularly about adult social agrees is the optimal way forward, but I pay tribute to care. As she will be aware, the Government are making the Holtham commission for its work. enough funding available to ensure that local authorities Finally, on the complications of making comparisons, do not need to reduce the level of social care services several noble Lords, including the noble Lord, Lord that they are providing through to 2015-16, and the Wigley, referred to the public expenditure statistical range of reforms we are introducing are all aimed at analysis figures on per capita expenditure. It is worth allowing local authorities to do more in order to clarifying that these are not simply devolved deliver better outcomes, including the new £3.8 billion Administration budgets. They include some bits of health and social care integration pool. That is another UK-wide expenditure, not least welfare. One must example of taking an integrated approach rather than take that into account when looking at the comparability. a silo-based one which, whatever is done with the Barnett formula, is very important. I know that I will not have been able to completely satisfy my noble friend Lord Shipley and other noble My noble friend Lord Bradshaw enjoined the Lords, but I hope that I have been able to demonstrate Government to start working on how we might replace that we are alive to the issues and are moving towards the Barnett formula and suggested that we might greater place-based delivery for England, which will adopt a cross-party attempt to do so. I suspect that help local authorities deal with the challenges that that would be quite tricky between now and the next they face. I am extremely grateful to my noble friend election, and I think that the most he can realistically Lord Shipley for initiating the debate. GC 303 Barnett Formula[17 DECEMBER 2013] Barnett Formula GC 304

Lord Kennedy of Southwark: My Lords, in response Lord Newby: My Lords, there is to be a Statement to the point about the funding formulas in West before the Commons rises for Christmas about the Oxfordshire, I agree that it is very complicated stuff. Is funding for the next financial year, which will give the there anything that the Minister or his department noble Lord’s colleagues in the other place, if not could provide to Members so that we may understand necessarily here, the chance to ask a lot of detailed it further? If we have debates saying that this council questions about that. Perhaps it is a subject for another got this and that council got that, it makes it more debate in your Lordships’ House. complicated. Some of the figures seem very unfair. If we understood how it was funded and more of what was behind that, maybe we would see a different picture. Committee adjourned at 6.59 pm.

WS 127 Written Statements[17 DECEMBER 2013] Written Statements WS 128

was paid to victims of crime, of which £25 million was Written Statements funded by criminals’ cash and assets recovered through confiscation orders. In addition, following a change to Tuesday 17 December 2013 the victim surcharge, HMCTS is able to report increased receipts for victim support with £11 million being Businesses: Regulation collected and paid in the year to support this work. Confiscation orders are one of the key mechanisms Statement available to the Government to deprive criminals of the proceeds of their crimes. The value of the order The Parliamentary Under-Secretary of State, Department imposed, which is often very high, is based on the for Business, Innovation and Skills (Viscount Younger criminal benefit attributed to the crime and may, of Leckie) (Con): My right honourable friend the Minister therefore, exceed the value of realisable assets that are of State for Business and Energy (Michael Fallon MP) known to the court at the time of imposition. Crucially, has made the following Statement. an outstanding order stops the criminal benefiting The Government is today publishing the Seventh from the proceeds of crime and ensures that, if the Statement of New Regulation. This statement reports assets are discovered in the future, they can be seized. on regulations within the scope of the one-in, two-out Confiscation orders comprise 70% (£1.4 billion rule which are expected to come into force between including interest) of total outstanding impositions. 1 January and 30 June 2014 and gives an account of All available actions and sanctions are taken to recover government regulation and deregulation to date. The this debt and bring it to account as expeditiously as statement shows that the sum total of government possible. However, around one half of this amount deregulation between January 2011 and December 2013 (excluding interest) cannot be collected as it includes will be to reduce the net annual cost to business by £109 million (8%) relating to individuals who are around £1.2 billion. deceased, deported or who cannot be located; £84 million The statement also reports on the Red Tape Challenge (6%) relating to orders which are being appealed and measures expected to come into force and progress on cannot be enforced while under appeal; and £136 million the targets, and EU measures which are implemented (10%) relating to orders where all the assets have been by UK regulations. assessed as hidden following the conclusion of financial forensic investigations. In addition there is a further In parallel, departments are each publishing a summary £339 million (24%) of interest accrued on confiscation of the regulations they intend to introduce. orders which are outside agreed payment terms. I am placing copies of the statement in the House Cracking down on those who do not pay is an Libraries. absolute priority.The agencies involved in the enforcement of confiscation orders, including the Ministry of Justice, Courts and Tribunals Service: Revenue the Home Office, the Serious Fraud Office and the Crown Prosecution Service, take every step to tackle Statement outstanding debt including the addition of interest and imprisonment for those who do not pay. In relation The Minister of State, Ministry of Justice (Lord to the outstanding fine debt, the sanctions include McNally) (LD): My honourable friend the Parliamentary taking deductions from offenders’ benefits or their Under-Secretary of State, Minister for Courts and earnings and seizing and selling their property and Legal Aid (Shailesh Vara, MP) has made the following goods. Those who do not pay can also be imprisoned. Written Ministerial Statement Criminals go to extraordinary lengths to hide the Her Majesty’s Courts and Tribunals Service (HMCTS) proceeds of their crimes by transferring funds abroad has prepared a trust statement providing an account and concealing it with friends and family, but we are of the collection of revenues which are due to be paid succeeding in recovering more money every year. The to HM Treasury. The statement includes the value of agencies responsible for enforcement are building better fines and confiscation orders imposed by the judiciary; relationships with overseas authorities and engage fixed penalties imposed by the police; the value of specialist forensic teams to track down hidden assets. collections; the balances paid over to third parties The 2012-13 trust statement analyses the confiscation including victims of crime, the Home Office and order debt value by lead agency to assist the users’ HM Treasury; and the balance of outstanding impositions. comprehension of the contribution made by agencies We welcome the Comptroller and Auditor General’s involved in the enforcement of confiscation orders. (C&AG) report on the trust statement, which recognises HMCTS recognises the importance of the the improvements in financial reporting made by HMCTS. recommendations made by the National Audit Office The C&AG has, for the first time and subject to two value for money study on confiscation orders and will specific exceptions, given an opinion that the trust work with our partner enforcement agencies to address statement presents a true and fair view of the transactions those recommendations and ensure that criminals continue and balances reported. to be deprived of the proceeds of crime. The statement shows that we have continued the Legislation to allow HMCTS to obtain data from year-on-year improvement in the levels of collection. HMRC and DWP to be used for the purposes of During 2012-13 more than £495 million has been setting fines and enforcing outstanding payment amounts collected from offenders, an increase of £11 million came into force on 11 December 2013 and will allow compared to 2011-12. Almost £59 million in compensation HMCTS to increase the use of the attachment of WS 129 Written Statements[LORDS] Written Statements WS 130 earnings sanction. HMCTS has also rolled out a the first national Disability Employment Conference programme to implement the use of direct debit payments in July 2013, at which the Prime Minister launched which can be used where outstanding fines are paid in our two-year Disability Confident campaign, working instalments. The direct debit payment process will be with employers to increase the employment of disabled easier for enforcement staff to administer than standing people, and now including a series of regional orders and should help to improve collection rates. events; HMCTS has recently published an OJEU notice the development of a new mental health and seeking a commercial partner to help increase collections, employment resource pack to improve the employment reduce enforcement costs and, importantly, ensure support that Jobcentre Plus provides for individuals more criminals pay. A new national system has been with mental health issues; and implemented to manage the collection of fixed penalty the development of the Health and Work Service, notices, with all of the police forces having transferred as recommended by the Sickness Absence Review. to the new platform by June 2013.The continuing The service is due to start in 2014 and will support improvement the agencies are making combined with individuals with health conditions or impairments our future plans will ensure that more criminals pay to stay in work. and that taxpayers get better value for money. However, we are determined to do more to enable disabled people and people with health conditions to Employment: Health and Disability get into, stay in and progress in work. This paper is the next important step in developing our approach and Statement widening our focus. To do this, we need to concentrate on the skills, capabilities and aspirations of all individuals, The Parliamentary Under-Secretary of State, Department offering the right support, early on, to those who need for Work and Pensions (Lord Freud) (Con): My honourable it. We need to focus on employers, so they are confident friend the Minister for Employment (Esther McVey and able to employ and retain disabled people and MP) has made the following Written Ministerial people with health conditions. We need to ensure that Statement. all disabled people and people with health conditions can make a smooth transition from education to work. Later today we will publish the Command Paper Cm8763 “The disability and health employment strategy: In this paper, we set out a range of proposals to the discussion so far”. further improve our employment support, both for disabled people and for people with health conditions There are 11.5 million working-age people in Great who do not consider themselves to be disabled. This Britain with a long-term health condition. More than will be followed next year by a further paper setting half (6.5 million) are classified as disabled under the out our delivery plan. Equality Act 2010, because they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Energy: Oil and Gas At any one time, some of these people will be Statement unable to work, and we will continue to provide them with financial support. However, many disabled people The Parliamentary Under-Secretary of State, Department and people with health conditions can and do work, of Energy and Climate Change (Baroness Verma) (Con): and the employment aspirations of too many people My right honourable friend the Minister of State for remain unfulfilled. A number of factors contribute to Energy, Department of Energy and Climate Change this loss of potential, for example: entrenched beliefs (Michael Fallon MP) has made the following Written about what individuals are capable of; an employment Ministerial Statement. support that does not always meet people’s individual needs; and an inflexible benefits system. I have today published a Regulatory Roadmap for Onshore Oil & Gas exploration and a Strategic This Government is already doing much to tackle Environmental Assessment, which represent important these issues, including: steps for onshore oil and gas exploration, including the implementation of many of the recommendations shale gas. in “Getting In, Staying In, Getting On” has focused The Government is keen to explore the potential resources on tailored, personalised support for for shale gas in the UK, which could bring major individuals, rather than on “one-size-fits-all”institutions benefit in terms of growth, jobs and energy security. and programmes; However, we must develop shale responsibly, both for our work to enable disabled people to fulfil their local communities and for the environment. These potential and have opportunities to play a full role documents will help ensure this and enable a sustainable in society through the Fulfilling Potential strategy and successful industry for the long term. series; First, the Regulatory Roadmap sets out the process the introduction of Universal Credit, which aims operators should follow when seeking to drill for to ensure work always pays; onshore oil and gas in the UK. The content is primarily the introduction of Personal Independence Payment, for unconventional oil and gas operations (specifically a new disability benefit designed to better reflect shale gas and coal bed methane developments), but today’s understanding of disability and deliver a many of the processes described will apply equally to benefit that is fairer, more transparent and sustainable; conventional operations. WS 131 Written Statements[17 DECEMBER 2013] Written Statements WS 132

The Roadmap is intended as a first point of reference, concerning the European single market for electronic so that operators, planners and the public can see the communications and to achieve a Connected Continent overall regulatory process. This will help operators in (First reading—EM13562/13 and 13555/13 + ADDs particular by making it clear what they need to do and 1-2). It asked Member States to indicate which of the when, while providing useful links to more detailed actions contained in the proposal they regard as priorities guidance. and whether it was appropriate to carry out such The Roadmap does not contain any new policy but actions at EU or Member State level. Commissioner sets out the current process in one place. It also reflects Kroes opened the debate by noting the difference in the regulatory differences between England, Scotland, pace between the Council and Parliament in discussing Wales and Northern Ireland. It focuses on the exploration this file and expressed concern that there had been and appraisal phases, rather than production and little progress in Council since the October European decommissioning. Council, compared to that of the European Parliament. The Roadmap can be viewed on the gov.uk website There then followed an extensive debate in which and will be kept up to date to reflect changes in all Member States intervened. All began their interventions regulation. by welcoming the overall objectives of the package in I have also today published for consultation an terms of completing the telecoms single market and Environmental Report on our proposals for further the associated growth opportunities. However, France, onshore oil and gas licensing in areas of Great Britain. Portugal, Czech Republic, Denmark and Sweden called for the prioritisation of other, more advanced, legislative The Report identifies, describes and evaluates the proposals over the Connected Continent package, in likely significant effects on the environment of DECC’s particular the proposals on electronic identification, proposals to invite applications for new licences, and broadband cost reduction and network and information of reasonable alternatives to that plan; and how these security. France, along with others, also forcefully effects can be reduced or offset. questioned the speed with which this proposal was This Report is a necessary part of the process of drawn together and called for the Commission to strategic environmental assessment (SEA) required by re-examine the rationale and evidence behind several EU law. parts of the package. The consultation will be open until 28 March 2014. There were mixed responses to the individual Once the consultation responses have been taken into components of the package. Many Member States, account I will issue a “Post-Adoption Statement” including the UK, France, Germany, Poland and Italy, which will summarise how the Government intends to did not want to see the Commission gaining any proceed in relation to the 14th onshore oil and gas further competency over spectrum management, especially licensing round. national auctions, although there was recognition The Environmental Report can be viewed on the that there were some gains to be made from closer gov.uk website. co-ordination between Member States. On the roaming proposal, many Member States supported the reduction of EU roaming charges, but noted that the current EU: Telecommunications Council proposal was too complex, unlikely to achieve its Statement desired effect and may have a negative impact on competition. Opinion was mixed regarding the net neutrality proposal. Spain and Hungary supported Lord Gardiner of Kimble (Con): My honourable the draft proposal, while UK and Latvia did not. friend the Minister for Culture, Communications and Similarly, Member States’ views on the consumer Creative Industries (Ed Vaizey MP) has made the protection elements of the package were also mixed. following Statement. They were supported by Spain, Portugal, Hungary, The Telecommunications Council took place in Luxembourg and UK, while Germany, Austria and Brussels on 5 December 2013; the Deputy Permanent Ireland were concerned that the current draft would Representative to the EU, Shan Morgan, represented erode their currently high level of domestic consumer the UK. protection. France added that the proposals did not The first two items were progress reports from add any value to their domestic regime and were the Presidency on the Proposal for a Directive of the opposed on this basis, while Malta and Luxembourg European Parliament and of the Council concerning were concerned about the effects of them on smaller measures to ensure a high level of network and electronic communications operators. information security across the Union (First reading— The second question considered the Conclusions of EM6342/13), followed by the Proposal for a Regulation the October European Council that covered several of the European Parliament and of the Council on aspects of the digital economy (eg cloud computing, measures to reduce the costs of deploying high-speed big data and digital platforms) that are currently either electronic communications networks (First reading— unregulated or rely on “soft” regulation; the Presidency EM7999/13); there were no major interventions on asked if any regulatory framework was required and either of these items. whether regulation should be at Member State or EU This was followed by the only substantive item, level. The major focus of this discussion was on big which was an “orientation debate” guided by a paper data and cloud computing. All Member States began and two questions from the Presidency.The first question by recognising the importance of these two areas and related to the Proposal for a Regulation of the European the need to make progress. However, responses about Parliament and of the Council laying down measures how to achieve this were mixed, with some calling for WS 133 Written Statements[LORDS] Written Statements WS 134 further regulation and others pressing for a light-touch The department looked at 555 regulations covering approach. Germany, Italy, Slovenia and Slovakia four areas: public health; quality of care and mental supported further work in this area, including the health; NHS; and professional standards. This builds development of specific European frameworks. However, on earlier work done to look at 255 regulations under Sweden and the UK called for a light-touch approach the Red Tape Challenge medicines theme. and did not support further regulation on cloud and big data. However, it was recognised that the use of We carefully considered the comments received through standards could help form any common framework. the Red Tape Challenge website, alongside an internal audit of departmental regulations, the results of which During summing-up, Commissioner Kroes stated have already been published. Using this information she saw the debate as a turning point. She suggested and running a rigorous challenge process we identified that Council supported an extensive examination of the healthy living and social care regulations that the Connected Continent proposal under the Greek could be abolished or improved. I am proud to announce Presidency, and that there was high-level consensus on the results of this process here. Of the 555 regulations the need for action on spectrum, net neutrality and considered, the department is proposing to abolish consumer protection, while acknowledging that roaming 128 regulations and improve 252 others. This means may be more difficult to reach agreement on. However, that 68% of the regulations under the healthy living she also called for further progress under the current and social care theme will either be abolished or Lithuanian Presidency. improved. The Presidency largely agreed with the Commission’s assessment, although felt that the views of Member The department is responsible for key areas of States on parts of the package were more strongly held public protection, and many of its regulations are and differed from those that the Commission suggested. therefore essential to protect patients and the public They would therefore hand this file over to the Greeks by ensuring essential standards are maintained. to begin detailed work on the file. However, in a Nevertheless, we have actively embraced the regulatory procedurally unusual move, Commissioner Kroes reform agenda. There are a number of proposals the challenged the Presidency’s conclusions, as she believed department is looking to take forward, including: that Member States were calling for work to begin simplifying a large number of professional standards under the Lithuanian Presidency.The Presidency disagreed regulations following the Law Commission’s with this view, which was supported by an intervention recommendation; from France. There then followed two items under AOB. There working with Department for Communities and were no major interventions on either of these items. Local Government to address the problem of The first was an update from the Presidency on the duplication of inspections between the Care Quality Proposal for a Regulation of the European Parliament Commission and local authorities through the Focus and of the Council on guidelines for trans-European on Enforcement review of Adult Care Homes; telecommunications networks and repealing Decision No 1336/97/EC (First reading—EM16006/11); the second updating the Nursery Milk regulations to make item was an update from the Presidency on the Proposal them fit for purpose to help effectively deliver a for a Regulation from the European Parliament and of scheme that is efficient, sustainable, and gives the Council on electronic identification and trust services better value for money; for electronic transactions in the internal market (First improving the operation of the Healthy Start scheme, Reading—EM10977/12). which provides vouchers for fruit and vegetables, Finally, the Greek delegation informed the Council milk and formula milk to low-income pregnant of their priorities for their forthcoming Presidency women and children under four. The department before Council adjourned until the next meeting in will work with retailers to explore and implement June 2014. practical ways to make the paper vouchers easier to handle by the end of 2015/16; implementing the recommendations to review the Health: Red Tape Challenge human tissue legislation, which will potentially Statement bring benefits to the regulated sectors through improving the efficiency and effectiveness of the regulators; and streamlining regulation; and The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My honourable friend revoking the regulations which ban the sale of HIV the Parliamentary Under-Secretary of State, Department home-testing kits, which is expected to benefit of Health (Jane Ellison) has made the following Written business significantly and have positive wider Ministerial Statement. benefits for the public. The department is taking forward work to implement this and other changes In November 2012, the department launched the identified through the Red Tape Challenge process healthy living and social care theme of the Red Tape by the end of this Parliament. Challenge. The department sought comments on regulations affecting business and civil society through However, we do not want to stop there. Some of the the Red Tape Challenge website and responses from a comments the department received through the Red range of different groups were received on a number Tape Challenge related to non-regulatory issues. For of areas. example, comments received about the deprivation of WS 135 Written Statements[17 DECEMBER 2013] Written Statements WS 136 liberty safeguards suggested that while the measures Huawei Cyber Security Evaluation Centre were important, the number and complexity of some of the forms made it difficult and time-consuming for Statement people to use them. In response the department plans to tackle this in 2014 by both reducing the existing number of forms and redesigning them so that they The Chancellor of the Duchy of Lancaster (Lord Hill are easier to use. Another non-regulatory improvement of Oareford) (Con): My right honourable friend the will be a reduction in the amount of unnecessary Prime Minister has made the following Statement. guidance issued by the Care Quality Commission when The Intelligence and Security Committee (ISC) they introduce new fundamental standards of care, reported in June 2013 on Foreign Investment in Critical saving people time in familiarising themselves with it. National Infrastructure. The ISC raised concerns about I am pleased with the outcomes of the healthy the Huawei Cyber Security Evaluation Centre (HCSEC) living and social care theme and the work that went and recommended that the National Security Adviser into identifying regulations the department can abolish undertake “a substantive review of the effectiveness of or improve. The department is committed to continue HCSEC as a matter of urgency”. to look at how it can minimise burdens on both The Government responded in July to the ISC business and healthcare professionals. The department report, agreeing that a review would be carried out. is currently looking at opportunities to reduce burdens This has now been completed and shared with the for those on the front line of healthcare and is engaging Chair of the ISC. An executive summary of the review with relevant organisations and health professionals has been published: copies of this have been placed in to progress this. the Libraries of both Houses. The Government’s main Details on the regulations the department proposes conclusion, which reflects discussion with the Chairman abolishing or improving have been placed in the Library. of the ISC, is that oversight of HCSEC should be Copies are available to honourable Members from the enhanced and that GCHQ should take a leading and Vote Office and to noble Lords from the Printed Paper directing role in its future senior appointments. Office. The details can also be seen at: www.redtapechallenge.cabinetoffice.gov.uk/home/ index/ Independent Commission for Aid Impact: Triennial Review Houses of Parliament: Restoration Statement and Renewal Statement Baroness Northover (LD): My right honourable friend the Secretary of State for International Development has made the following Statement. The Chairman of Committees (Lord Sewel): Following On 21 March 2013 I announced the commencement their consideration of the Pre-Feasibility Study on the of the Triennial Review of the Independent Commission Restoration and Renewal of the Palace of Westminster for Aid Impact (ICAI). I am grateful to ICAI for their in October 2012, the House of Commons Commission continuing valuable work and am now pleased to and the House of Lords House Committee agreed announce the completion of that review. that the next more detailed study should be carried out by an independent third party and that it should ICAI’s role is to provide independent scrutiny of focus on the costs and technical issues associated with UK aid spending in order to deliver value for money the remaining options. for British taxpayers and maximise the impact of aid. Its specific functions are to: The contract for an independent options appraisal (IOA) has now been awarded to a consortium led i) produce a wide range of independent, high-quality by Deloitte Real Estate and including AECOM and and accessible reports setting out evidence of the HOK. This follows a rigorous evaluation and selection impact and value for money of UK development process. Work on the study is expected to begin early efforts; in 2014. ii) work with and for Parliament to help hold the The Palace will require very significant renovation UK Government to account for its development in the years to come. The Commission and the House programme, and make information on this programme Committee recognised in 2012 that doing nothing is available to the public; and not an option. They accept their responsibilities as iii) produce appropriately targeted recommendations custodians of a great iconic building and the need to to be implemented and followed up by the UK ensure its future. Selection of a preferred way forward Government. is expected to occur during the course of the next The Triennial Review of ICAI concludes that the Parliament, not this one. functions performed by ICAI are still required, subject The contract for the IOA will set a maximum price to some refinements to promote clarity and maximise of £2,019,295 and a fixed price (which may be lower value for money. In particular, the review recommends but not higher) will be agreed two months into the that ICAI should also focus on in-depth thematic contract once the consultants have become familiar reviews addressing wider development issues, alongside with the extensive survey work already done on the retaining the ability to produce shorter reports on Palace. topics of particular interest to stakeholders, which WS 137 Written Statements[LORDS] Written Statements WS 138 may include the country level. The review further Pensions: Automatic Enrolment concludes that an Advisory NDPB continues to be the most effective way of delivering these services. Statement The review also looked at the governance arrangements for ICAI in line with guidance on good corporate The Parliamentary Under-Secretary of State, Department governance set out by the Cabinet Office and found for Work and Pensions (Lord Freud) (Con): My honourable that ICAI’s arrangements largely comply with this friend the Minister for Pensions (Steve Webb MP) has guidance. In the few areas where there is not full made the following Written Ministerial Statement. compliance, it makes some recommendations in this I am today announcing the proposed automatic respect, which will be implemented in full prior to the enrolment thresholds for next year. next ICAI contract period beginning May 2015. The It is intended to lay an Order before Parliament in review also makes suggestions regarding the role of the New Year which will include the following: the International Development Select Committee in ICAI’s work, given the unique position of ICAI as an £10,000 for the automatic enrolment earnings trigger; advisory NDPB that reports directly to Parliament. £5,772 for the lower limit of the qualifying earnings The final report of the Triennial Review of ICAI band; and will be made available on the gov.uk website and £41,865 for the upper limit of the qualifying earnings copies will be placed in the Libraries of both Houses band. of Parliament. I am also placing a copy of the analysis supporting the proposed revised thresholds in the House Library. NHS England: Funding These papers will also be available later today on the www.gov.uk website. Statement

The Parliamentary Under-Secretary of State, Department Presumption of Death Act 2013 of Health (Earl Howe) (Con): My right honourable Statement friend the Secretary of State for Health (Jeremy Hunt) has made the following Written Ministerial Statement. NHS England’s board has today agreed its Clinical The Minister of State, Ministry of Justice (Lord Commissioning Group planning guidance and allocations. McNally) (LD): My honourable friend the Parliamentary Final documents will be published on the NHS England Under-Secretary of State, Ministry of Justice (Shailesh website by Friday 20 December and copies will be Vara) has today made the following Written Ministerial placed in the Library. Statement. As we set out in the Mandate to NHS England, the On 20 June 2013 the then Parliamentary Under- NHS needs to change to meet the needs of an ageing Secretary of State at the Ministry of Justice, my population. This guidance will help commissioners honourable friend the Member for Maidstone and the develop plans for services that more closely address Weald (Helen Grant) announced she would make a the needs of local populations and deliver better further Statement regarding the timing of commencement integration of health and social care services. of the Presumption of Death Act 2013 (“the Act”) before the end of 2013 (Official Report, 20 June 2013; The planning guidance sets out the priorities for col. 39WS). commissioners. Commissioners are asked to plan for the next two years, with a specific emphasis on improving When she made her Statement in June regarding the health, reducing health inequalities and moving towards Act it was expected that the work on the rules of court, a parity of esteem for mental and physical health. regulations and associated procedures necessary to bring the Act fully into force would be completed in In order that such an important decision is considered time for commencement to take place in April 2014. objectively, free from party-political considerations, However, as she stated, this was not certain. In the the Health and Social Care Act 2012 made how health event, the necessary work has not yet been completed. funding is allocated between different areas of the The proposed commencement of the Act will therefore country a responsibility of NHS England. be delayed until the next available common commencement The NHS England board has today made decisions date, 1 October 2014. I will make a further announcement on how to distribute its budget so patients benefit. to confirm the actual commencement date of the Act This includes allocating funding for individual clinical in due course and in any event before the Summer commissioning groups. Recess. The Government has protected the overall health On the same date my honourable friend also announced budget and NHS England has today decided that that the Ministry of Justice intended to publish a every CCG in England will continue to benefit from at consultation paper on the possible creation of a status least stable real-terms funding for the next two years. of guardian of the property and affairs of missing persons Those areas with fastest-growing populations will benefit in 2013 (Official Report, 20 June 2013; col. 39WS). from more rapid growth in funding. Work on this paper is progressing and publication will By reflecting changes in population around the take place as soon as possible in 2014. I will make a country and better targeting where the pockets of further announcement in relation to the publication of deprivation are located, the NHS can offer the best the paper in due course and in any event before the services where patients need them most. Easter Recess. WS 139 Written Statements[17 DECEMBER 2013] Written Statements WS 140

Railways: Network Rail Network Rail to deliver the best possible railway for the benefit of the whole industry, its passengers and Statement the taxpayer. The Minister of State, Department for Transport (Baroness Kramer) (LD): My right honourable friend Sustainable and Secure Building Act 2004 the Secretary of State for Transport (Patrick McLoughlin) Statement has made the following Ministerial Statement: Today the Office for National Statistics announced that, following a review, Network Rail will be classified The Parliamentary Under-Secretary of State, Department as a central government body in the public sector. This for Communities and Local Government (Baroness Stowell is an independent statistical decision taken by the of Beeston) (Con): My honourable friend the Parliamentary Office for National Statistics in light of the European Under-Secretary of State for Communities and Local System of National Accounts 2010 (ESA10) manual Government (Stephen Williams) has made the following from Eurostat which comes into force across the EU Written Ministerial Statement. from 1 September 2014. I am pleased to announce that I am today laying The Government welcomes the ONS review and before Parliament the fourth report required under the has always been committed to the transparent reporting provisions of the Sustainable and Secure Buildings of public liabilities. The change in Network Rail’s Act 2004. classification will mean that the company’s net debt, The report considers the progress towards the currently some £30 billion, will appear on the sustainability of the building stock in England over Government’s balance sheet. The Office for Budget the preceding two years and Wales up until the end of Responsibility noted in its Economic and Fiscal Outlook 2011 when the setting of building regulations was published on 5 December that this will likely increase devolved to the Welsh Assembly. The Welsh Government Public Sector Net Debt by about 2% of GDP and will be publishing their own report for 2012. Public Sector Net Borrowing by 0.2% of GDP on The report covers changes made to building regulations average. The Government remains committed to its over the period and their expected impact, plans for plans to reduce the deficit and will continue to do so future legislation and proposals for the setting of by taking difficult decisions to cut public spending targets in relation to sustainable buildings. The report and prioritise investment in infrastructure to deliver a also covers changes in the energy and carbon efficiency stronger economy and fairer society.The new classification of the building stock, the extent to which buildings will be implemented from 1 September 2014 and will have their own facilities for generating energy, and the apply from April 2004. Until then Network Rail remains recycling and reuse of construction materials over the in the private sector. period. I am committed to ensuring that Network Rail This Government has, during the period of the maintains the operational flexibility to continue to report, continued to work to improve the energy efficiency deliver a safe, punctual rail network and increased of the housing stock, with the introduction of the capacity for our busy railways and that it is able to Green Deal and changes to Building Regulations, attract a high calibre of staff, while still providing most recently the strengthening of the requirements value for money and being accountable to Parliament. for new buildings in Part L (Conservation of Fuel and My department will agree appropriate accounting Power) of the Building Regulations. and governance adjustments for Network Rail to ensure The average energy efficiency rating for homes in it can continue to deliver world-class railway infrastructure England has continued to improve steadily during the when the company is reclassified for statistical purposes period of the report and carbon dioxide emissions on 1 September 2014. I have accordingly agreed a from the domestic sector are estimated to be 6 million Memorandum of Understanding with Network Rail tonnes lower in 2011 than 2009. that sets out how we will work together to develop and agree that framework. This Memorandum has today been published on my department’s website and copies Terrorist Asset-Freezing etc. Act 2010 have been placed in the Libraries of both Houses. Statement This Government remains committed to the railway. The ONS’s decision on the classification of Network Rail does not affect the planned improvement and The Commercial Secretary to the Treasury (Lord investment in the railways, including Network Rail’s Deighton) (Con): Mr David Anderson QC has completed £38 billion settlement for the planned running of and his third annual report as independent reviewer of investment in the railway in the five years from 2014. terrorist asset-freezing legislation. The report covers a This Government’s plans for HS2 and the rail franchising 12-month period of the operation of the Terrorist programme set out in March this year are unchanged. Asset-Freezing etc. Act 2010 and will be laid before The Office of Rail Regulation will remain the economic Parliament today. and safety regulator for the railway and the ONS’s The Government is grateful to Mr Anderson for decision will have no effect on rail fares, performance, his thorough report and will consider carefully the punctuality, timetables or safety. My department will recommendations he has made. The Government’s continue to consider how best to secure the benefits of response to this report will be placed in the Libraries private investment in rail infrastructure and work with of both Houses on or before 11 February 2014.

WA 169 Written Answers[17 DECEMBER 2013] Written Answers WA 170

The Parliamentary Under-Secretary of State for Written Answers Schools (Lord Nash) (Con): The Department for Education Tuesday 17 December 2013 employed 44 apprentices on 1 November 2013, 14 of whom worked within the National College for Teaching and Leadership (NCTL). We are unable to provide a Anguilla full age breakdown for data protection reasons. Questions Age No of apprentices within NCTL Asked by Lord Boateng Under 21 Less than 10 To ask Her Majesty’s Government what was the 21 – 25 Less than 10 purpose and what were the outcomes of the visits Over 25 Less than 5 by the officials of the Department for International Total 14 Development to Anguilla in 2012 and 2013. [HL3871] For comparison, as at May 2010 there were a total Baroness Northover (LD): DFID officials visited of 18 apprentices employed by the Department. Anguilla in 2012 and 2013 with colleagues from the Asked by Lord Adonis Foreign and Commonwealth Office. The visits were to discuss the economy and public finances with Anguillan To ask Her Majesty’s Government how many officials and the private sector. The visits have provided apprentices employed by the Office of the Children’s technical assistance to the Government of Anguilla in Commissioner on 1 November 2013 were (1) under economic and financial management. the age of 21, (2) aged between 21 and 25, and (3) Asked by Lord Boateng aged over 25. [HL3822] To ask Her Majesty’s Government what steps they have taken to support the government of Lord Nash: No apprentices have been employed by Anguilla’s implementation of the actions necessary the Office of the Children’s Commissioner since it was to be taken pursuant to the International Monetary established in 2004. Fund Staff Report for the 2011 Article IV Consultation Series: Country Report 12/8. [HL3872] Asked by Lord Adonis

The Senior Minister of State, Department for Communities To ask Her Majesty’s Government how many and Local Government & Foreign and Commonwealth apprentices employed by the National Offender Office (Baroness Warsi) (Con): Anguilla is a British Management Service on 1 November 2013 were (1) Overseas Territory with an elected government that under the age of 21, (2) aged between 21 and 25, has constitutional responsibility for economic management and (3) aged over 25. [HL3825] and public finances. The British and Anguilla Governments share a vision for the Territory as a vibrant and flourishing The Minister of State, Ministry of Justice (Lord community, proudly retaining aspects of British identity McNally) (LD): The Ministry of Justice is committed and generating opportunities for its people. In this to improving the quality and access to apprenticeships. spirit of partnership, the British and Anguilla Governments agreed a Framework for Fiscal Responsibility and The National Offender Management Service (NOMS) Development, which was passed into Anguillan law in currently employs one externally recruited apprentice. November 2013. This set out the Government of Anguilla’s For data protection reasons, NOMS is not able to give commitment to a balanced budget, borrowing guidelines any age information of this member of staff. and a medium term fiscal plan for the management of From 1 April 2013 to 1 November 2013, a total of public finances over the next five years. On 26 November, 370 existing NOMS staff enrolled onto an apprenticeship the 2013 Joint Ministerial Council brought together qualification as part of our on-going up-skilling UK Ministers and Overseas Territory leaders and agreed programme. an ambitious agenda to support economic diversification, Apprenticeship figures are collated for the Ministry jobs and economic growth in the Territories. In Anguilla, of Justice as a whole. From 1 April 2008 to 1 November the British Government is, among other things, supporting 2013, 3,430 existing Ministry staff have enrolled on an efforts to develop professional skills for the financial apprenticeship programme. Information on the age services and information and communications technology ranges requested for existing staff is not kept. sectors, vocational skills and commercial fisheries. To provide the full information requested would require analysing individual records for the members Apprenticeships of staff concerned and would incur disproportionate Questions costs Asked by Lord Adonis Asked by Lord Adonis To ask Her Majesty’s Government how many To ask Her Majesty’s Government how many apprentices employed by the National College for apprentices employed by the Defence Science and Teaching and Leadership on 1 November were (1) Technology Laboratory on 1 November were (1) under the age of 21, (2) aged between 21 and 25, under the age of 21, (2) aged between 21 and 25, and (3) aged over 25. [HL3767] and (3) aged over 25. [HL3989] WA 171 Written Answers[LORDS] Written Answers WA 172

The Parliamentary Under-Secretary of State, Ministry Lord Astor of Hever: As at 1 November 2013 the of Defence (Lord Astor of Hever) (Con): The number Defence Support Group had the following numbers of of apprentices employed by the Defence Science and apprentices in the requested age groups: Technology: 20 under the age of 21 years. Laboratory in each age range specified was as follows: 12 aged between 21 and 25 years. 19 aged over 25 years. Apprentices as at 1 November 2013 Number Asked by Baroness Sharp of Guildford Under 21 20 Age 21-25 11 To ask Her Majesty’s Government, in the most Over 25 2 recent year for which figures are available, how Total 33 many 18 year-olds in England were on apprenticeships; and what proportion of those started (1) before, Asked by Lord Adonis and (2) after, their 18th birthday. [HL4103] To ask Her Majesty’s Government how many apprentices employed by the Health and Safety Lord Ahmad of Wimbledon (Con): Information on Executive on 1 November were (1) under the age of Apprenticeship starts in England by age is published 21, (2) aged between 21 and 25, and (3) aged in a Supplementary Table to a Statistical First Release: over 25. [HL3990] http://www.thedataservice.org.uk/NR/rdonlyres/ 6D9AE2BF-CDB4-44C9-AB55-0EACF719BBBE/0/ Nov2013_Apprenticeship_Starts.xls The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): The equality and diversity table shows the number HSE employed the following apprentices by age group of 17 and 18 year old Apprenticeship starts in 2012/13, on 01 November 2013. based on their age at the start of the Apprenticeship programme. Age Number employed

1) Under the age of 21 1 Asil Nadir 2) aged between 21 and 25 9 Question 3) aged over 25 0 Asked by Lord Maginnis of Drumglass Total 10 10 To ask Her Majesty’s Government whether they, Asked by Lord Adonis or any of their agencies, are in possession of any documents relating to the 2012 trial of Asil Nadir To ask Her Majesty’s Government how many which were not made available during that trial; apprentices employed by the Highways Agency on and, if so, whether they will place copies of those 1 November were (1) under the age of 21, (2) aged documents in the Library of the House. [HL3870] between 21 and 25, and (3) aged over 25. [HL3991] The Advocate-General for Scotland (Lord Wallace The Minister of State, Department for Transport of Tankerness) (LD): After Mr Nadir’s trial concluded, (Baroness Kramer) (LD): Total number of Highways a small amount of additional material came to light. Agency apprentices at 1st November 2013 is17. None of it met the current test for disclosure in (1) Under 21 years 10 criminal cases, which concerns whether it assists the (2) 21 - 25 years 2 defence or undermines the prosecution. However, the (3) over 25 years 5 Common Law of disclosure applied to this case and the SFO has made appropriate post-trial disclosure Asked by Lord Adonis accordingly. To ask Her Majesty’s Government how many It would not be appropriate to by-pass the criminal apprentices employed by HM Passport Office on litigation procedures by making disclosure through 1 November were (1) under the age of 21, (2) aged the Library of the House. between 21 and 25, and (3) aged over 25. [HL3992] Broadcasting: Sensory Impairment The Parliamentary Under-Secretary of State, Home Question Office (Lord Taylor of Holbeach) (Con): As at 1 November Asked by Baroness Jones of Whitchurch 2013, Her Majesty’s Passport Office has not ever employed any apprentices. However they do intend to To ask Her Majesty’s Government what plans recruit apprentices jointly with the Home Office in the they have to improve the availability of access services future. to on-demand broadcasting content for people with Asked by Lord Adonis sensory loss. [HL3794] To ask Her Majesty’s Government how many Lord Gardiner of Kimble (Con): As noted in the apprentices employed by the Defence Support Group Government’s Connectivity, Content and Consumers: on 1 November were (1) under the age of 21, Britain’s digital platform for growth strategy paper (2) aged between 21 and 25, and (3) aged over 25. published in July, the Government has committed to [HL3993] work with Ofcom and The Authority for Television WA 173 Written Answers[17 DECEMBER 2013] Written Answers WA 174

On-Demand (ATVoD) over the next three years to The Minister of State, Department for Transport look at how the amount of Subtitles and Audio (Baroness Kramer) (LD): Car manufacturers’ official Description (AD) available via non- linear network fuel consumption figures are measured using a standard providers can be improved. Progress will be monitored test procedure set out in European Directives. via ATVOD’s annual survey of its members, that also Manufacturers are obliged to quote the figures from assess their efforts made on this issue. the official test in order to ensure that purchasers are The Minister for Communications will be writing able to compare vehicles on the same basis. Testing to Peter Johnson CEO of ATVoD to let them know must be overseen by an approval authority from one that he will be monitoring responses to the 2013 of the 28 EU Member States which ensures the accuracy ATVoD survey to review what progress is being made of the results according to the specified test procedure. to make online (non-linear) TV and Catch-Up and Although the official test results provide an indication On-Demand services more accessible to disabled and of the relative fuel economy of different vehicles it is older consumers. If it is clear that progress isn’t being recognised that they no longer represent average on made in three years’ time–a reasonable timeframe in the road fuel consumption. For this reason work is our view–we will consider legislation. well underway to develop a revised test which better reflects real driving conditions.

Building Stability Overseas Strategy Question Charities Asked by Baroness Kinnock of Holyhead Questions To ask Her Majesty’s Government what progress Asked by Lord Rooker they have made on the implementation of the Building To ask Her Majesty’s Government whether they Stability Overseas Strategy since 2011. [HL3926] intend to request the Charity Commission to produce a report on those charities which direct and oversee The Senior Minister of State, Department for Communities schemes run by trading companies with respect to and Local Government & Foreign and Commonwealth governance and the salaries paid to directors of Office (Baroness Warsi) (Con): Since the Strategy’s trading companies. [HL3972] launch we have improved our early warning analysis, To ask Her Majesty’s Government whether they to better anticipate, identify and respond to potential will request the Charity Commission to produce a risks and issues. We have enhanced the UK’s ability to list of the number of directors of trading companies provide rapid responses where those are needed. Within which are directed and overseen by charities who the Conflict Pool, implemented by the Foreign and are paid annually more than (1) £250,000, (2) £500,000, Commonwealth Office, the Department for International and (3) £750,000. [HL3974] Development (DfID) and the Ministry of Defence, we created an Early Action Facility of £20 million per To ask Her Majesty’s Government what assessment annum to provide a guaranteed, flexible funding reserve they have made of the process of registered charities for rapid responses. This has been used effectively in directing and overseeing schemes run by commercial Syria, Lebanon, Libya, Somalia, Mali and, most recently, companies, and whether they consider that process the Central African Republic. to be consistent with good corporate, financial and trusteeship governance. [HL3977] The National Security Council ensures we target our efforts, including our joint Conflict Resources, on the highest UK priorities. The Government’s commitment is reflected in the increasing size of the Lord Gardiner of Kimble (Con): There is no intention Conflict Resources settlement during this Spending to request a report on or make an assessment of Review Period. For financial year 2013-14 funding for charities which direct or oversee schemes run by trading the discretionary Conflict Pool is £229 million, compared companies. Charities are independent organisations with £209 million in financial year 2012-13. The Pool and their trustees are legally responsible for all aspects funds a wide range of activities through five geographical of their management and administration. The Charity and one thematic programme, working with local and Commission’s powers of intervention are reserved for regional institutions, international partners and non- cases of serious misconduct or mismanagement, but it governmental organisations. does publish guidance for charities on trading, and on identifying and managing conflicts of interest. The data requested on the directors of trading companies is not currently collected. Any trading company Cars: Fuel Consumption controlled by a charity would be included in the group Question accounts of the charity. Group accounts are prepared Asked by Lord Kennedy of Southwark where the charity’s and its subsidiary’s combined income exceeds £500,000. Disclosure of remuneration is provided To ask Her Majesty’s Government what rules in £10,000 bandings over £60,000 for all group employees. govern the regulation of miles per gallon claims by The filed accounts and trustees’ annual reports of all car manufacturers; whether they assess the accuracy registered charities with annual income of over £25,000 of such claims; and if so, what assessment they have are publicly available on the Charity Commission’s made. [HL4009] website. WA 175 Written Answers[LORDS] Written Answers WA 176

Asked by Lord Rooker Asked by Baroness Miller of Chilthorne Domer To ask Her Majesty’s Government whether they To ask Her Majesty’s Government what will request the Charity Commission to produce a preparations they have made for their chairmanship report showing the numbers of charity trustees who of the G24 group on human rights in Colombia to have served for more than (1) 10 years, (2) 20 years, support human rights agenda in general; and whether and (3) 30 years. [HL3973] those preparations included consideration of the implementation of Constitutional Court order 164 regarding the San Jose de Apartado Peace Community. Lord Gardiner of Kimble: The information required [HL3834] is not currently collated by the Charity Commission.

Baroness Warsi: Our Embassy has met six times Charity Commission with other G24 countries since it assumed the presidency Questions in February 2013. The G24 has also met with a variety of government agencies, national human rights groups Asked by Baroness Armstrong of Hill Top and communities, and visited the region of Cordobá to witness progress and the challenges for the government’s To ask Her Majesty’s Government which persons land restitution agenda. The group met with the Peace were shortlisted for the post of Chair of the Charity Community of San Jose de Apartado on 16 August, Commission when it was most recently filled. after which it raised the implementation of the four [HL3911] points in Constitutional Court order 164 with the Ministry of the Interior. Lord Gardiner of Kimble (Con): Applications were Asked by Baroness Miller of Chilthorne Domer made in confidence and it would not be appropriate to disclose the names of shortlisted candidates. To ask Her Majesty’s Government what briefings they have received to inform their chairmanship of Asked by Baroness Armstrong of Hill Top the G24 group on human rights in Colombia regarding recent reports of human rights abuses in the region To ask Her Majesty’s Government whether of the San Jose de Apartado Peace Community; the Minister for the Cabinet Office met any of the and whether those briefings have given any indication candidates for the post of Chair of the Charity that people under the age of 18 have been abducted Commission, and if so when, prior to the appointment or killed. [HL3835] of the successful candidate. [HL3912]

Lord Gardiner of Kimble The Minister for the Cabinet Baroness Warsi: Our Embassy has received regular Office, together with the Minister for Civil Society reports from the Peace Community of San Jose de and the independent Public Appointments Assessor Apartado regarding human rights abuses against their representing the Commissioner for Public Appointments members by armed groups, including the abduction of as chair of the selection panel, met the appointable six community members in November. In December, candidates on 18 July 2012. Embassy staff met with individuals living with the community who indicated that four minors and two other members of the community had been abducted. We understand that all six have now been released. Colombia Questions Asked by Baroness Miller of Chilthorne Domer Conflict, Stability and Security Fund Question To ask Her Majesty’s Government what are their priorities for their chairmanship of the G24 group, Asked by Baroness Kinnock of Holyhead constituted as a result of the London-Cartagena- Bogotá process in 2003 to further the Colombian To ask Her Majesty’s Government how the National peace processes. [HL3833] Security Council will decide on the strategic direction of the new Conflict, Stability and Security Fund. [HL3927] The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): The British Embassy in Lord Gardiner of Kimble (Con): In line with the Colombia became chair of the Human Rights sub-group practice of previous governments, information relating of the G24 in February 2013 for one year. Under the to the proceedings of Cabinet Committees, including British presidency the group’s priorities have been to what issues were discussed, is generally not disclosed support the creation of a national human rights policy, as to do so could harm the frankness and candour of to accompany the Guarantees Working Group which internal discussion. However, we can confirm that the aims to provide security for human rights defenders, NSC will determine the strategic direction of the new and to support dialogue between civil society and the Conflict Stability and Security Fund on an annual government on human rights issues. basis. WA 177 Written Answers[17 DECEMBER 2013] Written Answers WA 178

Coram Foundation and Foundling Museum Cyprus Question Question Asked by Lord Myners Asked by Lord Maginnis of Drumglass To ask Her Majesty’s Government, further to To ask Her Majesty’s Government what assessment the Written Answer by Lord Wallace of Tankerness they have made, as a guarantor power under the on 2 December in relation to the Foundling Museum 1960 Treaty of Guarantee, of the action proposed (WA21), whether they consider the recommendations to be taken by the government of Cyprus in relation put forward by the Charity Commission to have to the work of the Immovable Properties Commission; been adequately addressed; and, if not, whether the and what steps they intend to take to ensure future Attorney General intends to take action against protection of human rights through that procedure. Coram and its trustees. [HL4012] [HL3868] The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): The Coram Foundation and the The Senior Minister of State, Department for Communities Foundling Museum are in on-going discussions with and Local Government & Foreign and Commonwealth each other about necessary changes to the governance Office (Baroness Warsi) (Con): We have made no such arrangements which may now be required as a result assessment of the recent proposals. The European of the Charity Commission’s recommendations. The Court of Human Rights ruled in March 2010 that the Commission is monitoring those discussions. The Attorney Immovable Property Commission established in the General expects that both charities and the Commission north provided an effective remedy for local property will seek his confirmation that he does not object to issues related to the Cyprus problem. Property remains any proposed final disposal of the matter so that they one of the most complex and sensitive aspects of the may be reassured he will not seek to commence any Cyprus problem and we believe it can best be addressed proceedings in his own name. as part of a comprehensive settlement that protects the interests of both communities. We continue to support Courts: Closures the two leaders in their attempts to achieve this. Question Asked by Lord Beecham Detention Centres: Sexual Abuse To ask Her Majesty’s Government what revenue Question savings have accrued as a result of the closure of Asked by Baroness Stern magistrates’ courts and county courts since the 2010 review; and what capital receipts have been To ask Her Majesty’s Government whether they engendered by the sale of such buildings. [HL3830] are conducting any inquiries in relation to allegations of sexual abuse at Medomsley Detention Centre; The Minister of State, Ministry of Justice (Lord and, if so, when they expect to report. [HL3509] McNally) (LD): The gross accumulated resource savings accrued from the closure of magistrates’ and county Lord Ahmad of Wimbledon (Con): There is currently courts since the start of the 2010 review (the Court an ongoing police investigation being undertaken by Estates Reform Programme) to 30 September 2013 is Durham Constabulary into the allegations of sexual £31.3m. The programme anticipates savings of £97.2m abuse at Medomsley Detention Centre. over the Spending Review period. The gross capital receipts produced from the sale of No other investigation is currently being carried the buildings as at 5 December 2013 is £19.8m. Gross out. capital receipt does not include deductions for the cost of sale. EU: Migration Question Crown Immunity Question Asked by Lord Stoddart of Swindon Asked by Lord Berkeley To ask Her Majesty’s Government what assessment To ask Her Majesty’s Government what assessment they have made of the European Commission’s they have made as to whether or not the Duke of proposal to make payments of ¤6,000 to European Cornwall and the Duchy of Cornwall are entitled Union member states for each United Nations- to Crown Immunity. [HL4003] registered refugee whom they agree to resettle. [HL4019] Lord Gardiner of Kimble (Con): Guidance regarding the application of Crown immunity is available from The Parliamentary Under-Secretary of State, Home the Office of the Parliamentary Counsel via the below Office (Lord Taylor of Holbeach) (Con): Since 2008 link and I have placed a copy in the library of the the UK Gateway Protection programme has been co- house. financed by the European Refugee Fund (ERF) at https://www.gov.uk/government/uploads/system/ ¤4,000 per person for specific categories of refugees uploads/attachment_data/file/193143/ sponsored by the United Nations High Commissioner Crown_Application_pamphlet_12-03-13.pdf for Refugees (UNHCR). WA 179 Written Answers[LORDS] Written Answers WA 180

From 2014 a new funding stream called the Asylum executive team, including the Permanent Secretary and Migration Fund (AMF) will replace the European and form part of the performance pack, submitted to Refugee Fund. It is anticipated Member States will Secretary of State and ministers, for the bi-monthly receive either ¤6,000 or ¤10,000 per UNHCR sponsored Departmental Board meetings. refugee resettled. These amounts will be used for The Government Equalities Office is part of the planning purposes. Department and does not produce separate reports on its financial or business performance. First World War: Commemoration Asked by Lord Mendelsohn Question To ask Her Majesty’s Government whether the Asked by Lord Rogan Ministry of Defence produces monthly management information reports including indicators of To ask Her Majesty’s Government, further to performance against financial and other targets; the Written Answer by Lord Gardiner of Kimble and, if so, whether those reports are submitted to a on 26 November (WA 263), whether they intend to Minister, the Permanent Secretary, or to another provide any funding to the Imperial War Museum official. [HL3953] as part of their scheme to commemorate the centenary of the outbreak of the First World War in addition to the £5 million they have committed towards The Parliamentary Under-Secretary of State, Ministry the costs of Imperial War Museum London’s of Defence (Lord Astor of Hever) (Con): The Ministry refurbishment of its First World War Galleries. of Defence Permanent Secretary provides a monthly [HL3712] management information report for the Defence Board chaired by the Secretary of State for Defence. Lord Gardiner of Kimble (Con): The Government Asked by Lord Mendelsohn currently has no plans to provide additional funding for the Imperial War Museum’s First World War centenary To ask Her Majesty’s Government whether the activity. Department for Education produces monthly management information reports including indicators of performance against financial and other targets; Government Departments: Management and, if so, whether those reports are submitted to a Information Reports Minister, the Permanent Secretary, or to another Questions official. [HL3960] Asked by Lord Mendelsohn The Parliamentary Under-Secretary of State for Schools To ask Her Majesty’s Government whether the (Lord Nash) (Con): Monthly management information Cabinet Office produces monthly management on delivery of the Department for Education’s key information reports including indicators of reforms is produced for the Performance Committee, performance against financial and other targets; a sub-committee of the Department for Education and, if so, whether those reports are submitted to a Board. Monthly management information on finance, Minister, the Permanent Secretary, or to another human resources and department of state business is official. [HL3949] produced for the Management Committee, a sub- committee of the Department for Education Board. Lord Gardiner of Kimble (Con): The Cabinet Office The Department uses a range of indicators to monitor prepares management information reports on its own progress. performance on a monthly basis. They are used by the The membership of both the Performance Committee Cabinet Office Board, which is chaired by the Minister and Management Committee includes the Permanent for the Cabinet Office, and the Executive Management Secretary, Non-Executive Board Members, Directors Committee, which is chaired by the Permanent Secretary General and Directors of Strategy, Human Resources for the Cabinet Office. and Finance. Asked by Lord Mendelsohn Asked by Lord Mendelsohn To ask Her Majesty’s Government whether the To ask Her Majesty’s Government whether the Department for Culture, Media and Sport produces Department for Energy and Climate Change produces monthly management information reports including monthly management information reports including indicators of performance against financial and indicators of performance against financial and other targets; and, if so, whether those reports are other targets; and, if so, whether those reports are submitted to a Minister, the Permanent Secretary, submitted to a Minister, the Permanent Secretary, or to another official. [HL3952] or to another official. [HL3961]

Lord Gardiner of Kimble: The Department produces The Parliamentary Under-Secretary of State, Department monthly management information reports on financial of Energy and Climate Change (Baroness Verma) (Con): and corporate performance, including performance DECC has a range of mechanisms for managing against financial and other targets where appropriate. performance and reporting progress to Ministers and Financial performance reports are submitted to the the Permanent Secretary. These include: WA 181 Written Answers[17 DECEMBER 2013] Written Answers WA 182

a monthly performance report to our Executive The Minister of State, Ministry of Justice (Lord Committee chaired by our Permanent Secretary; McNally) (LD): Monthly management information is a quarterly performance report to our Departmental produced by the Ministry of Justice (MoJ). The Executive Board chaired by the Secretary of State; Committee (ExCo), which comprises all Directors General; the Chief Executives of NOMS, HMCTS a business plan quarterly data summary (QDS) to and LAA; and is chaired by the Permanent Secretary, the Cabinet Office commissioned by the Minister reviews the MoJ Performance Dashboard monthly. of State; and This contains performance information on MoJ overall a quarterly report to the Major Project Authority and each of the Department’s agencies in relation to for each of our major programmes in the Government service delivery, finance and efficiency, people and Major Project Portfolio capability, reform and reputation. In addition ExCo Additionally, Ministers and the Permanent Secretary reviews the Transforming Justice Portfolio Status Report regularly meet with individual project teams to discuss on a monthly basis. This sets out progress against performance. milestones, issues and risks on the Department’s Ministerial priority programmes and other major Asked by Lord Mendelsohn programmes included in the Government Major Projects To ask Her Majesty’s Government whether the Portfolio. Government Equalities Office produces monthly The Departmental Board (comprising Ministers, management information reports including indicators ExCo and MoJ Non-Executives from outside of performance against financial and other targets; Government, and chaired by the Secretary of State) and, if so, whether those reports are submitted to a which meets six-weekly also receives the Performance Minister, the Permanent Secretary, or to another Dashboard and Portfolio pack. official. [HL3964] Asked by Lord Mendelsohn To ask Her Majesty’s Government whether the Northern Ireland Office produces monthly Lord Gardiner of Kimble: The Department for Culture, management information reports including indicators Media & Sport produces monthly management of performance against financial and other targets; information reports on financial and corporate and, if so, whether those reports are submitted to a performance, including performance against financial Minister, the Permanent Secretary, or to another and other targets where appropriate. Financial official. [HL3997] performance reports are submitted to the executive team, including the Permanent Secretary and form part of the performance pack, submitted to Secretary The Parliamentary Under-Secretary of State, Wales of State and ministers, for the bi-monthly Departmental Office (Baroness Randerson) (LD): Management Board meetings. information reports, including indicators of performance against financial and other targets, are a standing The Government Equalities Office is part of the agenda item at the Northern Ireland Office’s monthly Department and does not produce separate reports on management board meetings. Regular updates on the its financial or business performance. Department’s performance are provided to Ministers. Asked by Lord Mendelsohn Asked by Lord Mendelsohn To ask Her Majesty’s Government whether the To ask Her Majesty’s Government whether the Home Office produces monthly management Department for Transport produces monthly information reports including indicators of management information reports including indicators performance against financial and other targets; of performance against financial and other targets; and, if so, whether those reports are submitted to a and, if so, whether those reports are submitted to a Minister, the Permanent Secretary, or to another Minister, the Permanent Secretary, or to another official. [HL3994] official. [HL3999]

The Minister of State, Department for Transport The Parliamentary Under-Secretary of State, Home (Baroness Kramer) (LD): The Department for Transport Office (Lord Taylor of Holbeach) (Con): The Home produces a monthly management information pack Office produces a variety of management information that contains indicators of performance against financial reports which are seen by Ministers, the Permanent and other targets. Secretary and other officials. The pack is reviewed by the Executive Committee, chaired by the Permanent Secretary, on a monthly Asked by Lord Mendelsohn basis. Membership includes Directors General, the To ask Her Majesty’s Government whether the General Counsel, the Director of Communications Ministry of Justice produces monthly management and the Director of Human Resources. information reports including indicators of On a bi-monthly basis, the report is sent to the performance against financial and other targets; Executive Non-Executive Meeting (ENEM), also chaired and, if so, whether those reports are submitted to a by the Permanent Secretary. Membership consists of Minister, the Permanent Secretary, or to another the Directors General and the Non Executive Board official. [HL3996] Members. WA 183 Written Answers[LORDS] Written Answers WA 184

On a bi-monthly and alternating basis with the Homeless Families ENEM meeting, the report is sent to the DfT Board, Question chaired by the Secretary of State. Members comprise all Ministers, Permanent Secretary, Directors General Asked by Baroness King of Bow and the non-executives. To ask Her Majesty’s Government, further to Asked by Lord Mendelsohn the Written Answer by Baroness Stowell of Beeston on 22 October (WA 159–160), whether they took To ask Her Majesty’s Government whether the account of any potential savings to the public purse Wales Office produces monthly management before rejecting the London Borough of Tower information reports including indicators of Hamlets’ bid for “Gold Standard” funding to reduce performance against financial and other targets; the long-term use of bed and breakfast accommodation and, if so, whether those reports are submitted to a for homeless families. [HL3984] Minister, the Permanent Secretary, or another official. [HL4031] The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell Baroness Randerson: Management information reports, of Beeston) (Con): As I explained in my earlier answer, including indicators of performance against financial the bid from the London Borough of Tower Hamlets and other targets, are regularly reviewed by the Wales was rejected following the initial assessment of compliance Office Director and the Senior Management Team. with the overall objectives set out in the Government’s These reports are also a standing agenda item at the prospectus for the award of funding. The bid did not Wales Office’s bi-monthly management committee proceed to a subsequent assessment against the published meetings. Regular updates on the Department’s criteria, including value for money. performance are provided to Ministers by the Wales Office Director. Human Rights Government Departments: Secondments Question Question Asked by Lord Stoddart of Swindon Asked by Lord Pearson of Rannoch To ask Her Majesty’s Government what assessment they have made of whether litigants from the United To ask Her Majesty’s Government how many Kingdom would have the right to bring cases before British nationals, at what level of seniority, are the European Court of Human Rights through the currently on secondment to the World Trade institutions of the European Union in the event of Organisation from (1) the Department for Business, the United Kingdom withdrawing from the European Innovation and Skills, and (2) the Foreign and Convention on Human Rights. [HL4020] Commonwealth Office. [HL3882] The Minister of State, Ministry of Justice (Lord The Senior Minister of State, Department for Communities McNally) (LD): The Government has agreed in the and Local Government & Foreign and Commonwealth context of the Coalition Agreement that the obligations Office (Baroness Warsi) (Con): Neither the Department under the European Convention on Human Rights for Business, Innovation and Skills nor the Foreign will continue to be enshrined in British Law. While and Commonwealth Office currently has any member political parties have expressed views on policy directions of staff on secondment to the World Trade Organisation. they may wish to consider in the future, the Coalition Agreement makes it clear there will be no major changes to the human rights framework before the Grenada election. Question Individuals may petition the European Court of Asked by Baroness Kinnock of Holyhead Human Rights in respect of any alleged violation of their rights under the European Convention on Human To ask Her Majesty’s Government whether they Rights committed by a party to the Convention. The plan to discuss with the Pilot Programme for Climate European Union is not currently a party to the Resilience the possibility of ending loan disbursements Convention, although its accession to the Convention to Grenada and changing the United Kingdom is currently under negotiation in line with the obligation contribution to a grant, and changing the loans in Article 6 of the Treaty on European Union. into grant disbursements. [HL3839]

Baroness Northover (LD): Grenada is currently Human Trafficking implementing the funding allocated to it by the Pilot Question Programme for Climate Resilience (PPCR). The PPCR Asked by The Lord Bishop of Derby is a multilateral fund governed by a sub-committee of which the UK is one member (out of thirteen, including To ask Her Majesty’s Government how many six contributor country representatives). For these reasons people were arrested, prosecuted and convicted for it is not possible for the UK unilaterally to replace the human trafficking-related offences in 2009, 2010, type of finance Grenada receives. 2011 and 2012. [HL3443] WA 185 Written Answers[17 DECEMBER 2013] Written Answers WA 186

The Advocate-General for Scotland (Lord Wallace Table2-Non-European Economic Area National Partner Further of Tankerness) (LD): Information on the number of Leave arrests made by the police for human trafficking offences Struck is not held centrally and could only be obtained at a out/ disproportionate cost. Year Successful Unsuccessful abandoned Total Crown Prosecution Service data is available through Grand 326 280 18 624 the Case Management System (CMS) and associated Total Management Information System (MIS). The CPS Notes: collects data to assist in the effective management of 1. All figures quoted have been derived from management its prosecution functions. The CPS does not collect information and are therefore provisional and subject to change. data which constitute official statistics as defined in This information has not been quality assured under National the Statistics and Registration Service Act 2007. Official Statistics protocols. criminal justice statistics are published by the Office 2. The data relate to First Tier Appeal Outcomes only. 3. Data relates to partners and spouses of non-EEA Nationals for National Statistics (ONS). and The CPS does however maintain a central record of 4. Withdrawn appeals are listed separately in table 1 as overseas the number of cases flagged as involving human trafficking appeals data is recorded in less detail than in country data. In where there have been prosecutions, including convictions, Table 2, the number of successful appeals includes those Allowed by way of a monitoring flag, introduced in April 2010. and Withdrawn by the Home Office; the number of unsuccessful appeals includes those Dismissed and Withdrawn by the The flag is applied at the onset of a case; and remains appellant; and the number dropped refers to those Struck Out in place even if the charges are subsequently amended and Abandoned. or dropped. The number of human trafficking flagged prosecutions and convictions for the last three calendar years for Immigration: Holding Facilities which data is available, is as follows; Question

Convictions Unsuccessful TOTAL Asked by Lord Avebury To ask Her Majesty’s Government what 2010 43 70.5% 18 29.5% 61 improvements have been made to the short-term 2011 98 67.1% 48 32.9% 146 holding facilities at Heathrow Airport since they 2012 103 69.6% 45 30.4% 148 were the subject of critical reports by the Independent These figures should be used as an indicative guide Monitoring Board; and when they now expect the only for the reasons set out above. deficiencies noted by the Board to be remedied. [HL3778] Immigration Question The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): The Heathrow Asked by Lord Roberts of Llandudno Independent Monitoring Board (IMB) published their To ask Her Majesty’s Government what were the annual report on 10 June 2013. total number of (1) successful, (2) unsuccessful, The provision of accommodation facilities at ports and (3) dropped appeals against refusals of non- of entry are provided by the port operator, at Heathrow European Economic Area spouse entry clearance Airport this is Heathrow Airport Limited (HAL). and further leave applications lodged in (a) 2011, The Home Office has been working very closely and (b) 2012. [HL3760] with HAL to progress accommodation improvements to the short term holding facilities at Heathrow Airport. The Parliamentary Under-Secretary of State, Home Some improvements including re-decoration have Office (Lord Taylor of Holbeach) (Con): The requested already been implemented since the publication of the figures are shown in the following tables: Independent Monitoring Board’s Annual Report. Border Force and HAL have agreed and signed off a scope of Table 1 — Non-European Economic Area National Partner Entry works that covers all the recommendations of the Clearance IMB report and more. Appeals outcome This includes expansion of the family room in Year Successful Unsuccessful Withdrawn Terminal 2 and Terminal 5; provision of showers and a toilet lobby in Terminal 5; re-configuration of the 2011 3,705 2,303 436 family accommodation at Lima 23; and a complete 2012 2,422 1,739 437 re-build of the holding room accommodation in Grand Total 6,127 4,042 873 Terminal 3 and Terminal 4. HAL have produced a detailed project plan and the Table 2 - Non-European Economic Area National Partner Further Leave earliest that the works will be completed is December Struck 2014. This is primarily because of the high level of out/ costs associated with the works and that the funds do Year Successful Unsuccessful abandoned Total not become available to HAL until 1st April 2014 (new regulatory finance period). The works at Terminal 2 2011 181 176 10 367 will be complete in time for opening of the terminal in 2012 145 104 8 257 June 2014. WA 187 Written Answers[LORDS] Written Answers WA 188

HAL, Border Force and the Home Office are currently rebuilding the capacity and competitiveness of UK in the detailed design stage with HAL due to go to supply chains. Promotion of import substitution does tender for a contractor to carry out the works in not therefore form a part of our economic strategy. March 2014. The measures we have taken to restore the economy to health are providing the right framework for companies to grow and be competitive in global markets and we Imports are now seeing signs of a return in business confidence Question and improved business performance. Asked by Lord Empey Intestacy To ask Her Majesty’s Government whether they Question have any plans to promote import substitution in the United Kingdom. [HL3916] Asked by Lord Beecham To ask Her Majesty’s Government how much The Minister of State, Department for Business, the Crown has received in each of the last five years Innovation and Skills & Foreign and Commonwealth by way of the operation of the intestacy rules in Office (Lord Livingston of Parkhead) (Con): The Government cases where no family member was entitled to the is committed to free, fair and open markets. The Trade estate. [HL3915] and Investment White Paper, published in 2011 states that, “access to imports improves the competitiveness The Advocate-General for Scotland (Lord Wallace of UK companies and spurs innovation”. In addition, of Tankerness) (LD): The information requested is this Government is committed to strengthening and contained in the following table.

Cash Account 2012-2013 2011-2012 2010-2011 2009-2010 2008-2009

Receipts (Income) f. 18,252,039.91 34,505,430.97 16,199,586.26 21,388,035.49 17,852,488.64 Payments (Expenditure) £ 16,969,811,76 18,554,695.99 17,502,280.28 10,736,238.23 8,554,627.51 Running Costs £ 1,901,748.93 1,830,332.86 2,011,422.69 2,008,901.66 1,856,675.50 Net Receipt -619,520.78 14,120,402.12 -3,314,116.71 8,642,895.60 7,441,185.63

The estates of those who die without a valid Will or ensure that all Jobcentre Plus staff are aware of the known entitled kin is called Bona Vacantia (Latin for policy set out in that Written Answer that claimants ownerless property). This passes to the Crown under with certain medical conditions are allowed to use the intestacy rules and is collected by the Crown’s toilet facilities in Jobcentres, subject to the constraints Nominee, currently the Treasury Solicitor, and passed in certain locations caused by the layout of the to the Consolidated Fund. An estate can be claimed building and keeping people safe. [HL4124] by entitled kin for up to 12 years (represented in the “Payments (Expenditure)” category above). The Parliamentary Under-Secretary of State, Department The figures provided have been drawn from the for Work and Pensions (Lord Freud) (Con): It is standard Crown Nominee’s published accounts and adjusted to practice to leave this sort of issue to the discretion of provide the data requested. local advisers and managers. I have asked that this be Since 2010 the amount of money paid out to entitled reaffirmed with local office managers. kin has increased significantly, resulting in a negative net income figure for years 2010-11 and 2012-13. This is mainly due to the publication of unclaimed historic Migration estates going back to 1997; but is also partly due to an Question increase in public awareness following independent Asked by The Earl of Sandwich newspaper and television coverage of bona vacantia work. The historic work will slowly reduce over the To ask Her Majesty’s Government what assessment next 2 or 3 years, as a result of changes in practices, they have made of the analysis by the Institute of resulting in an increase net income to the Crown. Public Policy Research in its paper International The Treasury Solicitor’s relevant running costs have students and net migration to the UK regarding the been apportioned. impact of their immigration policies on the number of international students coming to the United Kingdom. [HL3987] Jobcentre Plus: Toilets Question The Parliamentary Under-Secretary of State, Home Asked by Baroness Thomas of Winchester Office (Lord Taylor of Holbeach) (Con): The Government has made no official assessment of the Institute of To ask Her Majesty’s Government, further to Public Policy Research (IPPR’s) report, which was the Written Answer by Lord Freud on 26 November published in April 2012. Changing the way we measure (WA 266–7), what action they propose to take to migration would not make any difference to our student WA 189 Written Answers[17 DECEMBER 2013] Written Answers WA 190 migration policy. The UK has a great offer for National Infrastructure Plan international students. We have introduced some basic Questions minimum standards for colleges and students to tackle abuse, while ensuring the UK remains a highly attractive Asked by Lord Berkeley place to study. To ask Her Majesty’s Government on what evidence Those with the right qualifications, sufficient funds they base the statement on page 16 of the National and a good level of English can study here, with no Infrastructure Plan 2013 that road traffic growth annual limit on numbers. The latest statistics published might increase by 43 per cent by 2040; what is the by the Office for National Statistics (ONS’) show there comparable estimated increase in rail passenger were 216,895 study visas (excluding student visitors) and freight traffic; and what changes in the carbon issued in the year ending September 2013, a rise of emissions of transport would result from those 3%, and this figure includes a 7% increase for the projections. [HL3932] university sector. Students will continue to count in the ONS’s net The Minister of State, Department for Transport migration figures because this is the international standard (Baroness Kramer) (LD): The evidence behind the approach as set out by the UN, and adopted by other projection of 43% growth in road traffic from 2010 to countries in broadly the same way. Students who stay 2040 is set out in ‘Road Transport Forecasts 2013’, for more than 12 months are migrants. Net migration which is available at: measures the difference between the number of people coming the UK and the number leaving, so if students https://www.gov.uk/government/uploads/system/ return home after their studies, their impact on long-term uploads/attachment_data/file/260700/road- net migration will be minimal. transport-forecasts-2013-extended-version.pdf The ONS has recently improved its methodology to The first chapter of this document explains that make it easier to identify students in the emigration this growth (within a range of 23%-66%) is primarily flows to give a more accurate measure of the contribution driven by population growth (20%), rising incomes of students to overall net migration. (66%), and falling motoring costs (24% for cars). Chapter five reports that road traffic carbon dioxide emissions are projected to fall by 15% over the same time period. Ministry of Defence: Police Rail passenger and freight use growth is provided in Question the National Networks: National Policy Statement, which is available at: Asked by Lord Ponsonby of Shulbrede https://www.gov.uk/government/uploads/system/ To ask Her Majesty’s Government, further to uploads/attachment_data/file/263720/consultation- the Written Answer by Lord Taylor of Holbeach on document-draft-national-policy-statement.pdf 4 December (WA 54), what are the daily rates of Table 2.3 highlights that rail passenger miles in pay for lay members of the police disciplinary panel Great Britain is forecast to grow 36%-46% between 2011 for the Ministry of Defence Police. [HL3943] and 2030. Rail freight figures are given in table 2.4 which states that freight was 23 billion tonne kilometres (btkm) in 2011 and is forecast to grow to 44btkm by The Parliamentary Under-Secretary of State, Ministry 2033. of Defence (Lord Astor of Hever) (Con): The daily rate Asked by Lord Berkeley of pay for independent members of Ministry of Defence Police misconduct panels is £211.50. To ask Her Majesty’s Government why there is no mention of investment for cycling infrastructure in the National Infrastructure Plan 2013; and what is their policy in relation to the promotion of Mohammed Ahmed Mohamed cycling. [HL3934] Question Asked by Lord Laird Baroness Kramer: The Government recognises that within large programmes of investment, there are certain To ask Her Majesty’s Government, further to key projects which contribute particularly towards the the Written Answer by Lord Taylor of Holbeach on overall strategic objectives, carry particular risks in 28 November (WA294), what citizenship Mohammed terms of the scale of overall capital investment or Ahmed Mohamed previously possessed; and whether complexity, or pioneer new approaches to infrastructure he is still a national of that state. [HL4054] delivery, with potential impacts on the wider investment programme or the sector as a whole. Each of the Top 40 priority investments within the National Infrastructure The Parliamentary Under-Secretary of State, Home Plan has been selected because it makes a crucial Office (Lord Taylor of Holbeach) (Con): Mohammed contribution to the achievement of the government’s Ahmed Mohamed previously held Somali nationality strategic objectives for that sector. which, under Somali nationality law, he automatically The Government continues to be committed to lost in 1999 when he was naturalised as a British making improvements for cycling. This is demonstrated citizen. Mohamed is, therefore, a mono British national. through the cycling ambition programme (£94m), focusing WA 191 Written Answers[LORDS] Written Answers WA 192 entirely on delivering improved infrastructure for cycling. Baroness Warsi: The British Ambassador in Pyongyang The Local Sustainable Transport Fund (£600m), of has not specifically raised these issues, but do regularly which around 98% of projects include a cycling element raise our concerns about human rights violations in (and features in the National Infrastructure Plan along North Korea, including concerns about the use of with the Local Growth Fund). The Cycle Safety and political prison camps and executions. Linking Communities programmes (£65m) are delivering Most recently, on 25 November 2013, a visiting better layout and design for roads at 81 locations, and delegation from the North Korean Ministry of Foreign enhanced cycle parking, cycling and walking links to Affairs met Foreign and Commonwealth Office officials. communities respectively. During this meeting, we reiterated our concerns about the use of the death penalty and political prison camps, and encouraged North Korea to participate Non-governmental Bodies meaningfully in its Universal Periodic Review process Question and engage with the UN Commission of Inquiry. We Asked by Baroness Armstrong of Hill Top also arranged for the delegation to visit a British prison and continue to pursue requests for our Embassy To ask Her Majesty’s Government, further to in Pyongyang to visit a North Korean prison. the Written Answer by Lord Wallace of Saltaire on 8 October (WA 27–8), how many women have been shortlisted for appointments in non-governmental Overseas Aid bodies for which the Minister for the Cabinet Office Question has been responsible. [HL3910] Asked by Lord Luce To ask Her Majesty’s Government what proportion Lord Gardiner of Kimble (Con): The Government of total overseas aid is allocated to Commonwealth is, for the first time, releasing data twice yearly on the countries; and in what form that aid is given. gender of ministerial public appointments. Information [HL3845] for the period 1st April 2013–30 September 2013 was published on 3 December and showed that of the Baroness Northover (LD): The UK is committed to 10 new appointments made by the Cabinet Office its strong relationships with the countries of the during this period, 40% were women. This data is Commonwealth. In the financial year 2012-13 UK available on the Cabinet Office’s website at: Government departments provided a total of £1.84 billion https://www.gov.uk/government/publications/ in bilateral ODA expenditure to Commonwealth countries, diversity-in-public-appointments representing 35% of total bilateral expenditure for that year. These figures exclude the UK Government’s North Korea contribution to multilateral organisations and regional Questions programmes which also benefit Commonwealth countries. Asked by Lord Alton of Liverpool UK aid is provided in various forms, including budget support, project type interventions, support To ask Her Majesty’s Government what assessment to non-governmental organisations, public private they have made of Amnesty International’s briefing partnerships and research institutions, the provision “North Korea: New satellite images show continued of experts, and debt relief. investment in the infrastructure of repression”. [HL3957] Parthenon Sculptures Question The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Asked by Lord Dubs Office (Baroness Warsi) (Con): The UK has serious To ask Her Majesty’s Government what response concerns about the continued use of prison camps in they have made to the request from the Director North Korea and about reports of severe and systematic General of UNESCO that the dispute about the human rights violations within these camps. Given Parthenon sculptures should be settled by mediation. this context, the reports of continued investment in [HL3907] infrastructure for prison camps outlined in Amnesty International’s report are worrying. However, we are Lord Gardiner of Kimble (Con): The Government unable to make a full assessment of the precise extent will respond to the request from UNESCO in due and scale of prison camps in North Korea because the course. North Korean government refuse to allow independent observers access to these camps. Registration of Deaths Asked by Lord Alton of Liverpool Question To ask Her Majesty’s Government whether the Asked by Lord Turnberg United Kingdom ambassador to Pyongyang has raised with the authorities in North Korea reports To ask Her Majesty’s Government what steps of the recent execution of North Korean officials they are taking to ensure that registration of deaths and the enlargement of political prison camps in can be accomplished in a timely way; and when that country. [HL3958] they propose to take any such steps. [HL4014] WA 193 Written Answers[17 DECEMBER 2013] Written Answers WA 194

The Parliamentary Under-Secretary of State, Home Roads: Car Traffic Office (Lord Taylor of Holbeach) (Con): The Home Question Office has responsibility, through the General Register Office, for the registration of deaths. The process of Asked by Lord Berkeley death registration is normally straightforward and timely. Deaths that are not referred to a coroner are To ask Her Majesty’s Government what was the usually registered within a few days of occurrence actual car traffic usage in each of the years 2000 to after the appropriate certification has been issued. 2012. [HL3931] When a death is the subject of a coroner investigation the registration takes place after its conclusion, when the cause of death has been established. Where a coroner has started an investigation, he or she may The Minister of State, Department for Transport issue a certificate of the fact of death to interested (Baroness Kramer) (LD): The table below contains the persons but this cannot be used for registration purposes. car and taxi traffic volume in Great Britain between The Chief Coroner has issued guidance to all coroners 2000 and 2012. The figures are presented in billion on the operation of the Coroners and Justice Act vehicle miles and billion vehicle kilometres, where one 2009, which includes setting out the coroner’s role in vehicle mile is defined as one vehicle travelling one the registration of deaths. The Department of Health’s mile. Similarly, one vehicle kilometre is defined as one death certification reforms when implemented are not vehicle travelling one kilometre. expected to have any significant bearing on the existing Due to the very similar physical properties of taxis time period for the registration of deaths. Deaths not and cars, the data collected is unable to distinguish investigated by a coroner will continue to be registered between the two. As a result, a combined figure is within a few days of occurrence. presented here.

Department for Transport statistics Traffic (www.gov.uk/government/organisations/department-for-transport/series/road-traffic- statistics) Road traffic for Cars and Taxis in Great Britain, annual from 2000 Billion vehicle kilometres/miles Kilometres Miles

2000 376.0 233.7 2001 381.2 236.9 2002 390.6 242.7 2003 390.0 242.3 2004 394.2 245.0 2005 392.7 244.0 2006 397.4 246.9 2007 397.9 247.3 2008 395.0 245.4 2009 394.0 244.8 2010 385.9 239.8 2011 387.4 240.7 2012 386.7 240.3 1 One vehicle mile is defined as one vehicle travelling one mile Telephone: 020 7944 3095 Email: [email protected] Notes & definitions (www.gov.uk/transport-statistics-notes-and-guidance-road-traffic) The figures in this table are National Statistics.

Roads: New Schemes National Policy Statement (NN NPS) makes clear Question that any increases in carbon as a result of nationally significant infrastructure projects will need to be offset Asked by Lord Berkeley by reductions elsewhere. This is entirely consistent To ask Her Majesty’s Government what assessment with the approach set out in the Government’s Carbon they have made of the impact of their proposal to Plan, published in 2011. Carbon impacts will still remove the requirement for planning inspectors to continue to form a key part of the transport appraisal take into account greenhouse gas emissions when and decision making process for road schemes. considering new road schemes on the level of The sustainability appraisal that accompanies the greenhouse gas emissions. [HL4002] NN NPS shows that the overall impact of the policy will reduce carbon emissions. This is because of the The Minister of State, Department for Transport Government’s wider policies to support the environment (Baroness Kramer) (LD): The draft National Networks including the transition to ultra-low emission vehicles. WA 195 Written Answers[LORDS] Written Answers WA 196

Schools: Expenditure accommodation on the island, in order to ensure the Question needs and expectations of visitors can be met after the airport opens. Asked by Lord Lexden To ask Her Majesty’s Government, further to Syria the answer by Lord Nash on 4 December (HL Deb, Question col 231), how the estimate of revenue and capital Asked by funding of £6,350 per state school pupil was calculated; Lord Alton of Liverpool and whether any elements of school spending were To ask Her Majesty’s Government what assessment excluded from that estimate. [HL4058] they have made of reports of an attack by Syrian rebels on the town of Ma’aloula, north of Damascus; The Parliamentary Under-Secretary of State for and whether they have any information about the Schools (Lord Nash) (Con): The estimate of revenue Greek orthodox nuns, and the orphaned children in and capital funding of £6,350 per state pupil in financial their care, in the St Thecla convent in that town. year 2012-13 was calculated by taking all planned [HL3902] expenditure identified as the schools budget within the Department’s expenditure limit and dividing that by The Senior Minister of State, Department for Communities all pupils in maintained schools and academies aged and Local Government & Foreign and Commonwealth 3to19. Office (Baroness Warsi) (Con): Wehave received conflicting The schools budget figure includes revenue funding accounts regarding the fighting in Maaloula, and the provided to local authorities to cover delegated budgets reported kidnapping of the nuns on 3 December. Regime to schools and all other services provided to benefit media outlets claim that the nuns have been abducted, schools and pupils such as the dedicated schools grant, whilst opposition sources have suggested that they academies funding, as well as the pupil premium and were transferred to another town, Yabroud, to ensure other miscellaneous programmes. their safety whilst the fighting around Maaloula was On the capital side it covers all capital programmes ongoing. including basic need, maintenance, devolved formula We understand that the nuns are being detained but capital, priority school building programme, academies are unharmed. However, given that the British Embassy and free schools capital and other miscellaneous has been closed in Syria since March 2012, our lack of programmes. access and the complex nature of the conflict mean As the figure covers all funding identified as the that it is impossible to easily verify reports of this schools budget within the Department’s expenditure nature. We have no further information regarding the limit, it aims to be as comprehensive an estimate as situation inside the monastery or the wellbeing of possible of the overall funding available to state schools. those still dwelling there. We will continue to monitor the situation and are seeking further clarification through our contacts in Syria. St Helena: Airport Questions Transport: Buses Asked by Lord Jones of Cheltenham Questions To ask Her Majesty’s Government what action is Asked by Lord Bradshaw being taken to translocate indigenous species from To ask Her Majesty’s Government how many the site of St Helena’s airport to other parts of the times in 2012 Traffic Commissioners held a Highway island. [HL3889] Authority to account for its contribution to poor bus punctuality. [HL4055] Baroness Northover (LD): The St Helena Government is currently implementing a Landscape and Ecology The Minister of State, Department for Transport Mitigation Programme as part of the airport project. (Baroness Kramer) (LD): There were no instances of Translocation of indigenous species of flora and fauna Traffic Commissioners holding a Highway Authority for the purposes of off-site conservation is one of the to account for poor bus punctuality in 2012. mitigation options open to environmental managers Asked by under this programme. Lord Bradshaw Asked by Lord Jones of Cheltenham To ask Her Majesty’s Government whether the provisions relating to state aid in European Union To ask Her Majesty’s Government what is their Regulation 1370/2007 have ever been invoked because assessment of the rate of progress on provision of a local authority has over-compensated a bus operator accommodation for tourists to St Helena in preparation in respect of concessionary travel reimbursement. for the opening of the island’s airport in 2016; and [HL4056] what they consider to be the reasons for any delay. [HL3891] Baroness Kramer: EU Regulation 1370/2007 is not “invoked” directly regarding concessionary travel Baroness Northover: The St Helena Government, reimbursement. In domestic Regulations, Regulation 6 with the support of the Department for International of The Mandatory Travel Concession (England) Development, is currently examining options for Regulations 2011 complements EU Regulation 1370/2007 improving the quality and quantity of tourist as it requires local authorities to ensure that bus WA 197 Written Answers[17 DECEMBER 2013] Written Answers WA 198 operators are left “no better off and no worse off” as a the UK. Since the introduction of the DATV there has consequence of taking part in the mandatory travel been a noticeable fall in transit passengers claiming concession. asylum. We therefore have no plans to abolish transit The decision maker appointed to act on behalf of visas, but do keep the specifics of our transit visa the Secretary of State for Transport to determine regime under regular review applications by bus operators has powers under domestic Asked by Lord Patten Regulations to reduce the level of reimbursement in the event of a dispute between an operator and a local To ask Her Majesty’s Government what assessment authority. For one application made by an operator in they have made of the European Union proposals 2011/12 he determined that there should be a specific to allow Turkish citizens to travel without a visa rate of reimbursement for fare revenue forgone which within the whole European Union area; and what is was less than the overall rate, including the amount of the likely effect of any such proposal on the United reimbursement for the additional costs element of Kingdom. [HL4070] reimbursement, which the authority had published for its scheme. Lord Taylor of Holbeach: The UK does not participate With regard to State aid, the Directorate General in the EU common visa policy, and therefore any such for Competition in the European Commission is the proposals would not allow Turkish nationals to travel appropriate body to consider complaints. to the UK without a visa. The Government notes that agreement has only been reached for the European Turkey Commission to begin discussions with the Turkish Question authorities on visa liberalisation, and that these discussions will take a considerable period of time. As such, it is Asked by Lord Hylton too early to make an assessment of any such visa liberalisation on the UK. To ask Her Majesty’s Government what assessment they have made of progress on withdrawing Kurdistan Workers’ Party (PKK) fighters from Turkey; and whether they consider that any such progress will World Trade Organisation increase the prospects of (1) the release of prisoners Question held in Turkey for political reasons, and (2) the Asked by Lord Pearson of Rannoch removal of the PKK from their list of proscribed terrorist organisations. [HL4047] To ask Her Majesty’s Government which Ministers represented the United Kingdom at the 9th World The Senior Minister of State, Department for Communities Trade Organisation Ministerial Conference in Bali and Local Government & Foreign and Commonwealth on 5–7 December; and what role they played in Office (Baroness Warsi) (Con): We support the Turkish proceedings. [HL4029] government in its desire to find a peaceful and sustainable settlement of the Kurdish issue and applaud the steps The Minister of State, Department for Business, taken by all parties to move the process forward. Innovation and Skills & Foreign and Commonwealth In August 2013 The Kurdistan Workers’ Party (PKK) Office (Lord Livingston of Parkhead) (Con): My Noble began withdrawing from south-east Turkey. The PKK Friend Lord Green of Hurstpierpoint represented the announced in October 2013 that this withdrawal was United Kingdom at the 9th World Trade Organisation frozen, but the ceasefire still holds. Ministerial Conference held in Nusa Dua Bali on We were encouraged by the “democratisation package” 3-7 December. Lord Green also acted as one of the announced by the Turkish government in September three Vice-Chairs at the Conference supporting Chairman, 2013 and hope that further progress can be made, with Gita Wirjawan, Indonesia’s Trade Minister. Further the aim of bringing stability and prosperity to Turkey’s details can be found in the Written Ministerial Statement south east. The release of any prisoners and the tabled before the Conference - Hansard reference 28 Nov proscription status of the PKK in Turkey, is a matter 2013: Column WS93. for the Turkish authorities. Zimbabwe Visas Question Questions Asked by Lord Maginnis of Drumglass Asked by Lord Moynihan To ask Her Majesty’s Government, further to To ask Her Majesty’s Government whether they the Written Answer by Lord Bates on 6 November intend to abolish transit visas to encourage business (WA 62), how much of the financial aid and travel to the United Kingdom. [HL3928] support they provide is delivered to Zimbabwe through multilateral organisations, international non- The Parliamentary Under-Secretary of State, Home governmental organisations and the private sector; Office (Lord Taylor of Holbeach) (Con): Direct Airside whether accountability reports are maintained; and Transit Visas (DATVs) allow the Government to run what proportion of aid is delivered to the Matabeleland comprehensive checks on those intending to transit region. [HL3869] WA 199 Written Answers[LORDS] Written Answers WA 200

Baroness Northover (LD): DFID channels all its aid annually and subject to on-going financial scrutiny. to Zimbabwe through either multilateral organizations Programme Annual Reviews are accessible to the public or the private sector. During the UK financial year on the DFID website. 2012/13, DFID Zimbabwe provided £82m of development Geographical spread of programming within assistance for nationwide programming in over 15 sectors. Zimbabwe is dictated by need, and most of our This spend is allocated as follows: International Non- programmes operate nationally. Our rural Water, Governmental Organizations (INGOs) 19%, multilaterals Sanitation and Hygiene (WASH)programming benefits 59% and the private sector 22%. All programmes run the Matabeleland region in particular (20% of overall under the DFID Zimbabwe portfolio are reviewed WASH spend). Tuesday 17 December 2013

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Businesses: Regulation...... 127 Independent Commission for Aid Impact: Triennial Review ...... 136 Courts and Tribunals Service: Revenue...... 127 NHS England: Funding...... 137 Employment: Health and Disability...... 129 Pensions: Automatic Enrolment...... 138 Energy: Oil and Gas...... 130

EU: Telecommunications Council...... 131 Presumption of Death Act 2013 ...... 138

Health: Red Tape Challenge ...... 133 Railways: Network Rail ...... 139

Houses of Parliament: Restoration and Renewal...... 135 Sustainable and Secure Building Act 2004 ...... 140

Huawei Cyber Security Evaluation Centre...... 136 Terrorist Asset-Freezing etc. Act 2010 ...... 140

Tuesday 17 December 2013

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Anguilla...... 169 Homeless Families ...... 184

Apprenticeships ...... 169 Human Rights ...... 184

Asil Nadir...... 172 Human Trafficking ...... 184

Broadcasting: Sensory Impairment...... 172 Immigration...... 185

Building Stability Overseas Strategy ...... 173 Immigration: Holding Facilities...... 186

Cars: Fuel Consumption...... 173 Imports...... 187

Charities ...... 174 Intestacy ...... 188

Charity Commission...... 175 Jobcentre Plus: Toilets...... 187 Colombia...... 175 Migration...... 188 Conflict, Stability and Security Fund...... 176 Ministry of Defence: Police ...... 189 Coram Foundation and Foundling Museum...... 177 Mohammed Ahmed Mohamed...... 189 Courts: Closures ...... 177 National Infrastructure Plan...... 190 Crown Immunity ...... 177 Non-governmental Bodies ...... 191 Cyprus ...... 178 North Korea ...... 191 Detention Centres: Sexual Abuse...... 178 Overseas Aid...... 192 EU: Migration ...... 178 Parthenon Sculptures...... 192 First World War: Commemoration...... 179 Registration of Deaths...... 192 Government Departments: Management Information Reports ...... 179 Roads: Car Traffic...... 194

Government Departments: Secondments...... 183 Roads: New Schemes ...... 193

Grenada...... 183 Schools: Expenditure ...... 195 Col. No. Col. No. St Helena: Airport ...... 195 Turkey...... 197 Visas ...... 197 Syria ...... 196 World Trade Organisation...... 198 Transport: Buses ...... 196 Zimbabwe ...... 198 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL3443] ...... 184 [HL3928] ...... 197

[HL3509] ...... 178 [HL3931] ...... 194

[HL3712] ...... 179 [HL3932] ...... 190

[HL3760] ...... 185 [HL3934] ...... 190

[HL3767] ...... 169 [HL3943] ...... 189

[HL3778] ...... 186 [HL3949] ...... 179

[HL3794] ...... 172 [HL3952] ...... 179

[HL3822] ...... 170 [HL3953] ...... 180

[HL3825] ...... 170 [HL3957] ...... 191

[HL3830] ...... 177 [HL3958] ...... 191

[HL3833] ...... 175 [HL3960] ...... 180

[HL3834] ...... 176 [HL3961] ...... 180

[HL3835] ...... 176 [HL3964] ...... 181

[HL3839] ...... 183 [HL3972] ...... 174

[HL3845] ...... 192 [HL3973] ...... 175

[HL3868] ...... 178 [HL3974] ...... 174

[HL3869] ...... 198 [HL3977] ...... 174

[HL3870] ...... 172 [HL3984] ...... 184

[HL3871] ...... 169 [HL3987] ...... 188

[HL3872] ...... 169 [HL3989] ...... 170

[HL3882] ...... 183 [HL3990] ...... 171

[HL3889] ...... 195 [HL3991] ...... 171

[HL3891] ...... 195 [HL3992] ...... 171

[HL3902] ...... 196 [HL3993] ...... 171

[HL3907] ...... 192 [HL3994] ...... 181

[HL3910] ...... 191 [HL3996] ...... 181

[HL3911] ...... 175 [HL3997] ...... 182

[HL3912] ...... 175 [HL3999] ...... 182

[HL3915] ...... 188 [HL4002] ...... 193

[HL3916] ...... 187 [HL4003] ...... 177

[HL3926] ...... 173 [HL4009] ...... 173

[HL3927] ...... 176 [HL4012] ...... 177 Col. No. Col. No. [HL4014] ...... 192 [HL4054] ...... 189

[HL4019] ...... 178 [HL4055] ...... 196 [HL4056] ...... 196 [HL4020] ...... 184 [HL4058] ...... 195 [HL4029] ...... 198 [HL4070] ...... 198 [HL4031] ...... 183 [HL4103] ...... 172 [HL4047] ...... 197 [HL4124] ...... 188 Volume 750 Tuesday No. 89 17 December 2013

CONTENTS

Tuesday 17 December 2013 Questions Social Mobility: Public Schools ...... 1133 Independent Panel on Forestry Report ...... 1135 Ticket Reselling ...... 1138 G8 Summit on Dementia ...... 1139 Unsolicited Telephone Communications Bill [HL] Third Reading ...... 1143 Children and Families Bill Report (2nd Day) ...... 1143 Gambling (Licensing and Advertising) Bill Second Reading ...... 1217 Grand Committee Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013 Motion to Consider...... GC 255 Smoking: E-cigarettes Question for Short Debate ...... GC 258 EU: Financial Transaction Tax (EUC Report) Question for Short Debate ...... GC 270 Barnett Formula Question for Short Debate ...... GC 286 Written Statements...... WS 127 Written Answers...... WA 169