Vol. 717 Monday No. 47 1 March 2010

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Unemployment Finance: Debt Sure Start St David’s Day Third Parties (Rights against Insurers) Bill [HL] Third Reading Personal Care at Home Bill Committee (2nd Day) Mortgage Repossessions (Protection of Tenants Etc.) Bill First Reading Digital Economy Bill [HL] Report (1st Day) Jobseeker’s Allowance (Skills Training Conditionality Pilot) Regulations 2010 Motion to Approve Digital Economy Bill [HL] Report (1st Day) (Continued)

Grand Committee Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010 Data Protection (Monetary Penalties) Order 2010 Personal Accounts Delivery Authority Winding Up Order 2010 National Employment Savings Trust Order 2010 Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Bosnia and Herzegovina) Order 2010 Health Protection (Local Authority Powers) Regulations 2010 Health Protection (Part 2A Orders) Regulations 2010 Health and Social Care Act 2008 (Consequential Amendments) Order 2010 Debated

Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2010, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 1185 Unemployment[1 MARCH 2010] Unemployment 1186

not the fundamental question concern where our AAA House of Lords rating is on the global finance markets? If that stands, employment stands. Monday, 1 March 2010. Lord McKenzie of Luton: My Lords, of course 2.30 pm employment is a very important issue. Before the recession we had the aspiration of an 80 per cent Prayers—read by the Lord Bishop of Bradford. employment rate. As we have come through the recession, we have seen the first quarter of growth, at the end of Unemployment last year, in a little while. We need to re-energise and refocus on making sure that we hit those employment Question targets, which is why I repeat that these things do not happen by chance; they happen because the Government 2.36 pm have invested £5 billion in capacity for Jobcentre Plus Asked By Lord Roberts of Conwy for a range of measures to keep people in employment or to move them closer to the labour market. To ask Her Majesty’s Government what is the latest quarterly figure for total unemployment in Lord Soley: Does my noble friend agree that it is a the United Kingdom; and what is the latest monthly mistake to sell our country short when, in fact, total number of claimants of unemployment benefit. unemployment in this country is significantly lower, and has long been lower, than that of many of our The Parliamentary Under-Secretary of State, European competitors? Can we also bear in mind that Department for Communities and Local Government & a 0.3 per cent growth rate is higher than even the best Department for Work and Pensions (Lord McKenzie of prediction, which was 0.2 per cent? Should we not be Luton): My Lords, in the quarter to December 2009, at least a little welcoming of the optimism that feeds 2,457,000 people aged 16 and over were ILO unemployed. and drives the British industry that keeps the jobs and In January 2010, 1,635,600 people were claiming investment going? jobseeker’s allowance. Lord McKenzie of Luton: Yes, my Lords; I very Lord Roberts of Conwy: My Lords, welcome as the much agree with my noble friend. It is not just the reduction of some 3,000 in the overall ILO figure is, growth rate at the end of last quarter: a number of does the Minister agree that it has to be seen in the surveys are showing improved confidence. He is right context of a 12,000 reduction in the total number of that if you look at the UK’s unemployment rate in people in employment and a fall of 37,000 in the comparison with the rest of the world, we have an number in full-time employment—which is, I think, a unemployment rate that is lower than the G7, EU and record high figure? Does he agree that those figures OECD averages. We are at 7.8 per cent on the ILO and the 23,500 rise in the number of claimants hardly measure. Canada is at 8.3 per cent, Italy at 8.5 per suggest that we are well clear of the recession and in cent, the US at 9.7 per cent, France at 10 per cent and fact augur rather badly for economic growth and the Spain at 19.5 per cent. Government’s target of 1.25 per cent for this year, which is twice the EU forecast of 0.6 per cent? Lord Taylor of Holbeach: My Lords, I am sure the Minister is aware that this question is about real jobs that will sustain a recovery. He also talks of investment Lord McKenzie of Luton: My Lords, I do not at a time when the car scrappage scheme is ending. accept that it augurs badly for economic growth in this How many jobs does he think have been saved by the country. There are now clear signs that the position in car scrappage scheme, and how many will be lost by its the labour market is stabilising—redundancies have abandonment? fallen back significantly since spring of last year, fewer people made new claims for jobseeker’s allowance and Lord McKenzie of Luton: My Lords, the car scrappage the number of vacancies is also increasing. Indeed the scheme was part of the fiscal stimulus that the UK number of people unemployed on the ILO definition economy has received—a fiscal stimulus which I think is now close to flat and has, as the noble Lord identified, was opposed by the noble Lord’s party. I do not have reduced a little. Although the claimant count rose in the data on the precise number of jobs attached to the January, and there will always be variations from scheme, but he is quite right that we need to be about month to month, the number of people making a new sustaining jobs so that people have not only employment claim—322,600—was the lowest figure for a year. but jobs that are sustainable and in which they can There are still challenges ahead, which is why we must grow and flourish. If he looks at the vacancies that not hold back from the investment that the Government came out in the recent report, he will also see that have put into a range of programmes. In particular, we manufacturing showed an increase of something like must not divert resources from these programmes to 23 per cent on the quarter. That is a good sign as well. inheritance tax cuts for the wealthy or, indeed, for the married couple’s allowance. Lord Oakeshott of Seagrove Bay: My Lords, does the noble Lord agree that we would not now be facing Lord Campbell of Alloway: Does the noble Lord the need to make so many cuts, in jobs particularly, if agree that the fundamental problem is not only how all those who sat in this House and took the benefit of many are employed or not employed at the moment living in this country paid full British tax in this but how many will be employed in the future? Does country? 1187 Unemployment[LORDS] Finance: Debt 1188

Lord McKenzie of Luton: My Lords, I am a great Baroness Gardner of Parkes: I thank the Minister believer in the sentiment that the noble Lord has for that Answer. Is he aware that the citizens advice expressed. The ability of people to sit in this House bureaux have drawn attention to the 9,500 new debt when they claim to be non-domiciled and are not problems and 8,200 new benefit problems every working treated as ordinarily resident and domiciled in this day? The latest call I received said, “You’ll be able to country is a huge mistake—one which I think and work off 100 per cent of your debts in just 12 months. hope we will rectify soon. To see if you qualify to take advantage of this scheme and to have your entire debts written off then press 2 The Countess of Mar: My Lords— on your phone now”. I get these calls several times a week. Does he agree that the danger is that vulnerable Lord Haskel: My Lords— people will be taken in by that type of message, and that the Government should at least issue warnings Noble Lords: Cross Bench! about it?

Baroness Royall of Blaisdon: My Lords, we should Lord Young of Norwood Green: I agree with the hear from the Cross Benches. noble Baroness. I, too, have had these calls, although I have not stayed on the line as long as she did—I have The Countess of Mar: My Lords, can the noble never got to the “press 2” bit. However, we share her Lord say what assessment he makes of women who concern about the situation. We realise that a significant would like a job but do not apply for jobseeker’s number of people are struggling with their finances allowance and do not register as unemployed simply during the recession. Additional funds were poured because of the job situation? into various funding activities: £10 million to support longer opening hours at 330 citizens advice bureaux; Lord McKenzie of Luton: My Lords, I am not sure £5.8 million for the National Debtline to increase that we have much evidence for that particular assertion. capacity levels on the helpline by 50 per cent, thereby As the noble Countess will recognise, because I think enabling it to handle 220,000 calls a year; and £500,000 she was involved in our debates on the Welfare Reform to develop a new self-help debt advice toolkit to Bill, there has been a lot of focus on helping people empower people to negotiate with creditors and agree back into and closer to the labour market—particularly a repayment plan, thus freeing up more time for debt helping lone parents, most of whom are women—and advisers to deal with people who are facing crisis debt on supporting them so that they can actually move problems. into employment. If one looks at all the issues around poverty, one sees that the thing that makes the difference is people’s employment opportunities. Lord Razzall: My Lords, I shall slightly widen the noble Baroness’s Question. I appreciate that this may Lord Davies of Coity: My Lords— be slightly above the Minister’s pay grade, but will he undertake to ensure that during the election we do not Lord Davies of Oldham: I am sorry, my Lords, we have a repetition from the Labour Party of what must move on. happened last time, when I understand that many people received computer-generated telephone calls Finance: Debt from John Prescott at 3.30 am? Question Lord Young of Norwood Green: The noble Lord should remember the saying, “Let him who is without 2.44 pm sin cast the first stone”. In 2005, the ICO served Asked By Baroness Gardner of Parkes enforcement notices against the Conservative Party To ask Her Majesty’s Government what action and the SNP. In 2008, the ICO served an enforcement they plan to take to deal with unsolicited computer- notice against the Liberal Democrats as they had generated telephone calls offering to resolve any breached the PECR by making unsolicited automated and all debt and financial problems. marketing calls to consumers who had not given their consent. The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Lord Naseby: The noble Lord suggests that those Young of Norwood Green): My Lords, organisations who wish to complain should get hold of the Information that use recorded phone messages to promote a product Commissioner. Is it not about time that the Information or service are required by law to comply with the Commissioner got off his backside and recognised Privacy and Electronic Communications (EC Directive) that there are thousands of complaints out there already, Regulations 2003. Regulation 19 requires the caller and that he should do something about them? who leaves a recorded phone message to ensure that they have obtained prior consent. Where a consumer Lord Young of Norwood Green: The Information receives a recorded message that they have not agreed Commissioner initially warns companies informally to, this is likely to be a breach of the regulations. In that he will initiate formal action unless they cease to these circumstances, consumers are encouraged to report make such calls, which is usually effective and removes such calls for further investigation to the Information the need for formal action. Since 2005, the ICO has Commissioner’s Office, as it has responsibility for the issued five enforcement notices. As regards unsolicited enforcement of the regulations. marketing calls, as opposed to computer-generated 1189 Finance: Debt[1 MARCH 2010] Sure Start 1190 live calls, you can use the telephone preference service, Baroness Massey of Darwen: My Lords, I thank my which should stop these calls. Fifteen million people noble friend for that positive reply. Can she say how have registered for that facility and the number is many Sure Start centres now exist in total and how the growing. question of outreach to the most vulnerable groups is working? There has been concern about this—has it Lord Acton: Is my noble friend aware that I now live been addressed? in mortal terror of getting an unsolicited computer telephone call from the noble Lord, Lord Razzall? Is Baroness Morgan of Drefelin: My Lords, we are on there a publicity campaign to inform people about this track to achieve our target of 3,500 Sure Start centres admirable figure, the Information Commissioner? by this month; that is one in every community—a Lord Young of Norwood Green: I thank my noble stark contrast to 1997, when there was none. The friend. I cannot do much about the terror in which he Government’s vision, built on experience and evaluation lives, but I suggest counselling. We are active in terms so far, is for outreach to be very much part of the work of the Government’s other activities. The Ministry of of Sure Start centres. It is in stark contrast to the Justice runs the Financial Inclusion Fund, the Financial policy of the party opposite, which I understand is Services Authority and Her Majesty’s Treasury are committed to exchanging the work of outreach workers progressing their financial capability money guidance in favour of closing down some Sure Start centres; I pilots, and Communities and Local Government is think the figure is something like one in four. providing more help for consumers in difficulties via the mortgage rescue scheme. A number of government Baroness Walmsley: In view of the announcements schemes are in process and there is a lot of publicity. today about secondary school choices, can the Minister say what percentage of toddlers got their first choice Lord Hamilton of Epsom: Can the Minister tell us of Sure Start centre? Does she agree that parents vote how many unsolicited calls the Treasury has had to with their feet when it comes to evaluating Sure Start help with its debt and financial problems? centres and that the best centres are very oversubscribed by the middle classes? What are the Government doing Lord Young of Norwood Green: That information is to ensure that the most vulnerable people get those not available to me. places? Lord Brooke of Sutton Mandeville: Does the Minister recall the opening sentence of Cakes and Ale by Baroness Morgan of Drefelin: My Lords, my view is W Somerset Maugham to the effect that, when you that 100 per cent of parents have been able to achieve have been out and on returning home discover that their choice of Sure Start centre in their community somebody has called you and that it is extremely with this Government’s vision because we are committed important that you should call them back, you generally to ensuring that there is a Sure Start children’s centre find when you do call them back that it is more in every community. That is a commitment to a universal important to them than it is to you? service, which was achieved when we created a statutory footing for Sure Start centres in the ASCL Bill. We Lord Young of Norwood Green: I thank the noble must ensure that we really drive through our commitment Lord. As a Somerset Maugham fan myself, I could to Sure Start centres by ensuring that there is outreach not remember that particular quote. In today’s to disadvantaged communities; we learnt at the start circumstances, you would think “caller beware” before that many of the Sure Start centres in the disadvantaged you answer all those calls. communities were very conscious of excluding parents who were on their borders. That is not necessary. We Sure Start also know that Sure Start centres in more advantaged areas are used by children from disadvantaged areas, Question and that is why it is so important that we have a universal service. 2.51 pm Asked By Baroness Massey of Darwen Baroness Verma: My Lords, perhaps I may ask for To ask Her Majesty’s Government how many clarification. The Conservative Party supports Sure Sure Start programmes were set up during the past Start centres but it wants to ensure that they respond year; and how they will be evaluated. to the needs of the most vulnerable and poorest families in this country. Following on from the Question of the The Parliamentary Under-Secretary of State, noble Baroness, Lady Massey, what has happened to Department for Children, Schools and Families (Baroness the extra £79 million for outreach workers? Has it Morgan of Drefelin): My Lords, during the period been used and are there such workers in all Sure Start from January to December 2009, 472 Sure Start children’s centres? centres were designated. The DCSF’s guidance to children’s centre leaders and local authorities contains Baroness Morgan of Drefelin: Let us be absolutely an expectation that they should evaluate the effectiveness clear about the Conservative Party’s commitment to of their services. The national evaluation of Sure Start Sure Start centres. As I understand it, it is about started in 2001 and last reported in 2008. The DCSF taking funding from Sure Start and putting it into has recently commissioned an evaluation of the other priorities. The shadow Chancellor could not implementation and impact of the full range of children’s confirm that that was not the case, so let us be clear centres; its first report is expected in late 2010. about Conservative policy here. 1191 Sure Start[LORDS] St David’s Day 1192

Baroness Hollis of Heigham: My Lords, I understand community school, a children’s centre and possibly a the sentiment behind my noble friend’s Question but is walk-in centre. These are all facilities that a Labour it not the case that if Sure Start schemes were confined Government are committed to promoting. primarily to the vulnerable and the disadvantaged, they would become stigmatised and, as a result, children Baroness Pitkeathley: My Lords, in view of the in those groups would not use them? great success that there has clearly been in recruiting staff at Sure Start centres, including outreach workers, Baroness Morgan of Drefelin: I absolutely agree are there any lessons to be drawn about recruiting with my noble friend. We have to recognise that Sure social services and social care staff in general? Start centres have a great deal to offer every single community. By offering a universal service, we support Baroness Morgan of Drefelin: My Lords, we must families from both disadvantaged and affluent always be committed to learning the lessons. We know backgrounds, but it is the best way of reaching those that there are significant pressures on children’s social who would not otherwise access these services. services—I think that that is what the noble Baroness is referring to. Working in a Sure Start children’s The Earl of Listowel: My Lords, I welcome what centre can be a very positive experience and we should the Minister has said but does she not agree that, if we be learning from the training that is made available are to answer industry’s need for numerate and literate from the interaction with parents and making sure young people, we must invest earlier than we do? Is it that those lessons are learnt across children’s services. not counterproductive to invest so much in getting young people in the 14 to 19 age range to read, write and count properly when we know that good early St David’s Day years—pre-school and primary—education will be much Question more effective in ensuring the workforce that we need? 3pm Baroness Morgan of Drefelin: I believe that the Asked By Lord Roberts of Llandudno noble Earl’s analysis is right. We on this side of the House are saying that we have to invest in Sure Start To ask Her Majesty’s Government what and that it is not an either/or situation. We see the consultations they have held about declaring 1 March, benefits of investing in Sure Start come through the St David’s Day, an official Bank Holiday in Wales. system, with children who are more ready for school and who display better behaviour, and parents who are more equipped to cope with the challenges of a Lord Davies of Oldham: My Lords, I begin by modern society. We see these benefits coming through wishing the noble Lord, Lord Roberts, and our the system and, in time, with another Labour Government compatriots a very happy St David’s Day. No such we will see a much better outcome for 16 to 19 year-olds consultation has taken place, but I must stress that, for too. the people of Wales and for Welsh people all over the world, the absence of a public holiday on St David’s Day has not diminished the appetite to celebrate 1 March Baroness Maddock: My Lords, is the Minister confident in style and with pride. that Sure Start coverage is as she describes in rural areas, where population density is much lower? I do not believe that the ability to access Sure Start is as Lord Roberts of Llandudno: My Lords, I think that good in those areas as she has led us to believe. I thank the Minister for that Answer on Dydd Gwyl Dewi, which is Welsh for St David’s Day. However, we have almost without exception the fewest public holidays Baroness Morgan of Drefelin: The noble Baroness of all the countries of the European Union. When we touches on a very important point. As we have made look to have a new public holiday, could we give clear in the guidance that we have made available, we priority to the national days of Scotland, Wales and have to be careful that in rural areas local authorities England? St Patrick’s Day is already a bank holiday in have the flexibility to look at different kinds of models. Ireland, of course. Will the Minister initiate consultation Essentially, a Sure Start centre in every community soon with the devolved Administrations so that, when must be the aspiration but, if a local authority can another opportunity comes to have a public holiday, find a better way of meeting the needs of its service we can move immediately, without any hesitation, to users in a rural community, we have to listen to that. ensure that Wales, Scotland and England have their national holidays? Baroness Byford: My Lords, will the Minister define “community” for us all, and will she say how many Lord Davies of Oldham: My Lords, bank holidays Sure Start programmes are based in rural areas? have to be established on the basis of consultation because they reflect the work-life balance, on which Baroness Morgan of Drefelin: My Lords, I shall this Government have a proud record. It will be noted have to write to the noble Baroness about the number that we now have five and a half weeks of statutory of Sure Start centres in rural areas. However, it is clear entitlement. I bring to the attention of the noble Lord that we know what a community is. It is a place where the fact that any decision on St Patrick’s Day is for a a reasonable number of parents have reasonable access totally different country and Administration. As far as to a children’s centre, and you will also find there a Britain is concerned, the position is clear: the Scots 1193 St David’s Day[1 MARCH 2010] Personal Care at Home Bill 1194 decided to opt for St Andrew’s Day; the Welsh Assembly on whether they would like a national day to be Government have not as yet made a bid in the present celebrated by a bank holiday in accordance with the programme for a public holiday for St David’s Day. If practice elsewhere in these islands? such a bid comes forward, we will consider it. Lord Davies of Oldham: My Lords, I emphasise, Lord Davies of Coity: My Lords, does my noble with the most apposite example, that St Andrew’s Day friend agree that the noble Lords, Lord Roberts of is not an additional bank holiday; it is a substitute for Llandudno and Lord Roberts of Conwy, rather than another holiday in Scotland. If the Welsh Assembly being concerned with the unemployment figures and chose to go down that route, we would look at the bank holidays on St David’s Day, would be better issue very seriously, but in the bid for legislation this advised to look at the latest opinion polls? year the Welsh did not ask for that power.

Lord Davies of Oldham: My Lords, I thought that Lord Elystan-Morgan: My Lords, may I endorse, there was cause for much celebration today, but for with great pleasure and with humility, the candidature some of us opinion polls are always attended to with of St David? He was a British-born saint who lived all some degree of scepticism and doubt. If there was his life among his people, which is a record not shared cause for celebration in some parts of the House, that by all his saintly colleagues. probably took place earlier than today.

Lord Wright of Richmond: My Lords, is the Minister Lord Davies of Oldham: The history of the saints aware that the noble Lord, Lord Roberts of Llandudno, throws up some interesting illustrations, but I am might be well advised to have a holiday in the Lebanon? happy to testify to the authenticity of St David. When I was posted in Beirut, many years ago, it was reputed to have more national and religious holidays Lord Anderson of Swansea: My Lords, if we believe than any other country in the world. in devolution, should this decision not sensibly be left to the National Assembly? Lord Davies of Oldham: My Lords, the UK does not compare well on bank holidays with other Lord Davies of Oldham: My Lords, it is in one sense countries—the noble Lord draws the attention of the but, at the moment, this requires primary legislation. House to a particular illustration—but we do not do If the Welsh want to make changes, they need to make badly on holidays as a whole in comparison with representations for the British Government to consider others. against the background of the other factors involved, which I have mentioned. I am merely saying that the Lord Howell of Guildford: My Lords, if there are to Welsh Assembly Government have not made a submission be more holidays in the land of my fathers, which I thus far. personally would welcome, might it be wiser not to make them bank holidays? Most of us feel that holidays Third Parties (Rights against Insurers) Bill are not the appropriate thing for the banks at the [HL] moment; they should be working rather harder to pay Third Reading us back all the money that we have lent them. 3.07 pm Lord Davies of Oldham: That is a very interesting Bill passed and sent to the Commons. point. Almost the only thing that the banks are associated with favourably at the moment is bank holidays, but Personal Care at Home Bill we ought to bear in mind the point that the noble Lord has made. I think that the noble Lord, Lord Roberts, Committee (2nd Day) is emphasising that there is an enthusiasm in Wales and among Welsh people everywhere to celebrate 1 March, Clause1:Freeprovision of personal care at home as I think the Welsh do. Amendment 21 Lord Avebury: My Lords— Moved by Earl Howe Lord Anderson of Swansea: My Lords— 21: Clause 1, page 1, line 22, at end insert— “( ) make provision for those persons eligible for, or in Lord McColl of Dulwich: My Lords— receipt of, the free provision who are also deemed eligible for NHS continuing care” Baroness Royall of Blaisdon: My Lords, I think that we should hear from the Liberal Democrats. Earl Howe: I have tabled this amendment to ask the Minister questions about the potential for dispute in Lord Avebury: My Lords, is the Minister aware that the way that the provisions of the Bill are implemented. in the Bank Holidays Act 1871 it was wisely provided My main questions centre on the interface between that additional days could be added to the original list personal care at home and NHS continuing care. by royal proclamation? This power was used to add The number of people currently in receipt of continuing St Patrick’s Day in 2003 and the successor to the care from the NHS is roughly 45,000. It is likely, original Act was used to add St Andrew’s Day in 2007. although I confess that I have no figures to support Does the Minister think that, after all this time, it this, that a high proportion of those people will be would at least be worth consulting the people of Wales assessed as being in critical need of personal care 1195 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1196

[EARL HOWE] worker to ensure that the right number of pills are under the FACS—fair access to care services—definition. taken at the right times of the day is considerable. This The FACS guidelines, which are currently the subject is the kind of thing which, in hospital, only a qualified of revision, set out the criteria for determining a nurse would do. I worry that we may be creating a person’s level of need, the four categories being “low”, potential minefield here, in terms of where responsibilities “moderate”, “substantial” and “critical”. As we know, will lie, as between the NHS and local authorities. In the Bill is designed to cover only those in critical need, many ways, it is helpful to define in black and white and then only those who require substantial help with what we mean by personal care, but the other side of four or more activities of daily living. the coin is the scope that is created for arguing over The Minister will know that NHS continuing care what is meant by the various terms listed in the regulations. has provided a field day for lawyers over the past It is on that point, in particular, that I should be glad 10 years. A senior lawyer described it to me the other of any reassurance from the Minister. I beg to move. day as a sub-specialisation in the field of litigation, such are the quantity of challenges brought by patients, 3.15 pm and also very often the families of patients, against Baroness Barker: My Lords, my Amendment 23, decisions taken by the NHS about eligibility. With this which is grouped with Amendment 21, was tabled for Bill, we have in prospect another dimension of this exactly the same purpose as that of the noble Earl. type of challenge, one in which the NHS itself is likely After I tabled it last week, some individuals in my to argue that at least some of the burden of looking other working life, who did not know who I was and after people in their own homes should be borne by did not know that I had anything to do with your local authorities. The assessment process is set to Lordships’ House, happened to have a conversation become even more fraught than it has been up to now. which I simply sat in on and observed. They were all We can envisage local authorities resisting the idea of workers for a voluntary organisation who have had providing someone with free personal care at home experience of assisting older people with the process and directing them instead towards residential of assessment for continuing care. They were trying to accommodation with additional nursing, while at the establish between themselves—they came from three same time the PCT will resist that idea and argue in different areas—whether there was any consistency at favour of personal care in the home with little or no all in the decision-making processes to which they had nursing element. Somehow, there will have to be protocols been party. to deal with this type of situation. What set my mind particularly to this matter was Of course, we all, I am sure, subscribe to the idea of the description of an elderly man who has multi-infarct pooled budgets, but that will not of itself get round dementia, is blind, cannot walk, is doubly incontinent, the potential for disputes. If we look at the draft has lost the ability to swallow and therefore has to regulations and at the list of qualifying services that have all his food made for him and pureéd. He is not are to be the basis for determining whether someone’s eligible for NHS continuing care. That sparked a needs are critical, we see that they include, discussion about what NHS continuing care is. I do “eating or drinking (including the administration of parenteral not know whether this is right, but I am interested in nutrition)”. the point made by the noble Earl and in these care I am surprised to see the administration of parenteral workers’ distinct impression that only when someone nutrition classified as personal care. In hospital, parenteral has to be peg-fed do they have a remote chance of nutrition is almost invariably overseen by a qualified being considered for NHS continuing care and that nurse as it is classed as a form of medical treatment. that must be but one of their conditions; there must be Similarly, the list includes washing and bathing. It others, too. I, too, want to know how the criteria for would be helpful if the Minister could say whether this this care, which will be the new revised version of means we have finally overcome the arcane distinction FACS, will work alongside NHS continuing care. Will between an NHS bath and a social services bath. If we the Minister tell me for how long on average the have, I am quite surprised, because underneath that 45,000 people who receive NHS continuing care have example of what sounds like a daft distinction lies a received it? I am trying to gauge how ill someone has substantive issue in terms of the degree of care and to be to be eligible under the criteria. skill required to give a bath to one patient as compared The Bill is an amendment to the Community Care to another. (Delayed Discharges etc.) Act. So far as I can see in all Similarly, oral care is included as a qualifying service the debates in another place and here, one issue has for personal care. Certainly, some oral care will be not been the subject of any discussion at all, which is quite straightforward and will not require a nurse, but rather surprising. When that Act was introduced back will this always be the case where a person has some in 2003, it introduced intermediate care—an entitlement medical complication relating to their mouth, gums or of six weeks’ intensive care which elderly people are teeth? Equally, in the list of so-called activities of daily supposed to be given to enable them to be discharged living, we find management of treatment which consists from hospital when their medical needs have been of a prescription-only medicine. I agree that a care attended to. The Bill was introduced with £900 million worker is perfectly capable of reminding a frail, elderly of funding behind it. I have a series of questions to ask person that it is time to take their medicine. That is not the Minister today. I warned her that I would because a nursing task. But things become more difficult if we it is quite important that we do so. imagine a confused elderly person who takes a different When the Act went through Parliament, I asked combination of different pills at different times of the a series of questions about how it would work. day. The level of responsibility required in a care The noble Lord, Lord Hunt of Kings Heath, gave the 1197 Personal Care at Home Bill[1 MARCH 2010] Personal Care at Home Bill 1198 assurance that there would be a target; by March director of social services, when we policed the boundaries 2002, at least 220,000 people would be in receipt of with the NHS, and it equally policed those boundaries, intermediate care, over and above the baseline for with great vigour in the 1980s and 1990s. A serious 1999. The figures that I have been able to find show issue for the Government, which is made worse by this that, by the end of 2003, 143,000 people were being Bill, is the way that at a time when we are saying we given intermediate care. How many people—in the want to take down this Berlin Wall, we have created, last year for which there are figures—are in receipt of with the best of intentions, a whole range of areas intermediate care, and how many of them received it with scope for more disputes between health and at home? I ask that for two reasons. First, the term social services. They all had a good reason at the “intermediate care”seems to have disappeared somewhat. time—intermediate care, continuing care, and now I am beginning to pick up on cases in which carers are free personal care at home. I wonder whether the being told that their relatives are not eligible for Government know how many people are now engaged intermediate care because they have dementia and so in these various assessments, how those numbers will there is no possibility of them improving. There are be increased by this Bill, and how many people are specific criteria for eligibility for intermediate care, being diverted from providing care to patients and and the Bill proposes three different assessments of a service users in the area of carrying out assessments person to determine what sort of care they are eligible and policing those assessments in order to see that for, where they should receive it and for how long. I their particular organisation is not disadvantaged really would like the Minister to answer this in some financially. detail. If things have been bad at a time when finances are I am concerned that people are going to find themselves generous on both sides of the Berlin Wall, they are deemed to have met one of the FACS critical criteria, about to get much worse. There seems likely to be a but are not deemed to need assistance with daily living climate where policing of people’s responsibilities because they have a carer to help them, and therefore organisationally and financially will increase. I ask the they are going to be fobbed off. Is the decision support Government to think through this much more carefully—I tool, about which the noble Baroness the Minister think that it has been considered—and to have a talked last week, going to have a consistency across all serious discussion with the directors of adult social three of these assessments—NHS continuing care, services about the number of people now entrenched intermediate care and personal care at home? Further in this work, which is not of great use for the provision to that, can she say when the fast-track process will be of services to people who need them. brought into play? Finally, to pick up on the point made by the noble Earl about the potential for local authorities to challenge Lord Tunnicliffe: My Lords, I shall speak first about NHS continuing care decisions that may force people continuing care and what it means generally, for people back on to the personal care at home regime, for sometimes have different interpretations of the term. which the NHS will not be liable to pay, can the noble “Continuing care” is a term for care provided over an Baroness say how many PCTs and local authorities extended period to a person aged 18 or over to meet have a named lead officer for NHS continuing healthcare physical or mental health needs that have arisen as a funding issues? Increasingly there is the potential for result of disability, accident or illness. The term covers older people and their carers to be stuck between both NHS and social care services. PCTs and local authorities which are in dispute about “NHS continuing healthcare” means a package of eligibility. If cases such as the one that I just mentioned continuing care arranged and funded solely by the are deemed to be ineligible for NHS continuing care, NHS. A person is eligible for NHS continuing healthcare we are into an area of decision-making that is going to if their primary needs—their main needs—are health be so fine that it is going to take a fair amount of needs. All primary care trusts and local authorities in experience on somebody’s part to make those judgments England follow a common process to determine eligibility with any kind of consistency and lack of bias, so that set out in the National Framework for NHS Continuing people are not unfairly dealt with and so that we do Healthcare. not set up yet another lawyers’ charter. In the third quarter of 2009-10, 50,000 individuals I am asking a very simple thing—how can the across England were eligible for NHS continuing policy behind this Bill be implemented in such as way healthcare, and the number of eligible people continues that it does not cause confusion times three, but instead to increase. However, it is important to recognise that provides clarity and consistency between three different if an individual needs continuing care where their instances of decision-making. I should very much primary needs are not health needs, this will be provided welcome some guidance from the Minister on that. by the local authority, either alone or in partnership with the NHS where appropriate. It is right that, in Baroness Masham of Ilton: My Lords, the noble those circumstances, they should be able to receive Earl has illustrated very well how there may be confusion, personal care free of charge from the local authority if and so has the noble Baroness. It will be even worse if they qualify for it. It is important that NHS continuing the person needing care falls between two stools and healthcare and free personal care are recognised as gets no care at all. different ways of delivering health and social care where the balance between health and care may differ. Lord Warner: My Lords, I had not intended to It is vital that people do not fall between the health speak on this. However, the eloquence of the noble and social care systems. We need to be very clear in Earl, Lord Howe, took me back to my days as a guidance that those with continuing needs get the 1199 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1200

[LORD TUNNICLIFFE] any interface problems. In October 2007, the Department appropriate services, whether that is health or social of Health introduced a national framework for assessing care. While the number of people who receive NHS individuals’ eligibility for NHS continuing healthcare, continuing healthcare at home is small compared to replacing the 28 local frameworks previously used by people receiving NHS continuing care in residential the NHS. A revised version of the national framework care homes, there are some people at home who meet was issued in July 2009 to further develop best practice. the criteria. A key intention of the national framework was to We will ensure that the guidance we produce will reduce variations in eligibility for NHS continuing address the need for primary care trusts and councils healthcare between PCTs. The data collected show to work together to try to ensure a smooth interface that the variation has reduced significantly since the between NHS continuing healthcare and free personal national framework was introduced. care, and that people’s needs are identified appropriately. In addition, all strategic health authorities have Amendment 21 would appear to allow regulations developed benchmarking processes that give them detailed made by the Secretary of State to make specific provision information on the numbers eligible in each of the for people who have been deemed eligible for NHS primary care trusts in their area. They are using this to continuing healthcare also to be considered for eligibility help identify the causes of any variations and the for free personal care. The amendment is unnecessary. actions needed to address them. Where people are deemed eligible for NHS continuing It is a fair comment that we must get the guidance healthcare, the NHS is responsible for providing for right in all three areas. We are committed to doing so, all their assessed needs, including personal care if that and we have shown action with regard to this particular is part of the overall need. As such, they would not area of NHS continuing care. require such free personal care from their local authority I hope, on the basis of what I have said, that the because they would already be receiving it for free. noble Baroness and the noble Earl will not press their Amendment 23 would exempt a local authority amendments. They both asked a number of detailed from providing personal care free of charge to a questions to which I am afraid I will not be able to give person who is eligible for or receiving continuing care. instant answers. I will look at Hansard to see whether As I have explained, “continuing care” can refer to there is some useful detail we can add in writing. either health or social care services. If an individual needs continuing care, they may require services both Earl Howe: My Lords, this has been a useful short from National Health Service bodies and from local debate and I am grateful to everybody who has taken authorities. Local authorities should be able also to part, not least to the Minister for his full answer. I provide free personal care to such people if they found his answer partly reassuring, but we should qualify for it. listen very carefully to the noble Lord, Lord Warner, However, if an individual is entitled to services as whose experience in these areas is probably unparalleled part of NHS continuing healthcare, the person’s package among those of us present. He is right. An awful lot of of care to meet their assessed needs would be provided energy and effort are going to be devoted to shoring solely by the NHS and not the local authority, including up a Berlin Wall, and that effort could more productively any personal care that was required. be devoted, as he rightly said, to looking after people. It is important that NHS continuing care and free Having said that, I very much welcome what the personal care are recognised as different means of Minister had to say about the guidance. I think it is providing health and social care support across the quite important that the guidance goes into some NHS and social care systems. In all cases where it detail to remove some of the potential ambiguities in appears to a primary care trust that there may need to the terms that are to be used in the regulations. Even if be NHS continuing healthcare, the PCT has a duty to the terms that I have seen in the draft regulations are take reasonable steps to ensure that an assessment of tightened up, I am sure that there will still be scope for eligibility for NHS continuing healthcare is carried argument. The detail really does matter here. This is out. an area which all of us will follow with a lot of interest, but for now I beg leave to withdraw the amendment.

3.30 pm Amendment 21 withdrawn. It seems to me that the Bill and the explanation that I have given are clear about who pays what. What I Amendments 22 and 23 not moved. believe the noble Earl, Lord Howe, and to some extent the noble Baroness, Lady Barker, were saying is that Amendment 24 there may be problems at the interface. We recognise Moved by Baroness Greengross that, and we have already said with respect to the 24: Clause 1, page 1, line 22, at end insert— home care that is envisaged as a result of the Bill that “( ) require local authorities and primary care trusts to work we will be issuing very clear guidance. The whole issue together to assess a person’s needs and deliver a package of the guidance relative to intermediate care will be of personal care which is designed to maximise the covered by my noble friend Lady Thornton as part of person’s ability to live independently” the next group. It remains for us to continue to be content that the Baroness Greengross: The Bill aims to introduce national framework qualification for NHS continuing reablement or intensive support for people who need healthcare is developed in a way that is clear, to reduce home care for the first time, which might be following 1201 Personal Care at Home Bill[1 MARCH 2010] Personal Care at Home Bill 1202 a period of ill health or a stay in hospital. We know from being used as a heavy-handed tool to bully old that the Department of Health will issue separate people into doing things that may be on the edge of guidance to cover what a reablement package can or beyond what they are capable of, rather than as a include. The consultation suggests that this might be tool for encouragement and mutual working together? physiotherapy, occupational therapy or the installation of telecare or adaptations to the home. Baroness Murphy: I added my name to Amendments 26 People with dementia are significant users of both and 28. It is important for us to explore this discretionary health and social care. My amendment would encourage activity around reablement and how it will be NHS and local authorities to have joint responsibility implemented. This is also our opportunity to look at for delivering a health and social care package that the Government’s thinking on reablement. I hope that could maximise the ability of a person to live the noble Lord, Lord Lipsey, will not mind me teasing independently after, for example, a stay in hospital. I him for a moment, but I find it interesting that he am speaking briefly, as much has already been said on called it “re-enablement”. That is because he cannot these issues. find “reablement” in the dictionary either. It does not Amendment 34 would ensure that the possibility of appear in any dictionary yet; the term has been developed reablement is offered to people with dementia, who, as within social services to talk about rehabilitation. I we know, are more likely to stay in hospital for longer cannot think of a single way in which it is different, than others who go in for the same procedures—the but I will come to the cultural aspects of why it is Alzheimer’s Society report Counting the Cost, which called something different, because that is important. was produced last year, revealed that people with dementia stay in hospital far longer than those who go This is exactly what intermediate care was set up to in for exactly the same procedure. The longer people do. Again, therefore, I am afraid that there is extraordinary with dementia stay in hospital, the worse the effect of confusion. It is a bit like the difference between a the symptoms of dementia and the individual’s physical social care bath and an NHS bath. It is not just the health. Discharge to a care home becomes more likely bubble bath that goes in from social services; the and anti-psychotic drugs, as we know, are more likely question is who delivers it and what the philosophy is. to be used to manage behavioural symptoms. I am That is also the issue with enablement—I am sorry, I concerned that people with dementia may be wrongly mean “reablement”, which is the word that will go into excluded from reablement because of the erroneous the dictionary eventually. view that they might not benefit. The amendment I know that the wording of Amendment 26 is would highlight the relevance of reablement whenever probably the reverse of what is desirable, so I will save possible for people with dementia. the Minister the effort of responding to the wording. I am as keen as anybody that there should be the opportunity for people to have a professional assessment Lord Lipsey: I shall speak briefly to Amendments 26 to see whether there is room for improvement and and 28 standing in my name and the names of the to provide interventions in the physical and social noble Lord, Lord Warner, and the noble Baroness, environment that will allow people to function as well Lady Murphy. Amendment 28 is simple: it would as they possibly can. I am worried, however, about replace “maximise” with “improve”. “Maximise” is how this discretionary intervention will be exercised in the sort of word that should not appear in legislation; practice, particularly in relation to the concerns that it suggests that we should do this whatever the cost, were expressed by the noble Earl, Lord Howe, and the even if it is infinite, which in some cases it could be. noble Baroness, Lady Barker, on the previous set of “Improve” would be perfectly valid in this context and amendments. The opportunities for confusion, for it would improve the legislation. swapping around and for the exercise of discretion as Amendment 26, which is the more important of the to who pays for what and who does what are really pair, is very much a probing amendment, as I want to quite frightening. As the noble Baroness, Lady Greengross, explore the Government’s thinking. Everybody is in said, the problem arises in particular in relation to favour of re-enablement. There is no question but that those with dementia, perhaps when they come out of it is a good thing—the more it can be done successfully, hospital and are assessed for the first time, when there the better. However, the Bill is drafted in such a way will be opportunities for toing and froing between that, if an elderly person is not willing to accept a authorities about who is going to do what. programme for re-enablement, their free personal care The reablement approach is interesting, because it can be withdrawn. That kind of thing is quite common was developed with the sense of a restorative and in social policy these days, in the same way that if an capacity-building approach to improving the lives of unemployed person refuses to take a job their allowance disabled older people. It is as much a philosophical can be withdrawn. That is not always wrong, but I am and cultural approach as a specific technique—not a bit concerned about what this might mean in practice. doing things for people, but assisting and doing alongside. Re-enablement may not be an easy process for the However, one has to admit that there are at the moment person undergoing it. Physiotherapy can be painful to no long-term studies that have demonstrated its efficacy anybody of any age, but for someone in later life it over the longer term for people with a level of disability may be difficult to tolerate. I do not like the idea that a who will be the recipients of the free personal care. We local authority can say, “You get on and do your are talking about a seriously disabled group of people. exercises, Mrs Jones, or we’ll take away your free All successful studies have used very high levels of personal care”. That is not the kind of relationship intervention. The Government’s short-term studies that should exist as a result of such legislation. What are encouraging for people of all ages and show that guidance will the Government offer to prevent this one can achieve a small but significant reduction in 1203 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1204

[BARONESS MURPHY] Some people come out of hospital and just want to the use of personal care services. However, it is important go home. That is the most important thing to them. to note that the studies in the care services delivery They do not want to go for weeks to a place where efficiency programme focused not only on those practical they do not know anyone to have an intensive period aspects of daily living that are the subject of this Bill of what they consider to be treatment. They do not but on much broader criteria of success. The interventions want that and they do not feel in charge of it. Some were often for longer than six weeks and for far more people want to stay with relatives for a while until they hours than is being proposed here. In fact, the cost of get themselves back together. If they choose to do those successful schemes was more than what has been that, sometimes they are deemed to be ineligible for allocated for the reablement process. intermediate care and they might be ineligible for I suppose that a purist would point out that it is personal care at home. However, some of them really rather bizarre to implement reablement intervention need the services. What happens to people who need as a prerequisite for receiving assistance, when the the services but who refuse to go through the particular long-term studies currently in progress have not reported pathway set out in this Bill? yet. We know that schemes are nearly always successful I concede that much good has been done with the in their pilot phases, but long-term sustainability and £900 million of intermediate care services, but some of cost-effectiveness may be difficult to predict. Given the times and ways in which that policy has been how often I have personally pushed for things to be implemented have not been particularly effective. An rolled out when there is some indication of support, I older person with a broken arm or leg probably could have some sympathy with the Government in wanting do with a period of reablement or rehabilitation when to do this. However, we should realise that reablement their cast is removed, which may be more than six has so far been shown to be effective on, for example, weeks after they come out of hospital. However, they mentally alert people who, after a short stay in hospital are not allowed to have that because it does not fall with a fractured femur, are coming out and need to get within the timeframe. When the Minister talks about their confidence back. In that scenario, it can be quite intermediate care, as I know she will, will she say successful. However, the Government’s short-term studies, whether this Bill is an admission that for quite a which are fine as far as they go, show that reablement number of older people that arbitrary six-week time is less effective for those with severe disabilities over a limit has been ineffective? longer period. It can be effective, but there is a group Also, does the Minister share my concern that there of people for whom an intensive, much longer period has already been a considerable amount of rebadging— of care will be required. I have great doubts about the that is a new term, I think, but it has an awful lot of amount that will be required to get the improvements currency in the NHS these days—of intermediate needed within the proposed level of reablement input. care? I am thinking of things such as rapid response That is the purpose of this probing amendment. services, which now seem to be the flavour of the day. I As for Amendment 28, one should bear in mind do not have a problem with people choosing to call that, for example, following a stroke or a head injury, their services new things; I do not even have a problem maximum performance will not be achieved for perhaps with the services being given new and better purposes. more than two years, which would be a long time after However, I have a significant problem when money the reablement process had finished. Therefore, I wonder flows behind them in covert ways. That is what I am whether the word “maximise” is quite right. I suggest trying to get to the heart of: where does the money that “significantly improve”would be a more appropriate behind this system go? How is that tied to the assessment phrase, particularly for people with mental health criteria and the eligibility criteria? problems. Finally, health and social care professionals are increasingly having to deal with a particular group of 3.45 pm people whose need for services has not changed but for whom the money has run out. These people have Baroness Barker: I shall speak to my amendment in funded their care for so long that they have run out of this group. I want to probe some of the areas mentioned capital and resources. They have very significant needs, by the noble Lord, Lord Lipsey, again in the context so how and when will they move into eligibility either of intermediate care provisions, about which I have for NHS continuing care or for free personal care? previously spoken. Just as intermediate care provisions Their needs are very high; it is just that their resources have an interplay with NHS continuing care, so they have run out. The noble Lord, Lord Warner, is right: do with personal care at home. soon we will be back to a time when the assessment of I have a tremendous amount of sympathy with the clinical and social care needs will be governed largely points made by the noble Lord, Lord Lipsey. I am a by money. In our debate we need to do our best to fan of reablement. I was a big fan of it when it was prevent that. called rehabilitation and I was just as big a fan when it was called good hospital discharge. It works tremendously Earl Howe: My Lords, Amendment 30 in my name well for a number of people. An older person who has is designed to highlight what I hope are some fairly had a stroke and has lost their confidence would value uncontentious issues around reablement. I come at having someone to help them through the processes of this from a rather different angle from the noble returning home and learning to cope again. Sometimes Baroness, Lady Barker, although I very much identified it is a rather crude tool, while the strictures around it with all that she said. and the question of who pays for it have sometimes Reablement, as we have heard, is to be a precondition militated against the policy being as effective as it for receiving free personal care at home, but the way could be. that reablement is offered and delivered to people will 1205 Personal Care at Home Bill[1 MARCH 2010] Personal Care at Home Bill 1206 be very much a matter for local authorities to determine. be involved. How will local authorities be prevented Local authorities that are strapped for cash will be from acting in a way that unreasonably imposes on tempted to use reablement as a way of putting off the unpaid carers? day when they have to decide one way or the other on a person’s eligibility for free personal care. Therefore, Lord Best: My Lords, perhaps I may add to the in the first instance I am worried that the process of probing that is inherent in all these amendments. If reablement could be delayed, whether deliberately or the reablement is to be the subject of free support not, as a means of postponing the burden of costs financially, does it have to take place at home or can it arising from having to give free care. How will authorities sometimes take place more satisfactorily in residential be monitored and held to account for the way in which care on a short-term basis? In administering a retirement they deliver reablement? What will prevent them from village outside York, we found that people leaving using reablement as a tool for withholding free personal hospital often did not go straight home but spent time care from those who would otherwise be eligible for it? in the intermediate care phase in a residential setting. My second worry is very similar. There appears to Would they then forfeit the opportunity to receive be no limit to the number of times a local authority financial help with a reablement package that would would be able to insist that someone went through be available only if they went straight home? Perhaps a reablement process. The Minister in another place the Minister could clarify that. said: Baroness Thornton: My Lords, I will be replying “There are currently no proposals to restrict packages of to this group of amendments which involves a re-ablement. It will be for councils to determine who might substantial discussion on reablement, including benefit from the intervention and whether it is appropriate to repeat this at a later date”.—[Official Report, Commons, 8/12/09; Amendment 24 from the noble Baroness, Lady col. 292W.] Greengross, Amendment 25 from the noble Baroness, In other words, people could be put through it at Lady Barker, Amendments 26 and 28 from the noble frequent intervals—not for their own benefit so much Lords, Lord Warner and Lord Lipsey, and the noble as for the local authority’s benefit, in the hope that the Baroness, Lady Murphy, Amendment 30 from the obligation to deliver free personal care might be avoided noble Earl, Lord Howe, and Amendment 34 from the following a further assessment of the person’s ability noble Baroness, Lady Greengross. The amendments to cope with the activities of daily living. Again, what deal with the Bill’s provisions on reablement. As has is to stop this unreasonable use of reablement from been clear from the discussion, they deal with different happening? aspects so it might be useful to touch on what reablement means to the individual and how it fits into the wider For some people, a process of reablement will do range of services on offer, and to explore the issues little or no good, and may even end up doing harm; raised by the noble Baroness, Lady Barker, about those nearing the end of their lives are one example. In intermediate care. At its heart is the intention to help some of these cases it will be possible to predict that individuals to maximise their ability to look after reablement will be burdensome and at best unlikely to themselves. be of more than temporary benefit. While I can readily We have sometimes talked about intermediate care accept that a refusal to undergo reablement will, in and reablement interchangeably. In essence, both many cases, debar a person from an entitlement to free reablement and intermediate care try to do the same care—and rightly so—there will be other cases where thing. They have the same objective of helping to a refusal is perfectly reasonable in the prevailing maximise a person’s abilities and independence, but circumstances. The noble Baroness illustrated one or come at the problem from different angles. Intermediate two of those examples. How will the system be able to care is often linked to people coming out of acute distinguish between those two types of case and what hospital care and returning to live in the community safeguards will there be for service users in that context? and there is often a health element to that care as well The Equality and Human Rights Commission has as social care. Reablement is a more preventive approach, developed that point further. It argues that some people identifying people at risk of having to go into hospital may not want or may not be able to accept or understand or residential care and putting in support to maintain that they need social care and support services because people’s independence to help them remain in the of impairment of their faculties, pride, their wish to community. That might include specialist help to rebuild remain independent or simply because they are in a person’s physical skills and confidence. To answer denial that they have become disabled and are in need the question asked by the noble Lord, Lord Best, of care services. In those circumstances, it cannot be reablement can be offered in a residential care setting. right for free personal care to be refused on the grounds The aim is to maximise that person’s independence. that someone had rejected a council’s package of It means often looking at how the home environment reablement. can support independence. Indeed, at an earlier stage Lastly, I am concerned that reablement should not of the Committee, we looked at the range of aids be withheld from someone merely on the grounds that and adaptations that might help people. Grab rails, the person’s carer has refused to take an active part in telecare, adaptations of showers, stair lifts and disabled the process. The fact that someone has an unpaid facilities grants transform the home environment. carer may or may not provide a useful means of Regardless of the terminology, what is on offer is support for a local authority in the way that reablement simple to understand—and it is widely supported and, is delivered to the person. But the active involvement indeed, it is already happening. The introduction of of the carer should never be made a precondition of this Bill will enable us to provide further funding of reablement if for any reason the carer does not want to £130 million to encourage more people to benefit. In 1207 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1208

[BARONESS THORNTON] I turn to Amendment 25 tabled by the noble Baroness, answer to the point raised by the noble Baroness, Lady Lady Barker. In its present form the Bill makes explicit Barker, this is not about substitution; this is about reference to, adding to it. “a process designed to maximise the person’s ability to live There is powerful evidence that reablement works. independently”. A research study by the University of York demonstrated We are calling this process reablement. The Bill allows that the benefits of reablement are not just immediate, regulations to be made that will give local authorities but are long lasting. This is why we believe that it is the discretion to use a period of reablement as one of such an important part of the Bill. Reablement and the criteria for determining eligibility for free personal intermediate care services of various kinds have been care. This does not mean that local authorities should developed in many parts of the country. We want to force everyone to undergo such a period of reablement. encourage councils to offer reablement to more people That is not our intention as in some cases reablement wherever that is appropriate and to make it a standard will be neither appropriate nor beneficial to the individual. part of how they support people’s needs, rather than However, many people can potentially benefit from assuming that care needs will stay the same or increase. reablement and we believe that local authorities should This is not about forcing people to do things, but be encouraged to make greater use of these services working with them and their carers and families to put where they are already available and established, and them in the best possible shape. We recognise that develop them further where provision is currently there will be some people for whom reablement is not lacking. appropriate, and we believe it is right to let councils New Subsection (4C) explicitly sets out the power have the flexibility to make sensible judgments about that will enable the Secretary of State to make regulations the individual circumstances in which it is appropriate to achieve this, which will be accompanied by detailed to offer it. Our guidance will address that issue. guidance on how local authorities should decide whether I want to address the specific points that noble or not reablement would be appropriate for the individual. Lords have made about the cost of reablement—it is The noble Baroness asked about a person’s means, £130 million—and we believe that this will mean that what happens when their money runs out, and when 130,000 people could benefit from reablement as part they will become eligible for free personal care. Continuing of the Bill. There is already money in the system to care is never means-tested. The Bill is designed to meet some of these needs. What we are doing now support those people who might well have already through the Personal Care at Home Bill is making used substantial personal means to support their care more money available to encourage councils to offer needs, so it will help to provide some relief for them. more support to more people. Current community My noble friend Lord Lipsey, the noble Baroness, care funding provides for aids and equipment. For Lady Barker, and the noble Earl, Lord Howe, all asked example, last year we invested £80 million to encourage about a person who is not willing to accept reablement, council investment in telecare and we allocated £168 million and whether that person could have their free personal for adaptations through disabled facilities grants. care withdrawn. That would be a very heavy-handed Amendment 24 in the name of the noble Baroness, tool. It is proposed that free personal care could be Lady Greengross, seeks to enable the making of refused only where the person had—I think that the regulations to require local authorities and PCTs to noble Earl said this—unreasonably refused that work together to assess needs and deliver reablement. reablement. That will be set out in regulations and is It is indeed important, of course, that local authorities an issue that would have to be treated with great and partners in health work together effectively to sensitivity.In choosing to refuse an offer that is reasonable, support people. I agree with the motives of the noble they could not be eligible for free care under the Baroness, Lady Greengross, in proposing this amendment. scheme and would have to make a contribution to the It is vital that local authorities and their partners work cost of their own care. However, it is a very sensitive together effectively. For the person who has a wide issue. In an earlier debate, we covered the issue of range of health and social care needs, it really does not carers and unpaid carers not being part of the assessment matter whether what they are receiving is a social care that would take place for free personal care. bath or a health bath. Indeed, that interface, as mentioned Amendment 26 in the— by my noble friend Lord Warner, is at the crux of much of the care that we want people to benefit from. We recognise that they have to work together effectively, Baroness Masham of Ilton: Will the Minister clear and if they do not it creates anxiety and is very up one point before she goes on to the next point? I am frustrating. not talking about those who refuse reablement; I am talking about those who are not suitable for reablement. In Putting People First, we have set out the cross- For instance, if they are too frail or too ill, will they government strategy to transform adult social care. then be able to get help, and who will decide that? We recognise how important integrated working is across these sectors, and, in fact, we gave £520 million to councils help them with that. We will be developing Baroness Thornton: Yes, they will as part of the guidance which recommends that local authorities assessment process. I was asked specifically about work with colleagues in NHS primary care trusts somebody who might refuse reablement. However, I where it is appropriate. An acceptance of the noble think that I said earlier that it would not be appropriate Baroness’s amendment, however, could force local to offer some people reablement. That will also be authorities to consult a primary care trust where, in covered in guidance. It is very important that the offer some cases, there may not be a need to do so. which is made to people is dealt with sensitively. 1209 Personal Care at Home Bill[1 MARCH 2010] Personal Care at Home Bill 1210

Baroness Barker: One of the difficulties with this Stakeholders at several consultation events over the legislation is that it covers two distinct groups of past few months have supported this approach. They people: disabled people who may be young and may welcome increased support for reablement, and we have a condition with which they will live for a considerable will use their comments regarding its implementation time—the whole purpose of this measure is to enable to further shape the content of regulations enabled by them to have the means to pursue fulfilling lives—and the Bill and the guidance on those regulations. older people who become ill for one reason or another. Amendment 28, in the names of the noble Lords, I noted the noble Baroness’s distinction about intermediate Lord Warner and Lord Lipsey, and the noble Baroness, care being provided to people who have been in hospital. Lady Murphy, is a very “House of Lords” amendment How many people is it envisaged will meet the FACS about whether one should substitute “maximise” with criteria who will not have been in hospital? We are “improve”. New subsection (4C) of the Bill refers to, talking about people who will be very ill and very “a process designed to maximise the person’s ability to live disabled even though they may not have had acute independently”. care. For very many older people who may or may not The noble Lords and the noble Baroness have suggested be eligible for care under this measure, simply maintaining that we should replace “maximise” with the word their ability to live independently at a level of operation “improve”. We do not feel that this best defines reablement. which is perhaps lower than it was before they were Improvement could mean only a small change in what ill—for example, if they have had a stroke—will be a may already be very poor circumstances. In fact, our good result. It is not about improving their ability to aspirations for reablement are that it should do better live independently because, for some of them, it probably than this. We want to help individuals to become as cannot be improved; it can only be maintained at a well as possible, not only to improve their status, but lower level. Is it the intention of this Bill, clumsily to maximise their ability to live independently. Therefore, worded though it is, to reflect that—that some people we think that “maximise” is a better fit than “improve” will not improve as a result of reablement, but will for what we understand reablement to mean. simply continue to be able to cope and perhaps at a reduced level? That is an important point to make and I think that I agree with the aim of Amendment 30, make clear for people who may be doing assessments tabled by the noble Earl, Lord Howe, and the noble in the future. Baroness, Lady Morris. Although reablement will have many benefits for the majority of people, we recognise Baroness Thornton: That is a very important point. that in some cases it would have limited or no benefit The noble Lady has raised two points. On the first, I and would not be appropriate, for example, for people can think of three people I know who are not in who are very frail or who are receiving end-of-life care. hospital, but who are definitely disabled. Whether We will place in statutory guidance advice around they would qualify under this scheme, I do not know. when reablement may or may not be appropriate, It is very unlikely that they would be in hospital unless along with advice on how a suitable package should be something acute happened, though there is no question developed with input from and consultation with the that they are disabled. The point about reablement is individual, their carers and any relevant health and that, if the reablement process—we will talk about social care professionals. “improvement” and “maximise” in a moment—actually Amendment 34, tabled by the noble Baroness, Lady enables that person to maintain the level of independence Greengross, would permit regulations to enable a local that they already have, it seems to me that that has also authority and primary care trust to offer a package of succeeded and would count. On the question about reablement and intermediate care to a person after the number of FACS-critical people who have been in they had stayed in hospital for more than one week. hospital, we have not collected that information in this All local authorities can already deliver packages of form. However, the noble Baroness makes a valid reablement, helping people to maximise their ability to point indeed. live at home independently. These packages are most Amendment 26, in the names of the noble Lords, effective when they include a range of interventions to Lords Warner and Lord Lipsey, and the noble Baroness, meet a person’s range of needs. A package of reablement Lady Murphy, would seek to change new subsection (4C). or intermediate care can, and should, involve a variety It would mean that any regulations which the Secretary of health and social care professionals, along with of State makes under subsection (4A) that give local other interventions, minor aids or adaptations. authorities functions relating to eligibility for free provision of personal care must specifically allow them We will be outlining in statutory guidance how we to use reablement as an eligibility criterion. I understand expect local authorities to develop a personalised package that this is a probing amendment, and I hope that I of reablement for individuals, and we will make it have answered some of the points, but we have been clear that the person receiving the package, along with clear from the start that the Bill must enable a two-pronged their carers, GP and other professionals, should be approach: providing free personal care to those with involved as necessary. We think that this is more the highest needs who are living at home, accompanied suitable for guidance than regulations but we accept by a period of intensive support or reablement for all the point made in the noble Baroness’s amendment. those who would benefit from such a package. We do not think that it is necessary to dictate the 4.15 pm content of the regulations in the Bill. The working We recognise the concerns that the noble Baroness, draft of the regulations, which has already been made Lady Greengross, expressed concerning dementia. We available to noble Lords, makes plain that advice believe that people with dementia can and should be around reablement will be included within guidance. able to benefit from reablement services. We need to 1211 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1212

[BARONESS THORNTON] Baroness Barker: I thank the noble Baroness for ensure that the guidance that goes along with the Bill that full answer. takes on board the issues raised in the dementia strategy and makes it clear that people with dementia should Baroness Greengross: I thank the Minister very have access to the appropriate equipment. much for her obvious commitment to the amendments The noble Baroness, Lady Murphy, commented on I put forward. I am sorry that she cannot accept them, long-term studies. We think that the reablement but I appreciate what she said and I shall think again component increases the amount available to all those about them. In the mean time, I beg leave to withdraw presenting for social care, and that it will reduce levels the amendment. of dependence and may well delay or prevent people needing intensive support. The intention is to focus Amendment 24 withdrawn. not just on this group; we believe that reablement has a role to play for a range of groups, including those with Amendments 25 to 35 not moved. dementia or a head injury. As I mentioned earlier, York University has already carried out some studies on this, and we will be assessing the situation in 12 to Amendment 36 18 months’ time. Moved by Earl Howe The Bill is about the free provision of personal care by local authorities and not the NHS. In any event, 36: Clause 1, page 2, line 12, at end insert— there will be some circumstances in which it will be “( ) The Secretary of State shall report annually to more appropriate for the service to be offered solely by Parliament on the compatibility of regulations made either the NHS or social care. We do not want to under this section with the European Convention on create fresh barriers, which some of these amendments Human Rights.” would bring about, to the most effective delivery of services to individuals. The forthcoming White Paper Earl Howe: My Lords, we come now to one of the will reaffirm our commitment to the health and social most important legal issues presented by the Bill, and care systems working together much more effectively that is its compatibility with the European Convention as part of a future reform of the care service. Therefore, on Human Rights. One of the most striking features I ask the noble Baroness to withdraw the amendment. of the Explanatory Notes is the length and complexity of the Government’s defence of the legality of the Bill Baroness Barker: Will the noble Baroness write to in relation to the convention. Of course it is very me with answers to the questions that I asked about helpful to see that defence set out in clear terms, but I intermediate care? I asked a number of such questions cannot remember another Bill where it has been necessary of the noble Lord, Lord Tunnicliffe, and I quite to do this to quite the same extent. The obvious understand why he did not answer them. However, in conclusion from this is that, even though the Government’s particular, I should like to have updated figures for the human rights justification may be correct in its bald number of people in receipt of intermediate care and terms, we are, nevertheless, on quite tricky legal ground. for the number of PCTs and local authorities that have We have already considered the issue of discrimination a named lead officer. That would be extraordinarily against deafblind people arising from the Bill and its helpful to Members of the Committee. regulations, so I shall not dwell upon those arguments a second time. Baroness Thornton: I apologise to the noble Baroness. The other type of discrimination to which the Bill I had marked up answers to a lot of her questions and potentially gives rise relates to residents of care homes. I believe I have now found some of them. The latest It would be perfectly possible for those people to argue figures show that 28,116 intermediate care places benefited that their personal care needs are every bit as critical 132,720 people between April and June 2008. Compared as those of someone who happens to be living at home with 1999-2000, the number of intermediate care beds and that this discrimination against them amounts to has doubled, and the number of intermediate care a breach of Article 14 of the convention, taken with places in non-residential settings has trebled. Three Article 1 of Protocol 1, which covers the right to times as many people are benefiting from intermediate peaceful enjoyment of possessions. Indeed, the department care. The NHS Plan aimed for an extra 6,700 places accepts that it is a prima facie breach of Article 14 to for intermediate care by March 2005—5,000 residential discriminate between one person and another on the and 1,700 non-residential—and today the NHS has basis of where each of them lives. Nevertheless, the delivered an extra 22,948 places. Government maintain that the different treatment of In her previous question, the noble Baroness raised people living at home is not discriminatory because the issue of the guidance. The original guidance has the policy underlying the different treatment pursues, been strengthened to include flexibility over the period “a legitimate aim in a proportionate way”. of an intermediate care episode—which I think is the As this is a framework Bill, an enabling Bill, it point that she raised. That will ensure that people with would be hard to argue that the Bill itself was incompatible dementia have access to intermediate care, with that with the convention. The issue, rather, is whether the care being commissioned across health and social policy to which the future regulations will give substance care, and that reablement services are part of the does indeed pursue a legitimate aim in a proportionate commissioned service, widening access to intermediate way. As regards the aim of the Bill, and the aim of the care to include all adult age groups, not just older regulations, it would be difficult to show that these people. were in any way illegitimate. So I shall not spend time 1213 Personal Care at Home Bill[1 MARCH 2010] Personal Care at Home Bill 1214 arguing that case. However, on the issue of proportionality, we cannot know how things will pan out in practice. there is quite a lot that we can say. The Explanatory We therefore have to plan ahead on the basis that Notes say: human rights compliance will need to be regularly “The key aim of the policy behind the Bill is to enable, support monitored. This amendment is designed simply to and encourage more people to avoid or delay entering residential ensure that that is done, and done in a way that is accommodation … It is considered that the proposals are visible to Parliament. I beg to move. proportionate as they are aimed at those people in highest need—the group of people who are most at risk of having to enter residential accommodation”. Lord Tunnicliffe: I thank the noble Earl, Lord Howe, The message that I take away from that is that, as for tabling this amendment because it caused me to long as the Government’s assumptions prove to be spend this morning studying that magnificent piece of correct as regards the number of people who are likely legislation introduced by this Government—the Human to benefit from the legislation, the policy is unlikely to Rights Act—and a fine piece of legislation it is too. breach the convention. The problem, it seems to me, The amendment focuses on the compatibility of the arises if the Government’s assumptions are not correct. Bill with the European Convention on Human Rights As we have said a number of times, the figures quoted and the requirements of reporting on that. As noble in the impact assessment come with a giant health Lords may be aware, the Equality and Human Rights warning. At best, they are an approximation; at worst, Commission helpfully produced a briefing on the Bill. they bear little or no relation to reality. So we need to I shall highlight some key points. I am very pleased ask: what would happen if the numbers of those that the commission broadly welcomes the Government’s eligible for free care in the home turned out to be commitment to provide personal care free of charge in much larger than the numbers postulated in the impact certain circumstances to people with the highest needs assessment? What would happen if local authorities and the additional investment in the wider social care are unable to make efficiency savings sufficient to system and acknowledges the importance of reablement. cover their share of the cost of delivering free care? In the commission’s view, the Bill does not discriminate What would happen if, as a number of councils are against those in residential care and the policy of arguing, it proves impossible to deliver free care to a providing free personal care at home is reasonably and satisfactory standard within the assumed cash limits? objectively justified as a proportionate means of achieving The Government’s assumption is that the time taken a legitimate aim, and is thus compliant with obligations to deliver help with four activities of daily living is under the European Convention on Human Rights. roughly one hour per service user per day, but some We recognise that the commission has some underlying councils are saying that it would be double that. What concerns about implementation and the impact on if they are right? others with social care needs should local authorities The money would have to be found from somewhere. not realign their services as a result of the Bill. We are It could be found from an increase in council tax. It committed to addressing these concerns as part of could be found from cuts in other local authority supporting councils to prepare for implementation budgets. It could be found from increased charges for and we hope that some of the debate in Committee personal care to those who are not receiving their care has gone some way to reassuring the commission. free. Or it could be found by reducing the amount of personal care being delivered to those same people. If 4.30 pm it is the last of these, we are in dangerous territory as Amendment 36 would require the Secretary of State far as the European convention is concerned. If local to report annually to Parliament on the compatibility authorities were to withhold personal care from people with the European Convention on Human Rights of who are in critical need but who require help with regulations relating to the provision of free personal fewer than four activities of daily living, or if they care at home. As the Bill states, it has already been were to withhold it from people with substantial care certified that in our view the Bill is compatible with needs or from people with care needs in a lower the European Convention on Human Rights, and a banding, it could well make those people decide to detailed, well read and thorough memorandum setting move into residential care rather than to be enabled to out the reasons for this has been sent to the Chair of stay at home. the Joint Committee on Human Rights. In that situation we could indeed see more people In addition, the committee requested further evidence receiving free care in their homes, but possibly fewer in relation to specific questions relating to the European people receiving care in their homes overall. Should Convention on Human Rights issues around the Bill, that occur, then a breach of Article 14 is a real which the Minister for Care Services responded to on possibility, because the Bill would have failed to achieve 29 January. We will give careful consideration to any its stated objective of enabling more people to avoid or points raised by the Joint Committee in its final report. delay entering residential accommodation. We would The Government already seek to ensure that any have spent a lot of money favouring one group of secondary legislation and guidance are compatible people at the expense of a larger group of people. It with the convention, as required by the Human Rights could be argued that the result would be a disproportionate Act 1998. The regulations which the Secretary of State way of pursuing the policy objective. will be enabled to make by this Bill, and any related In other words, ECHR compliance will be a matter guidance, will be no different in this regard. of fact rather than theory. With all the uncertainties The noble Earl, Lord Howe, asked why the note over the costing of the policy and all the worries being was so long. This is because of Article 14 of the expressed by local authorities about its affordability, convention. The words cannot simply be taken at face 1215 Personal Care at Home Bill[LORDS] Personal Care at Home Bill 1216

[LORD TUNNICLIFFE] Lord Lipsey: The Minister referred to the memorandum value from the article, but have to be related to former that was sent to the Joint Committee on Human Rights. judgments by the European Court of Human Rights In view of the fact that it is before that committee, will and to a similar judgment in the House of Lords the Minister assure us—I am sure he will—that no acting, as it was then, as the Supreme Court, in 2008, regulations will be laid under this Bill until that committee known as the RJM case. Essentially, he is quite right has had a chance to consider the Government’s to point out that this fails the first test of discrimination, memorandum and to offer its opinion to both Houses but it is justified by the argument that the policy is a on it? proportionate response to a need. To quote the memo: “The Department’s view is that the different treatment of Lord Tunnicliffe: My Lords, I am not sure that I am people living at home is not discriminatory. This is because the content with the conditionality of that statement, but policy underlying the different treatment pursues a legitimate aim I am certainly happy to advise my noble friend that we in a proportionate way.” expect the committee’s final report to be available It has been argued that this is okay, provided that within days: indeed, probably tomorrow. we are actually delivering the policy. I would not like to give the sense that we will not deliver the policy, as we believe that we will and that none of the traps or Baroness Masham of Ilton: My Lords, does the problems that have been used to illustrate the case will Minister agree that this gives strength to my amendment, occur. It is very important, on this legalistically technical which would ensure that people have a right to an point, to realise just how far the policy would have to independent appeal so that these matters can be sorted go before it was in any way threatened by the Human out at home rather than having to go to Europe? Rights Act, because the Act is about protecting individuals from an overbearing state. The Court has been particularly Lord Tunnicliffe: My Lords, I am trying to say that concerned that social policy should be an area where a the compatibility of the Act and its regulations with wide measure of appreciation is accorded to the state the convention is in no doubt. We do not think that by the Court, and I am told that “appreciation” is the extra reporting which the amendment would code for “latitude”. It was also noted that, where there require is justified. The Government will implement is a general rule, a line must be drawn, and it is for this Act in a way that will be compatible with the Parliament to decide where to draw it. convention. The House of Lords noted that social policy is an area where the Court should be very slow to substitute Earl Howe: My Lords, I am grateful to the Minister its view for that of the Executive, especially where the for his reply. He is correct; the Bill is compatible with discrimination is not on one of the express, or primary, the convention, but for the simple reason that it contains grounds. Even under the most difficult circumstances, very little. The regulations may well be compatible it is difficult to believe that the convention would be prior to their implementation. What is in question threatened. Nevertheless, we are concerned that this is whether the Bill and the regulations, in their policy should be successful, and we have already said implementation, will breach the convention because that there will be a review after 12 to 18 months. That of the unintended consequences that may ensue. review will need to assure itself that the policy is The Minister is right to advise the Committee that succeeding and is achieving proportionality. Through the European Court of Human Rights has been reluctant the process of looking at the Act and making sure all to intervene in social policy. However, I am advised the orders and regulations are compatible, I believe that a legal challenge that is based on the relevant there will be no risk that the Bill, its policy and its articles of the convention might well engage the Court’s implementation will be incompatible with the Human attention, should the effect of the Bill, contrary to Rights Act. intention, prove to be disproportionate. This question The amendment would impose an unnecessary must hang in the air, and we shall all be very interested requirement, particularly as the regulations are highly to read what the Joint Committee says. I am a little unlikely to change annually. Given the generality of sorry that the Minister could not answer his noble the Human Rights Act, which I have tried to describe, friend Lord Lipsey categorically, because, should the together with the fact that we will have a review and committee report adversely, the Government would that the Government are generally bound by the Human have every case for withholding any further action on Rights Act to implement policy in a way that is this Bill, although that may be unlikely in the compatible with that Act, I hope the noble Earl will circumstances. We can, however, take comfort from feel able to withdraw his amendment. the fact that the Government are committed to reviewing the workings of the Act within 12 to 18 months, Baroness Gardner of Parkes: What exactly did the which will give us the opportunity to look at these Minister mean when he said that the regulations are matters further. With that, I beg leave to withdraw the likely to change every year? Does he mean the regulations amendment. that we make in this country, or the European regulations? I am not clear. Amendment 36 withdrawn.

Lord Tunnicliffe: I think I said that they were not Amendments 37 to 43 not moved. likely to change. Either way, I was speaking to regulations made by the United Kingdom. The convention is a Clause 1 agreed. fairly steady piece of policy and is being developed more by case law than particularly by change. Amendment 44 not moved. 1217 Personal Care at Home Bill[1 MARCH 2010] Digital Economy Bill [HL] 1218

Clause 2 : Extent and short title I am not entirely certain what that means. The key concern with this clause is that it does not seem Amendments 45 to 47 not moved. necessary. It will, we feel, simply create confusion and overlapping functions. Could the Minister explain more Clause 2 agreed. fully quite why he thinks that this will not be the case and what is so wrong with Ofcom’s existing duties, House resumed. which include encouraging investment in infrastructure, that it is necessary to repeat this part of their duties? If Bill reported without amendment. the purpose is to underline this part of those duties, could it not have been done in a way that made the point without resorting to legislation? Mortgage Repossessions (Protection of The Government argued that the duty was needed Tenants Etc.) Bill because of, “the specific importance of investment in electronic networks at a First Reading time when many of our communication networks are being substantively upgraded”.—[Official Report, 6/1/10; col. 163.] 4.41 pm It would be helpful if the Minister could explain why the existing duty cannot deliver these upgrades. For The Bill was read a first time and ordered to be printed. instance, digital television switchover is already happening. It is being funded by the licence fee and, as far as I am aware, Ofcom does not have much of a role in the Digital Economy Bill [HL] process. I would imagine that radio switchover could Report (1st Day) happen in much the same way. I do not doubt that the regulatory environment needs to change to help to speed up investment in 4.42 pm next-generation broadband, but would it not have been better to identify which specific measures are Clause 1 : General Duties of OFCOM needed? Instead, we have this broad yet unfocused power that the Government are not entirely sure will result in much change. I am afraid that it looks as if Amendment 1 the Government are simply adding a duty to give the Moved by Lord De Mauley appearance of action. As with so many things, the Government’s response to a problem seems to be more 1: Clause 1, page 1, leave out lines 8 and 9 regulation. Unless the Minister can explain exactly what marks out the duty as necessary and distinct Lord De Mauley: My Lords, our Amendment 1 from an existing duty, there is no reason to include it would remove what we see as the most unnecessary in the Bill and there is certainly no reason for this part part of a clause that we on this side see little point in of the clause. I beg to move. having in the Bill at all. I will not go back over all our objections to Clause 1, which we laid out in Committee. 4.45 pm I will instead restrict comments to this amendment. The Parliamentary Under-Secretary of State, As was highlighted during the Committee’s consideration Department for Business, Innovation and Skills (Lord of this clause, and as was hinted at earlier, Ofcom Young of Norwood Green): My Lords, I made it clear already has a duty to encourage efficient investment in in Committee that new subsection (1A)(a) places a infrastructure, so could the Minister explain why we clear requirement on Ofcom to consider the need, need a new duty on top of the established one? What “to promote … investment in electronic communications networks”. difference will this new duty make? Will it not, as my There is a clear requirement on Ofcom to consider noble friend Lady Buscombe said, simply muddy the promotion of investment systematically.Currently, Ofcom waters? is required simply to have regard to the desirability of There could well be duplication and confusion from encouraging investment when it appears to be relevant Ofcom exercising its functions under the Communications in the circumstances. It is therefore a significant change Act 2003 and the duty that the Government have set of emphasis and an important change in the way in out in this Bill. We asked similar questions in Committee, which Ofcom carries out its duties. It would be incredibly but the answers were not enlightening. The Minister short-sighted of us to miss this opportunity to ensure argued: that the regulatory environment for these vital sectors “It is right that the regulator should be responsible for this”. encourages investment and growth. We agree but, as has been pointed out, under Section 3 Our policy objective as set out in the Digital Britain of the Communications Act 2003 the regulator is White Paper was clear that the general duties of Ofcom already responsible for this issue, so I am not reassured should be qualified by the need to promote investment. by this argument. More significantly, when addressing We concluded that the best way of achieving this was the specific question of whether the duty was needed, by the creation of a new Section 3(1A) (a), (b) and (c), and whether there would be any overlapping, the which place a specific requirement on Ofcom to, Minister argued: “promote … investment in electronic communications networks”, “It is necessary and there will be no duplication, because we when performing its principal duty. In light of the are doing this only once”.—[Official Report, 6/1/10; col. 155.] considerable debate that your Lordships have stimulated, 1219 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1220

[LORD YOUNG OF NORWOOD GREEN] Pilkington of Oxenford, L. Shaw of Northstead, L. we have considered how we could make the clause Plumb, L. Shephard of Northwold, B. clearer to address the matters raised. The result is a Ramsbotham, L. Skelmersdale, L. Rawlings, B. Stewartby, L. series of proposed amendments today—Amendments 2, Ryder of Wensum, L. Strathclyde, L. 3, 5, 6 and 7. The new wording clarifies how the clause Saltoun of Abernethy, Ly. Taylor of Holbeach, L. will work in practice. Seccombe, B. [Teller] Verma, B. Selborne, E. Waddington, L. As the right reverend Prelate the Bishop of Blackburn Selsdon, L. Wade of Chorlton, L. admirably said in Committee, maintaining the duty Sharples, B. Walpole, L. for Ofcom to promote investment in infrastructure and public service content so as to help to secure our NOT CONTENTS economic and social prosperity in the future, Acton, L. Giddens, L. Official Report “seems entirely sensible, even highly desirable”.—[ , Addington, L. Glasgow, E. 6/1/10; col. 161.] Adonis, L. Golding, B. Removing that obligation on Ofcom to promote Ahmed, L. Goodhart, L. investment in our communications networks of the Anderson of Swansea, L. Gordon of Strathblane, L. future would send an entirely wrong message about Andrews, B. Goudie, B. our commitment to such a programme of improvement. Archer of Sandwell, L. Graham of Edmonton, L. The duty will not cause confusion. It would not be Ashdown of Norton-sub- Grocott, L. Hamdon, L. Hamwee, B. right to state specific measures, but it is important to Avebury, L. Hannay of Chiswick, L. encourage investment when it appears to be relevant in Bach, L. Harris of Haringey, L. the circumstances. It is an important change of emphasis; Barker, B. Harris of Richmond, B. it is now a principal duty. I hope that in the light of Barnett, L. Harrison, L. that explanation the noble Lord will feel able to withdraw Bassam of Brighton, L. Hart of Chilton, L. [Teller] Haskel, L. the amendment. Berkeley, L. Haworth, L. Best, L. Henig, B. Lord De Mauley: My Lords, I thank the Minister Bilston, L. Hilton of Eggardon, B. for his response, but I am afraid that I have heard Bonham-Carter of Yarnbury, Hollis of Heigham, B. B. Howarth of Newport, L. nothing new today, so I should like to test the opinion Borrie, L. Howe of Idlicote, B. of the House. Bradshaw, L. Howells of St. Davids, B. Brett, L. Howie of Troon, L. Brooke of Alverthorpe, L. Hughes of Woodside, L. 4.49 pm Brookman, L. Irvine of Lairg, L. Butler-Sloss, B. Janner of Braunstone, L. Division on Amendment 1 Campbell of Surbiton, B. Jay of Ewelme, L. Campbell-Savours, L. Jones, L. Contents 73; Not-Contents 194. Chidgey, L. Jones of Cheltenham, L. Christopher, L. Jones of Whitchurch, B. Clark of Windermere, L. Jordan, L. Amendment 1 disagreed. Clarke of Hampstead, L. Judd, L. Clement-Jones, L. Kingsmill, B. Division No. 1 Clinton-Davis, L. Kinnock, L. Cobbold, L. Kirkhill, L. CONTENTS Cotter, L. Kirkwood of Kirkhope, L. Crawley, B. Lea of Crondall, L. Allenby of Megiddo, V. Hodgson of Astley Abbotts, Cunningham of Felling, L. Lee of Trafford, L. Anelay of St Johns, B. [Teller] L. Davidson of Glen Clova, L. Leitch, L. Astor of Hever, L. Howard of Rising, L. Davies of Coity, L. Lipsey, L. Attlee, E. Howe, E. Davies of Oldham, L. [Teller] Listowel, E. Bridgeman, V. Howe of Aberavon, L. Dean of Thornton-le-Fylde, Low of Dalston, L. Brooke of Sutton Mandeville, Howell of Guildford, L. B. McDonagh, B. L. Jenkin of Roding, L. Dholakia, L. Macdonald of Tradeston, L. Brougham and Vaux, L. Jopling, L. Drayson, L. McIntosh of Haringey, L. Buscombe, B. Lang of Monkton, L. D’Souza, B. McIntosh of Hudnall, B. Byford, B. Lawson of Blaby, L. Dubs, L. MacKenzie of Culkein, L. Caithness, E. Lindsay, E. Dundee, E. Mackenzie of Framwellgate, Cathcart, E. Lucas, L. Dykes, L. L. Chorley, L. Luke, L. Elder, L. McKenzie of Luton, L. Colwyn, L. Lyell, L. Erroll, E. Maclennan of Rogart, L. Courtown, E. MacGregor of Pulham Evans of Parkside, L. McNally, L. Craig of Radley, L. Market, L. Evans of Watford, L. Maddock, B. De Mauley, L. Mackay of Clashfern, L. Falconer of Thoroton, L. Mar, C. Denham, L. Marland, L. Falkner of Margravine, B. Martin of Springburn, L. Dixon-Smith, L. Marlesford, L. Farrington of Ribbleton, B. Massey of Darwen, B. Elton, L. Masham of Ilton, B. Faulkner of Worcester, L. Maxton, L. Fowler, L. Mawhinney, L. Fearn, L. Meacher, B. Freeman, L. Mayhew of Twysden, L. Filkin, L. Miller of Chilthorne Domer, Gardner of Parkes, B. Montrose, D. Finlay of Llandaff, B. B. Geddes, L. Morris of Bolton, B. Ford, B. Mitchell, L. Glentoran, L. Noakes, B. Foster of Bishop Auckland, L. Monson, L. Goodlad, L. O’Cathain, B. Gale, B. Montgomery of Alamein, V. Hanham, B. Onslow, E. Garden of Frognal, B. Moonie, L. Henley, L. Perry of Southwark, B. Gibson of Market Rasen, B. Morgan, L. 1221 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1222

Morgan of Drefelin, B. Soley, L. it has in mind the need for investment in public service Morris of Handsworth, L. Stair, E. media content and networks fit for ever increasing Morris of Manchester, L. Steel of Aikwood, L. demands and next-generation technologies, for the Murphy, B. Stoddart of Swindon, L. Neuberger, B. Stone of Blackheath, L. benefit of all and not just the companies involved. Northover, B. Strabolgi, L. The amendments in this group, I hope, make this Oakeshott of Seagrove Bay, L. Symons of Vernham Dean, B. clearer by setting out more clearly what is meant by O’Loan, B. Taylor of Blackburn, L. the words “efficient investment”. This is, in the broadest O’Neill of Clackmannan, L. Temple-Morris, L. Patel of Blackburn, L. Tenby, V. sense, what we generally refer to as economically Pendry, L. Teverson, L. efficient, taking into account the benefits to investors, Peston, L. Thomas of Walliswood, B. consumers and wider society. This definition therefore Pitkeathley, B. Thomas of Winchester, B. now captures investment that is efficient in commercial Plant of Highfield, L. Thornton, B. or social terms. Investment in public service media Ponsonby of Shulbrede, L. Tomlinson, L. Prosser, B. Triesman, L. content, for example, would be efficient if the social Puttnam, L. Tunnicliffe, L. benefits to citizens outweighed the cost of providing Ramsay of Cartvale, B. Turner of Camden, B. the content. Razzall, L. Wall of New Barnet, B. A question was also raised as to whether the reference Rea, L. Wallace of Saltaire, L. to “appropriate levels of investment” was appropriate. Redesdale, L. Walmsley, B. Rendell of Babergh, B. Walton of Detchant, L. We have looked again at this. Consequently, we are Rennard, L. Warner, L. proposing amendments to paragraphs (a) and (b), Roberts of Llandudno, L. Warnock, B. which will require Ofcom to consider whether it would Rogan, L. Watson of Invergowrie, L. be appropriate to promote investment per se, rather Royall of Blaisdon, B. Wedderburn of Charlton, L. than require it to make a specific judgment on the level Sawyer, L. Whitaker, B. Scotland of Asthal, B. Whitty, L. of investment that would be appropriate in a given Sewel, L. Wilkins, B. instance. Sheldon, L. Williams of Elvel, L. Finally, there was uncertainty about how this new Shutt of Greetland, L. Williamson of Horton, L. subsection relates to the existing provisions in Section 3(4) Simon, V. Woolmer of Leeds, L. of the Communications Act. To put this beyond doubt, Slim, V. Young of Hornsey, B. Smith of Clifton, L. Young of Norwood Green, L. the intention is to require Ofcom to give precedence to Smith of Gilmorehill, B. Young of Old Scone, B. the need to promote investment where there is a tension between this need and the subsection (4) matters. 5.02 pm I hope that noble Lords will agree that these amendments make the intention of the clause clearer and that they appropriately reflect the need for Ofcom Amendment 2 to promote the interests of citizens and consumers. I Moved by Lord Young of Norwood Green therefore ask your Lordships to support these amendments. I beg to move. 2: Clause 1, page 1, line 8, leave out “appropriate levels of” Lord Howard of Rising: My Lords, it is a pleasure to see that the Government have listened to some of Lord Young of Norwood Green: My Lords, Clause 1(2) the concerns that the House raised during the drafting of the Digital Economy Bill requires Ofcom in performing of Clause 1. There are still issues with the clause, but I its principal duty to have particular regard in all cases will save those worries for my amendments. For now, to the need to promote appropriate levels of investment I shall turn my attention to the amendments proposed in electronic communications networks in public service by Her Majesty’s Government. I am grateful for the media content and to have regard to the need for the explanation provided in correspondence by the Minister investment to be efficient wherever possible. regarding the Government’s thinking on these In Committee, a number of your Lordships questioned amendments. As he said, they have had to go back to the meaning of “efficient” investment and the suitability the drawing board on the specific issue of efficient of the phrase “appropriate levels of investment”. Certain investment. I was slightly worried that by addressing of your Lordships were also concerned that the clause, one concern, the Government may have raised others, as written, failed to address what they saw as the but I hope that this debate can lay those to rest. failure of Ofcom to fulfil its duties to citizens. We have This clause now states that Ofcom will promote looked at whether changes to the wording of the investment in “electronic communications networks” subsection might be improved to reflect the Government’s and “public service media content”, where appropriate. intention and we are, as a result, proposing a package That is an important distinction. However, it throws of changes to new subsection (1A) that I trust will up a number of important questions about the meaning meet the concerns raised in Committee. of the word “appropriate”, which were not dealt with I want to make it clear that Ofcom’s principal in Committee. For instance, who decides when an consideration when making any decision must be the investment is appropriate? By what criteria will such interests of citizens and consumers. The new duty is an investment be judged? Will investment be considered an aspect of that obligation. We are not introducing a appropriate if it leads to faster broadband speeds, power for Ofcom to impact on individual companies’ greater profits for a company or greater competition investment decisions. Instead, the provision is intended in the market? Depending on what criteria are used to to ensure that, as many of your Lordships argued in define “appropriate”, the outcome could be markedly Committee, when Ofcom is taking regulatory decisions different. 1223 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1224

[LORD HOWARD OF RISING] just does not feel right in Amendments 2, 3, 5 and 6. I The Minister wrote to the noble Lord, Lord Mitchell, want to tell noble Lords the reason for this, which is regarding these amendments, stating that, generic to this industry. “unlimited investment in all features of an electronic communications I learnt something new this weekend. I came across network will not always be appropriate”. a new word: exabyte. I have never heard that before. I agree. There are always other considerations that will An exabyte is a billion gigabytes, or a billion billion need to be taken into account in determining whether bytes—it is a pretty big number. In 2005, mankind the investment is justifiable on public policy grounds. created 150 exabytes; in 2010, 1,200 were created. So, The Minister referred to those of those a few moments over five years the total amount of data created on ago. Some clarity on the Government’s definition of earth went up by a factor of 10, and I suspect the rate appropriateness would be helpful, not least for the of increase is going to continue on an exponential regulator who will need to balance these new duties basis. If we were standing here in two or three years with existing ones. perhaps we would need another word for a thousand The addition of the phrase, exabytes. I do not know whether there is such a word; “taking account of the interests of citizens and the interests of maybe there is. consumers in relevant markets”, Even since the Digital Economy Bill was introduced presumably ensures that the interests of consumers in your Lordships’ House three months ago there have will be considered when determining the appropriateness been many changes. We have had two major exhibitions of an investment. But what other factors should be in the world: the Consumer Electronics Show in Las considered? Perhaps I am in danger of reading too Vegas, and a month later the GSM Mobile World much into this, but I cannot help thinking that “where Congress in Barcelona. At both those events, major appropriate” could just be a generic phrase that gives new products were introduced which were dramatic the regulator enormous leeway in making its decisions. and will change the face of the whole industry. There There is a danger that such leeway could create uncertainty have been smart phones, tablets, and of course a for the industry, as businesses will find it difficult to month ago Apple announced its iPad tablet. On the know how the duty will be interpreted. subject of Apple, last week it recorded 10 billion All organisations need certainty and a clear and downloads from iTunes—nearly two for every person level regulatory playing field. The telecommunications living on this earth. As I mentioned once before, there sector is no different, and given the amount of investment have been 3 billion downloads of apps for the iPhone. required to upgrade the country’s communications Convergence, about which we have talked many times networks and the length of time required for a return in this House, is now a factor of life; it is happening at on such an investment, anything that muddies the a very dramatic rate. Also since the Bill was introduced, waters or causes doubt should give pause for thought. we have heard that in the United States, AT&T’s Is the Minister confident that the addition of “where network has been struggling with the amount of data appropriate” will not lead to uncertainty—uncertainty required, and O2 has reported problems coping with that threatens the investment this duty is designed to the amount of data on a broadband basis or mobile promote? Finally, can he reassure those of us who network basis. remain unconvinced that this clause is needed at all To return to the word “appropriate”, I want to that these amendments significantly enhance those make the point that I do not like the tone of the word. duties that Ofcom already has? It does not feel right. It feels, as the Minister himself said in a meeting with me, as though the word is limp. It certainly does not capture the change that is taking The Earl of Erroll: My Lords, I very much welcome place in this industry. It would be more appropriate if these government amendments, and particularly we were talking about agriculture or the steel industry, Amendments 2 and 3. It is primarily lack of investment but the IT and mobile industry is changing so fast that in much of the infrastructure, particularly in local and we need something that recognises that change more, rural areas, that has given rise to Amendment 9A to dare I say it, appropriately. which I will speak later. The amendment stands in the name of the noble Lord, Lord Laird, and I would have added my name to it if I had not been away. I am sorry 5.15 pm about that. Lord Young of Norwood Green: My Lords, we seem I welcome Amendment 7 which will remind Ofcom to be halfway towards pleasing the House if not of its duty to take into account the interests of citizens. completely there. I am pleased that we have made It is all too easy to think of these things in terms of some progress in trying to address the problem. I business and profitability, but there comes a point would say to my noble friend that he should take the when we must invest in infrastructure. It will not amendments as a whole. The previous amendment necessarily be seen to be efficient in business terms to elevated the role of Ofcom to ensure that investment start with, but we will get huge rewards further down in electronic communication networks was one of its the line and in other areas of life which may not be principal duties, which is an important change. I have strictly relevant to the communications market but been trying to get something helpful rather than a will be relevant to many other markets. legal definition that might engender more of a collective groan than anything else. Lord Mitchell: My Lords, my noble friend the Minister However, this is not about particular investment has addressed many of these issues, but I still have a decisions but about the creation of a regulatory climate concern over “appropriate”. In some ways it sticks—it that encourages investment. I know that that is what 1225 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1226 my noble friend Lord Mitchell wants to do. He seeks sure that the aim is not intended to be so broad, but to encourage investment in an environment where, as it is what the definition provided in this Bill could he eloquently described to us, demand is exponential. lead to. What is interesting is that so far, and there is no room The Minister argued in his letter that we need to for complacency, we have managed to meet that demand. give Ofcom sufficient flexibility to take into account We know that there are other things we need to do in new forms of public service media content. The need terms of the UK providing universal broadband and to allow public service broadcasters to invest in distributing super broadband and we are focusing on those areas. public service content in new ways, notably through I also want to make it clear in relation to the the internet, is understandable. However, surely what concern of the noble Lord, Lord Howard, that Ofcom’s the internet shows is that public service content online principal consideration when making any decisions is very much alive and well. The whole point of the must be the interests of citizens and consumers, and internet is that services spring up where there is a the new duty is an aspect of that obligation. We are demand for them. Excellent work is created without not introducing a power for Ofcom to impact on Ofcom promoting investment. individual companies’ investment decisions. Instead, I therefore urge the Minister to think again about the provision is intended to ensure that, as many of whether such a duty is necessary and, more importantly, your Lordships argued in Committee, when Ofcom is whether such a broad definition of public service taking regulatory decisions it has in mind the need for media content will not make the duty so unwieldy as investment in public service media content and networks to become meaningless. I beg to move. fit for ever-increasing demands and next-generation technologies—to take up the point made by my noble The Deputy Speaker (Lord Brougham and Vaux): If friend Lord Mitchell—for the benefit of all and not this amendment is agreed to, I cannot call Amendments 5 just the companies involved. I have endeavoured to or 6. address those concerns and, in the light of that, I hope that noble Lords will support the amendment. Lord Fowler: I should like to echo one or two of the points that my noble friend has just put. Exactly Amendment 2 agreed. like him, I seek guidance on what this section means. As the noble Lord knows, I am a strong supporter of public service broadcasting—not just the BBC Amendment 3 but Channel 4, ITV and the other public service Moved by Lord Young of Norwood Green broadcasters—so there is absolutely no question of 3: Clause 1, page 1, line 9, at end insert “, where appropriate” my not supporting it. What I do not understand is the duty placed on Ofcom, Amendment 3 agreed. “to promote appropriate levels of investment in public service media content”. That is what I do not understand—the promotion. Amendment 4 For once we are not talking about what is “appropriate” Moved by Lord Howard of Rising but about what “promote” actually means. Does it 4: Clause 1, page 1, leave out lines 10 and 11 mean that it is the duty—or that it is possible or conceivable—that Ofcom could push for more public spending, so that more money could be spent in this Lord Howard of Rising: My Lords, this is a probing area? If it does mean that, does it not bring it smack amendment to seek clarity about what the Government up against the department that is responsible for spending? are trying to achieve with this part of Clause 1 and, In other words, there would be a divided voice. You more significantly, to try to understand what the may well find the department takes one view and implications will be of the new definition of public Ofcom takes another. Perhaps that is not the intention. service media content. The Minister was kind enough However, it is such an extraordinarily wide definition to write to me following our debate on this topic in that it seems that Ofcom would be entirely entitled to Committee. In his letter, he confirmed that the take whatever view it wanted as a result of this. Government’s new definition of public service media The most useful thing that the Minister could do is content could include blogs, to give us examples of what this section means in “to the extent that these contribute to the public service objectives practice. In other words, what does promoting appropriate set out in section 264(6)”, levels of investment in public service media content of the Communications Act. actually mean when it comes down to it? That would As I pointed out in previous debates, these objectives be very much for the convenience of the House. include a wide variety of topics, ranging from religious and educational topics to entertainment and comedy. Lord Davies of Oldham: My Lords, I am grateful to As such, it could be argued that almost any website the noble Lord, Lord Howard of Rising, for introducing where an individual has editorial control could fall this amendment and to the noble Lord, Lord Fowler, under these objectives—anything from the obvious, for his comments. It will already have been recognised such as newspaper sites and political blogs, to comedy, in our debates on the two preceding groups of show reviews or even online video games. amendments that the Government have listened carefully Is it the Government’s intention that Ofcom should to the anxieties that have been expressed in parts of promote investment into almost anything on the internet? the House about this issue. We have sought to respond It is hard to see how this will work in practice. I am as constructively as we can. 1227 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1228

[LORD DAVIES OF OLDHAM] we had in Committee. I hope, therefore, that that is When we spoke about the issue in Committee, we regarded as progress. I emphasise that we cannot made clear the importance of placing consideration of predetermine the form and delivery of public service the need to promote investment in public service media media content in every respect in the years to come. content as one of the most important qualifiers of This is obvious from the rapid changes which have Ofcom’s principal duty. We made it clear that paragraph arisen from digitalisation over the past decade. It is (b) places a clear requirement on Ofcom always to important that Clause 1 gives Ofcom sufficient flexibility consider the impact of its decisions on the need to to take into account new forms of public service invest in public service media content. media content provided by means of the internet, Public service media content aims to fulfil the specific where it is appropriate to do so. objectives set out in the Communications Act 2003 for I emphasise—at least to allay, if I can, the concerns the benefit of the public. The noble Lord, Lord Fowler, of the noble Lord, Lord Howard; and I think that I is undoubtedly an authority on that Act, and I have no will probably be able take the noble Lord, Lord Fowler, doubt the noble Lord, Lord Howard of Rising, is with me on this point, though I may be presuming too becoming one. Certainly, I recall that the noble Lord, much—that Ofcom will be required to consider the Lord Fowler, spent a great deal of time debating these need to promote investment in public service media issues when the Communications Act was eventually content only when performing its principal duty as passed in 2003. The specific objective set out in that identified in the 2003 Act—and nothing in this Bill Act is the benefit to the public. That objective is highly detracts from it—to further the interests of citizens valued by viewers and listeners and has clear social and consumers as it carries out its functions. That is and economic benefits for the UK. Plurality of public the context in which Ofcom will continue to act. I service media content drives healthy competition with hope that the noble Lord will therefore feel that the the BBC—I am sure that that will commend itself to Government’s case is made out, against the background the noble Lord, Lord Howard of Rising, and to his of the emendations that we have made by the previous noble friend—and with purely commercial content. government amendments, and that he can safely withdraw I emphasise that, in fulfilling this obligation, Ofcom his amendment. is not taking on new powers. This is a clarification of the powers that Ofcom has under the Communications Lord Fowler: Do I understand from the Minister’s Act in circumstances where, from time to time, the remarks that the answer to my question is yes—that changing nature of media presents real and obvious Ofcom can in fact advocate more public spending in anxieties. Changes to the market in recent years threaten this particular cause? aspects of public service media content. I know that Lord Davies of Oldham: Yes, my Lords; but Ofcom, the noble Lord, Lord Fowler, and the House committee of course, operates within the constraints established that he chairs have drawn attention to these matters in existing legislation. On the noble Lord’s suggestion when we have debated these points in the House on that this might give rise to tensions between the department the broader issue of broadcasting policy. and Ofcom, I have no doubt that in an extreme case, We consider that Ofcom’s existing duty to consider, where the issue was of such substance that Ofcom was where relevant, the desirability of promoting the fulfilment convinced of very substantial investment being necessary, of the purposes of public service broadcasting no it is inconceivable that the Secretary of State and his longer goes far enough. We risk losing plurality in department would not be clearly aware of such issues certain genres of public service content. We are not and would not be very much part of the public debate seeking to make Ofcom intrusive but to see that it is which had identified the nature of the threat to the placed to evaluate where it can encourage investment public of the loss of plurality of services. It is not as if, and where loss of plurality would be a cost to society. I under this Bill, Ofcom is operating in a vacuum in know that the noble Lord, Lord Howard of Rising, which wider considerations are not taken into account. sometimes needs persuading on this point, but we are In fact, as we have indicated all along, Ofcom is to concerned to emphasise that economic benefits must take firmly into account the interests of citizens and include social benefits for the community in terms of consumers. The noble Lord, Lord Fowler, would be access to a plurality of sources of provision. It would the first to identify the fact that when we ask Ofcom to be detrimental to society and to the industry if we saw do that, we expect it to be all too well aware of the erosion take place in that regard, and Ofcom would points being made by Ministers, by informed opinion have no powers to respond to it. The House will in the other place, and, dare I say it, by informed appreciate that the Bill seeks to project the discussion opinion in this place too, of which the noble Lord’s and the necessary provisions into the immediately committee might be an important part. foreseeable future and the more distant future. We want to see Ofcom adequately equipped to fulfil its Lord Howard of Rising: I thank the Minister for his obligations in that context. Clause 1 therefore strengthens reply. I also thank my noble friend Lord Fowler for Ofcom’s existing duty under the Communications Act his support; it is always nice to have support from and makes a firm commitment to the need to promote such a knowledgeable and distinguished source. If we investment in our public service media content. take it that we accept the investment need and the desirability of the investment, as explained by the 5.30 pm Minister, it seems that in seeking to improve the width A few moments ago, we sought from the government and breadth of what Ofcom can do, the Government side to clarify the meaning of this clause by additional may have gone too far. I can understand the requirement amendments, which is a reflection of the debate that to maintain plurality, but if the Minister reads through 1229 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1230 my remarks he will see that they could be interpreted said something about the desirability of that practice. as applying to all sorts of things that might be miles Locking customers in to essentially uncompetitive services away from what the Minister and the Government are is something which Ofcom ought to be taking into thinking of. Perhaps he would like to give that some account. Instead, it seems to be totally focused on thought, but in the mean time I beg leave to withdraw wanting British Telecom and other voice over internet the amendment. providers to be able to make substantial profits because it sees it as a young industry. I do not think that it is a Amendment 4 withdrawn. young industry; it is becoming a pretty old and universal industry now. Ofcom ought to be coming back to say, “Right, you’ve grown up, lads. Now there is a grown-up Amendments 5 to 7 set of rules for you to obey”. Moved by Lord Davies of Oldham Even in mobile telecoms, which is a pretty mature 5: Clause 1, page 1, line 10, leave out “appropriate levels of” industry, you find some strange practices in this country. 6: Clause 1, page 1, line 11, after “content” insert “, where Several of the operators will charge you £1.50 to appropriate” access a competitive directory enquiries service, whereas 7: Clause 1, page 1, line 12, leave out “, wherever possible” and in France, where the authorities have taken action, the insert “(taking account of the interests of citizens and the interests mobile telecom operators impose a mark-up of about of consumers in relevant markets)” 15 per cent on the price charged by the directory service provider. It is something like four times as high Amendments 5 to 7 agreed. in this country, which is due entirely to the fact that Ofcom has refused to do anything about it. It seems to me that Ofcom should be reminded that it has a real Amendment 8 duty to the customer and that there are real problems Moved by Lord Lucas here which it ought to be moving gently and sensibly to sort out. It is a major force and has a lot of power. 8: Clause 1, page 2, line 2, at end insert— It does not need legislation or litigation to deal with “( ) After subsection (4)(e) insert— these problems. All it needs to do is to come out and “( ) the desirability of encouraging competition in electronic say that it finds these practices undesirable. Over time communications services provided over communications they will go because otherwise, as I am sure the networks; industry realises, there will be legislation or litigation ( ) the needs of the emergency services and the providers of to make sure it happens. However, Ofcom absolutely critical national infrastructure;”.” has to stand up for the consumer in these sort of cases. Lord Lucas: My Lords, this amendment brings The second part of the amendment deals with the forward some issues that we discussed at length in provision of spectrum to the emergency services. I am Committee. There are two quite separate issues. The afraid that I have had a very unsatisfactory letter from first reflects a debate, which the Government have Ministers on this. My basic case is that we know that dealt quite well with in their Amendment 6, on the fact at some stage there will be a demand for additional that we needed to remind Ofcom of its duty to citizens spectrum for the emergency services. It is not there at and customers. the moment because they do not have the budget, and One particular illustration of that—which struck they do not have the budget because budgets are being me as we were doing research for the Committee and squeezed everywhere. However, it is clear that the which I would like the Government to take account of situation in which the emergency services operate on in the first part of this amendment—is the way in kit whose concept is 10 to 15 years old cannot last. which Ofcom has chosen to deal with various electronic The capacity and capability of mobile telecommuni- communications service monopolies or effective cations have vastly increased and look set to increase monopolies. One of the fundamental purposes of Ofcom further. When we come to the point—perhaps five ought to be to stand up for the consumer where we, as years in the future—when we feel prosperous again a Government, and it, as Ofcom, have allowed effective and decide that the provision we make for our emergency monopolies to be created. These are monopolies like services should be stepped up, we should have the Microsoft’s operating systems. I see that the European capacity to do so. In their letter to me, the Government Commission has had a hand in unlinking Microsoft recognise that this is likely to be around the 1-gigahertz from Internet Explorer and letting the other browser point in the spectrum—the bit of the spectrum which producers have wider access to Microsoft’s customers. has been freed up by the digital dividend and which is This sort of effective monopoly comes from having being looked at in a European context for harmonisation. taken one decision and then being bound into others, It is the bit of the spectrum which Ofcom is determined which is current in bits of the communication market. to sell as quickly as possible to the highest bidder. I give two examples. If you are a subscriber to Therefore, when we reach the point when we want to British Telecom’s voice over internet services, you will do something for our emergency services, we will have find that you are excluded from all but their own to put them in another bit of the spectrum, and the kit directory enquiries. You actually cannot get through that we have to buy for them will be a great deal more to their competitors at all—the numbers are blocked— expensive because it will have to be arranged specially. whereas we have been to considerable lengths, in other There will be no opportunity, as there has been with spheres, to make sure that people had equal access to the current system, for our industries which supply the all the competitors on landlines. It is time that Ofcom kit to market that kit world wide. 1231 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1232

[LORD LUCAS] been said, the emergency services aspect of all this is The current system has been a tremendous success. absolutely crucial. During our mini crisis with the Taking standardisation forward for the current emergency snow and so on, a number of areas were failed by a services spectrum, we have been able to sell the kit that lack of resources and a lack of megabytes. Therefore, I we produced for ourselves to a very large number of am very much in favour of the amendment. Together other countries. That has been a great boon to British with the noble Earl, Lord Erroll, I hope that the industry, which is very much in the lead in this sector. Government will take this matter equally seriously, However, the Government are refusing to recognise realise how much support there is for it and perhaps that. They say that they want to sell the spectrum for bring back an amendment of their own. which they can find a commercial demand now and set nothing aside for the future emergency services spectrum. That seems to be a dangerous and muddle- Lord Howard of Rising: My Lords, there is a lot of headed approach. I do not think that they will have sympathy from these Benches for much of the amendment. time to do it before the election, so perhaps it will be A lot of the debate about how we best equip this their successor who has control over this. I believe that country for the digital economy has been focused on one function of government, and therefore one function investment in infrastructure. Although it is important of Ofcom, ought to be to have regard to our long-term that the necessary infrastructure is in place, particularly requirements as a nation regarding the spectrum that for the next generation of broadband, what will drive we want to use for our national security and our demand for increased broadband speeds are the services emergency services. Subordinating that to short-term that can be delivered. There is therefore some sense in commercial interests seems extremely foolish. I beg ensuring that Ofcom gives regard to the promotion of to move. competition in electronic communications services. I am always reluctant to add to a regulator’s duties The Earl of Erroll: My Lords, I support the amendment unless there is a specific problem that needs addressing, wholeheartedly, especially the part concerning the and I should be interested in hearing the Minister’s emergency services and spectrum for the critical national view on whether this is indeed the case. infrastructure. Sometimes we forget that the utilities Finally, I want to deal with the second part of the such as electricity and water, on which we are totally amendment regarding the emergency services and critical dependent, rely on telecommunications for their national infrastructure. It seems obvious that our infrastructure and that, as sophistication increases communication networks must be able to serve those and control systems get better, they, too, will need a two critical areas. We must be aware of any potential larger bandwidth. If we do not start reserving this at a problems with either the emergency services or our strategic level, it will get sold. national infrastructure. I only ask whether Ofcom is The big challenge at the moment concerns the huge currently equipped to do such a job. As a largely shortfall in finance at government level. Whichever economic regulator, I wonder whether it has the necessary party, or perhaps coalition, is in power after the next skills for this particular role. I look forward with election, one easy way to try to raise money will be to interest to hearing what the Minister says. sell a full spectrum quickly. However, this is not a vote-catching issue. As the noble Lord, Lord Lucas, said, we will wake up at some point in the future to Lord Young of Norwood Green: My Lords, this find that, instead, we are faced with a huge expense amendment is in two parts, and the first part concerns because this spectrum, under the guise of efficiency, the duties of Ofcom in relation to competition and the market forces and so on, has been sold off. desirability of encouraging competition. I did not I, too, have received letters saying that the Government’s quite recognise the world that was being described. I approach to this at the moment is totally inadequate. I see a world where there is a lot of competition in hope that the Government will listen and include relation to broadband services and telecoms and mobile something at Third Reading or when the Bill goes services. Should we be complacent? No, we should through the Commons in order to protect with absolute not, for some of the more complicated reasons addressed certainty the spectrum that will be needed for international by the noble Lord, Lord Lucas. co-operation, for our emergency services and for our However, I stress that with respect to every decision critical national infrastructure; otherwise, one morning it takes, Ofcom must, where it is the appropriate we may wake up to find that there is no electricity. means of furthering the interests of consumers, promote competition in the markets that it regulates. Furthermore, 5.45 pm Ofcom must, in any event, consider the desirability of Baroness Howe of Idlicote: My Lords, I supported promoting competition in those markets. Therefore, it this amendment, or one very similar to it, in Committee. has an emphatic duty in that regard. Again, if one The more I have heard the noble Lord, Lord Lucas, looks at the range of service providers in internet expand on this amendment and the more information services and telecoms, both fixed network and mobile, I have received from other sources, the keener I am to one sees—without suggesting that we should be support it. The example of Microsoft being “encouraged” complacent—a wealth of evidence of real competition. by Europe to open up to competition is absolutely as it In addition, Ofcom addresses anti-competitive practices should be. Those of us who live in areas with very and agreements. Indeed, this underpins the majority poor broadband provision are aware of just how much of its work. Therefore, if we have the kind of scenarios competition is needed to ensure that the latest methods that the noble Lord, Lord Lucas, described, they gain ground to the benefit of us all. However, as has clearly need to be referred to Ofcom. 1233 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1234

It is therefore not clear just what the proposed Lord Lucas: I thank the Minister very much for that amendment would add, and, on that basis, the reply. I think that he has convinced me that this Government cannot agree with it. I tend to agree—I amendment should not go into the Bill. On the first do not always—with the noble Lord, Lord Howard, part, I am clear that the matter is already there to his that we would not want to extend Ofcom’s powers if satisfaction in the current legislation, and I think that there were not the need for it. I absolutely agree that it we both agree that this is merely a question of Ofcom is about driving demand for broadband services, and not performing as it should the duties that it already that is what it has been doing pretty well. has. So I shall continue to badger Ofcom about that. When it comes to the allocation of spectrum, there is a On the second part of the amendment, my substantial division between us; but it is not a division understanding is that the noble Lord, Lord Lucas, is for this legislation but a matter of the policy to be concerned to ensure that Ofcom considers the spectrum pursued by the Government in the long-term interest needs of the emergency services and providers of of the nation. I do not see, for all his professing the critical national infrastructure. I stress that Ofcom supremacy of the requirements of national security already has a duty under Section 3(4)(f) of the and so on, that the actions he is allowing Ofcom to Communications Act to consider, take fit in with that. For now, however, I beg leave to “the different needs and interests … of all persons”, withdraw the amendment. when considering spectrum use. Importantly, this includes Amendment 8 withdrawn. the needs and interests of the emergency services and providers of critical national infrastructure. I understand and take the point made by the noble Earl, Lord Amendment 9 Erroll, about the way in which our infrastructures control their own networks, so that there will be more Moved by Baroness Buscombe requirement for spectrum. However, Ofcom already 9: Clause 1, page 2, line 14, at end insert “, excluding online has a duty to consider that. As I think we made clear newspaper and magazine websites” in a previous debate, consultation is already taking place. Baroness Buscombe: Let me begin by once again The Secretary of State will, where he considers it declaring my interest in this matter as chairman of the appropriate, use the power given to him by the Wireless Press Complaints Commission and making it clear Telegraphy Act to require Ofcom to make spectrum that I am not here to represent or support the newspaper available for certain uses or users. Therefore, we consider industry. My interest relates wholly and directly to the that no amendment is needed to give effect to the crucial issue of self-regulation or, as I would prefer to intentions of the noble Lord, Lord Lucas. We do not call it, regulation that is entirely independent of the see a scenario in which Ofcom blithely goes ahead and state. disposes of all the spectrum in a grand sale or auction. My concern is to ensure that the Bill does not I do not think that we will ever see quite what we saw diminish the freedom of the press and magazine industry on third generation—but who knows? However, it to publish news online that may be partial, including certainly does not have the power to do that without news where there is a person exercising editorial control considering the requirements of the emergency services over that published material. I am grateful to the and critical national infrastructure. Minister for taking the time to discuss this matter with I can offer the noble Lord an assurance that if the me between Committee and Report. emergency services have a robust case for additional The issue is a thorny one. I accept without reservation spectrum which they are unable to source from the that, where news is disseminated by what can be market, a process exists to address that need. Ensuring clearly defined as public service broadcasting, the public safety—to address the concerns of the noble provision of that news must be subject to the usual Baroness, Lady Howe—would be a paramount rules of impartiality. What is not clear in the Bill is the consideration in that process. situation with regard to newspaper and magazine websites, which are not regulated by Ofcom and are not subject The Civil Contingencies Act 2004 contains emergency to any rules or codes of impartiality. They are regulated powers to allow the making of special temporary by the Press Complaints Commission, which, of course, legislation to deal with the most serious of emergencies. is a body that itself is not regulated by statute and is Such legislation could cover the temporary allocation independent both of the newspaper industry and of of spectrum to the emergency services and critical the state. I am concerned that the proposed amendment national infrastructure in the event of a national to the Communications Act in Clause 1(5)(c) appears emergency. However, the emergency would have to be to give Ofcom new powers to regulate newspaper and of sufficient magnitude that serious damage to human magazine websites. I appreciate that Ofcom has given welfare, the environment or security were threatened, clarification and guidance notes that this will not be existing powers are insufficient and the measures being its intention, but clearly, if that is not incorporated taken are proportionate. into primary legislation, theoretically at least the power I therefore feel that Ofcom’s existing powers can will exist. deal with the requirements of the emergency services. As I am sure the Minister is aware, the audiovisual It has a duty to do so. I hope that in the light of the media services directive recital states: assurances that I have placed on the record, the noble “The scope of this directive should not cover electronic versions Lord will feel capable of withdrawing his amendment. of newspapers and magazines”. 1235 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1236

[BARONESS BUSCOMBE] Lord Maxton: I shall put it the other way round. I am concerned that the exemption of newspaper The BBC website, in particular, often provides links to and magazine websites, explicitly mentioned in the other websites. If the noble Baroness’s amendment AVMS directive, has still not been incorporated into were accepted, would the BBC be unable to link to a English law, either in the Audiovisual Media Services newspaper story that was not balanced or would that Regulations 2009 or, thus far, by the Bill as currently story then become part of the process of balancing by drafted, and that the audiovisual material on the the BBC Trust or Ofcom? websites of magazines and business publishers may be caught by the regulations despite this not being the Lord Lucas: Following that intervention, I hope intention of the directive. It is important to note that the Minister will range widely in his answer. It is that the Press Complaints Commission remit covers not clear to me where old terms such as “newspaper” editorial material on newspaper and magazine websites and “magazine” belong in the modern world. Many of where it meets two key requirements: that the editor of the magazines that I read have no physical existence. the newspaper or magazine is responsible for it and Page-turning technology means that you now get could reasonably have been expected both to exercise something that feels very like a magazine. You can editorial control over it and apply the terms of the browse it and enjoy it very much as you do a paper code; and that it was not pre-edited to conform to the magazine. New sources are developing outside the online or offline standard of any other media regulatory newspaper industry and, the more the newspaper industry body. tries to make life difficult for its customers, the more In effect, if the material is not sourced from these sources will flourish. Where do the Government broadcasters, such as the BBC or ITN, but is original see the boundary between the part of the media world to the paper, it is covered by the Press Complaints that has to have balance and the rest of it that does Commission, not by Ofcom. In moving this amendment, not? How will they draw that boundary in relation to I am therefore respectfully asking the Government to things that are happening on the internet now? make it clear that the Bill’s extensions of Ofcom’s general duties will not give Ofcom any new powers Lord Davies of Oldham: These are the seductions of over any content, including audiovisual content, on office, my Lords. The last three contributors invited newspaper and magazine websites. I beg to move. me to range widely as a result of this amendment. I think that the noble Lord, Lord Lucas, is asking me to Lord Howard of Rising: I strongly support this define in a few succinct phrases over the course of an amendment. My noble friend Lady Buscombe has, hour and half the purposes of this section of the Bill. I with her usual laser-like precision, tackled one problematic shall resist such blandishments and opportunities because aspect of the Bill’s definition of public service media noble Lords who contributed to this debate will recognise content—namely, that it will mean that Ofcom has a that I am concerned to allay the anxieties that the duty to promote investment in newspaper and magazine noble Baroness, Lady Buscombe, voiced when we websites. At the moment the newspaper industry has discussed these issues in Committee. When we its own regulator, the Press Complaints Commission, subsequently met to clarify them, she spoke on behalf chaired so ably by the noble Baroness. It would not be of the Press Complaints Commission to express its wise to extend Ofcom’s remit into this realm. I am not anxieties. That is a significant enough body for me to sure that the sector would appreciate Ofcom having a address it formally to give the assurances that I can specific duty to promote investment into it. As the give. I hope that I will obtain the withdrawal of this noble Baroness has made these points far better than I amendment, despite the fact that my reply will fall will be able to do, I will simply congratulate her on somewhat short of the expectations, and even perhaps bringing forward the amendment and hope that the the hopes, of my noble friend Lord Puttnam. It will Minister listens carefully. certainly fall short of the expectations of my noble friend Lord Maxton and, by a country mile, of the 6pm hopes of the noble Lord, Lord Lucas. I shall not go Lord Puttnam: I bow to no one in my admiration over this ground again, nor will I engage in the kind of for the laser-like precision of the noble Baroness, Lady debate where, if we were not careful, we could be here Buscombe, but I would like to clarify something that for many a long hour. bothers me. Is the noble Baroness suggesting that, in In her amendment, the noble Baroness makes it the event that broadcast material that had been turned clear that she is concerned that Clause 1 grants Ofcom down or not used by the public service broadcasters new powers to regulate newspaper websites. I reassure because of its content became available, a newspaper her that Clause 1 does not grant Ofcom any powers to or magazine could put it on its website as broadcast regulate newspaper websites, including audiovisual material, avoid any sanctions that Ofcom could bring content. I should also make it clear that the definition and fall under the PCC only? If that is the case, the of “media services” in subsection (5) covers newspaper PCC is giving itself an enormous new problem. The websites. As ever with government Bills, this is quite other day, the noble Baroness was very eloquent about deliberate and constructive. It may benefit newspaper a particularly difficult situation that she felt did not websites to the extent that, in carrying out its functions, quite cross the line. I suggest that a great deal of Ofcom will be required under Clause 1 to have regard material will start crossing the line. I want to be clear to the need to promote investment in content included about what is broadcast and what is material that in newspaper websites that contributes or may contribute would normally be expected to come from a newspaper to the public service objectives at the heart of the or magazine. obligation on Ofcom. Ofcom has advised us that such 1237 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1238 instances will be rare, but I hope that noble Lords will (2) When establishing the scheme under subsection (1), OFCOM agree that including online newspapers in the definition must ensure that the scheme— of “media services” would be advantageous. (a) allows for the reporting of complaints about the quality of broadband services (including faults and complaints I want to emphasise an additional point. The AVMS about capacity to carry data or signalling) by registered regulations 2009 require Ofcom to regulate on-demand subscribers, whether or not the subscribers are an end programme services. The regulations define an on-demand user for that service; programme service as having as its principal purpose (b) places responsibility for every complaint or request with the provision of programmes of form and content either the broadband service provider or the owner of comparable to programmes normally included in television the communication cable (depending on the nature of programme services. The principal purpose of newspaper the complaint, fault or request), and ensures that in no websites is not to provide on-demand programme case should a complaint, fault or request not be attached services, even where they currently provide some such responsibility; audiovisual content. It is theoretically possible that (c) requires all repairs or alterations to the communication newspaper websites could provide such on-demand cables to be carried out in such a way as to accommodate and facilitate reasonably anticipated upgrades to the programme services in future. In such a case, the broadband and associated services; regulations would not—I emphasise this again, as it is (d) requires a broadband service provider or an owner or the main cause of the anxiety of the noble Baroness, owners of the communication cables to carry out Lady Buscombe—require Ofcom to regulate the entire necessary repairs or upgrades to the same or a better newspaper website, just the on-demand service that it standard than that pertained prior to the complaint or is obliged to regulate. request.”” That is the response to the amendment. There may be—I hope not—occasions on later amendments when The Earl of Erroll: My Lords, I have taken over this I can deliberate a little further as I have been invited to amendment from the noble Lord, Lord Laird, because do on this amendment, but this amendment was tabled I originally wanted to table it myself but I was away at with the specific objective in mind that we should the time and could not get my e-mail to work from clarify the matter. I have sought to do so and I hope abroad, sadly, and could not get through to the Public that noble Baroness will withdraw her amendment. Bill Office. The objective of this amendment is to try to strengthen the Government’s hand in what they put through in Amendments 2 and 3, effectively, which is Baroness Buscombe: I thank the Minister for his to put a duty on Ofcom to sort out a particular part of reply. Perhaps I can remind noble Lords that, as this is communications infrastructure which unfortunately Report, it was not within my power to respond to has heavy underinvestment. The challenge that this questions. The Minister responded in a way that is amendment seeks to address is the lack of investment helpful to my amendment. We have to allow for some in maintaining the local loop, which is the part from pragmatism because the focus of the amendment is the exchange to the customer, when it falls outside the question mark over new forms of public service areas of high population density: in other words, rural media content. There is a need to differentiate the areas and bits of towns which are not covered particularly regulation of the websites of the press and the magazine well. industry and the regulation of a situation where there The problem arises because Openreach is a separate is public service media content. As the Minister suggested, company but is also a subsidiary of BT, and it is there may be rare instances where that may include responsible for the repairs and maintenance of this content that originated from newspapers and is specifically part of the infrastructure. Unfortunately, it suffers aimed at or provided for public service broadcast. I from severe financial constraints, not all of which are thank the Minister for taking the time to cover this operational. For instance, there is a huge pension crucial issue and to give me a helpful reply. I beg leave deficit in BT, which means that it has had to cut back to withdraw the amendment. on maintenance to a bare minimum. The trouble is that the average non-technical customer has real problems Amendment 9 withdrawn. in continuing to receive the service for which they originally contracted their ISP.The ISPs have problems delivering it because they are finding that the lines are Amendment 9A degrading. I have noticed that, the more I have said Moved by The Earl of Erroll this in other fora, the more people join in and say, “Exactly; my line is getting worse and worse”. 9A: After Clause 1, insert the following new Clause— Let us say that you have got a fault on a line which “Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and signal has not been unbundled: in other words, it is still in carrying cables BT’s ownership. You are paying BT Retail for the line, (1) The Communications Act 2003 is amended as follows. and you are paying an ISP to provide you with broadband over that line. It gets a service from BT Wholesale, (2) After subsection 27 insert— which runs what is called the backhaul from the exchange 27A “Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and onto the main internet. Openreach is responsible for signal carrying cables maintaining and fixing any faults on the line. There (1) It shall be the duty of OFCOM to establish a scheme for are four service entities involved, and there may be the reporting of complaints about, and requests for repairs to, more. There are Chinese walls between these, and broadband and associated data and signal carrying cables, and there is a lot of buck-passing. Let us say that your services. broadband is not working. You are meant to ring up 1239 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1240

[THE EARL OF ERROLL] It is exactly what Ofcom should be doing to allay the your ISP, and tell it so. It is then allowed to test the frustrations of consumers of broadband services, exactly line, and it may well use BT Retail stuff to do that, or in the way that the noble Earl, Lord Erroll, described. it may be Openreach. Do not hold me to the exact Many broadband users will have had exactly that detail of who owns which bit. BT Retail’s universal experience, where you try to fix someone in this whole service obligation only covers voice over copper, not chain with responsibility, and wholly fail to do so. I the maintenance of broadband connections. So it will hope that the Minister will be sympathetic, but even if probably pass that test, but it is still not adequate for he is not, I hope that Ofcom, when it gets a chance to broadband, so it comes back and reports that the line read this debate, will know and understand some of is not faulty, but you know, empirically, that it is. the frustrations. This is not exceptional. This kind of What do you do next? This is a challenge, because example is very much a day-to-day situation. you cannot talk to BT Wholesale. The other thing that could be happening is that either BT Wholesale, or Lord Young of Norwood Green: My Lords, your ISP,could be throttling back your internet connection although consumer protection is a necessary and serious and reducing the speed on it because it has a lot of issue, I do not think this proposed new clause is traffic, or they could be doing what they call traffic needed, because the rights of consumers are extensively shaping, which is allowing only certain types of traffic covered. through at full speed. This is done through a digital I will not reply to the technical nature of the line management unit, which is connected to your contribution made by the noble Earl, Lord Erroll, digital subscriber line access management unit in the because I do not think that would be an appropriate exchange. These are technical things, but they will not use of time. I understand the points that he made, tell you if they are doing them. There is no way of having worked at some time in my life on some of that finding out, so you are stuck. I have discovered, because network. I want to address the underlying concern. my line fell to under half its speed over a four-year Communications providers are required by Ofcom to period, that, when this sort of thing happens, if you establish procedures for handling complaints from can pester people persistently over a six-month period, consumers where they feel that they are not receiving and you know something about it, and eventually adequate service. Failure to implement an adequate your line fails completely, there are some excellent complaints procedure is actionable by Ofcom. I engineers at Openreach who can and will come and understand the point made by the noble Earl. It can be sort it out. My line is now nearly treble the speed it difficult for ordinary consumers to try to pinpoint was a couple of months ago, so they can do it. There is where the blame lies and to get the appropriate action not a real problem with the lines. The trouble is the taken, but if it is not being handled correctly by the underinvestment. service providers, and if they have not got an adequate Amendment 9A has a couple of main points. The complaints procedure, that is actionable by Ofcom. proposed new subsections 2(a) and 2(b) are supposed If the complaint cannot be resolved within the to deal with the problem of buck-passing, so that consumer complaint procedures, consumers are able somebody is responsible for sorting out your fault. to file an application with two independent alternative The next bit addresses the part of the problem whereby, dispute resolution schemes. These are Otelo and CISAS, because of the underinvestment and the fact that they and do not ask me to explain those acronyms. These are kept on a very short rein, whenever they come to schemes can investigate the circumstances of a complaint repair your line, they will do the minimum possible to and make a judgment that is binding on the provider, get it working to the minimum standard possible, but not the consumer, who is always free to pursue because there is not much money. Therefore, they separate legal action should satisfactory resolution could be upgrading these lines when they replace not be possible. stretches of line. They could be putting in 0.9mm copper Ofcom has also taken steps to promote competition instead of 0.5mm: but no, it will go in at 0.5mm, which and improve the incentives of providers to invest in tends to be universal. With broadband, we want to get and maintain broadband infrastructure, including by better stuff in there, but they will not do that because creating a competitive environment that allows investors it costs more money. That is why, under proposed new who see a case for investing in networks to do so, and subsections 2(c) and 2(d), repairs would not be done at ensuring that consumers can make informed choices the bare minimum. Where possible, they should try to regarding services and providers, including publishing increase the capacity of those lines and improve them, research on broadband speeds, which was one of the and use that opportunity to steadily improve the network major concerns expressed by the noble Earl, Lord in distant rural points. This is supposed to be positive, Erroll. The incentives provided by competition should and it would give Ofcom powers to put something help to eliminate poor service levels for consumers together that might manage some of the problem. since they will be free, subject to any minimum This will also require some co-operation and some contract term, to move to another provider offering financial sorting out, and some other things, but maybe higher levels of service. The UK has a healthy market it is a start. I beg to move. for broadband provision, with a wide range of providers offering retail services. Complaints about the absence 6.15 pm of supply were the reason for the Government’s Lord Clement-Jones: My Lords, I did not plan to universal service commitment, which aims to deliver a speak to this amendment but, speaking as a consumer minimum level of service at 2 megabits per second to of broadband services, it is quite an inspired amendment, virtually every community in the UK by 2012, including whether or not the Government are sympathetic to it. rural areas. 1241 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1242

The amendment asks Ofcom to establish a scheme the balance of power between the regulator and the to deal with complaints, faults and requests regarding Government. The balance is weighted too far in favour of broadband and its associated data- and signal-carrying the regulator, and we would like it to be tilted more cables. Whatever the problems, getting Ofcom to handle towards the Government. This can be done by establishing this cannot be the right way. It would not even be the the right framework. Unfortunately, in this Bill, the direct service provider. This would be a good example Government seem to be happy to carry on as things are. of extending the powers of Ofcom in a direction I have no doubt that these reports will be vital in which would not solve the problem. There are some assisting the Secretary of State in determining priorities problems, and I understand the points which the noble for communications policies. There is no doubt that Earl, Lord Erroll, and the noble Lord, Lord Clement- Ofcom is the body that should carry out such an Jones, are making, but this is not the right solution. As assessment at arm’s length from Ministers. However, I I say, there are already facilities for consumers who do not understand why the Minister’s hands need to want to complain, and Ofcom already has the power be tied by stipulating how often these reports are to take action if the complaints procedure is not produced. The Secretary of State is missing a trick adequate. In the light of that explanation, I urge the if he insists on defining the regularity of these reports noble Earl to withdraw the amendment. so rigidly. In many senses, it does not matter whether the The Earl of Erroll: I thank the Minister for his report is every two years, as was originally suggested; reply. I just hope that the Government will think about every three years, as is now suggested; or every four this matter a little harder before it goes to another years, as some, such as British Telecom, argue. It place, because something should be put into the Bill. seems that the Government wanted to give ground on Yes, you can complain to Otelo or CISAS about BT some issues but were not prepared to go the whole Retail or your ISP, who are your communication way, and as such they decided on the third suggestion service providers, but the challenge is that you cannot as a halfway house. talk to the very people who are responsible for doing More significant are government Amendments 13 something about it, who are Openreach or BT Wholesale. and 14, which are welcome. It has always seemed There is a complete disconnection between the two obvious that any reports that are of significance should because of the Chinese walls that were set up for be placed in the public domain, and I am glad that the competitive reasons: to try to prevent BT from looking Government now agree. I beg to move. after its own. Unfortunately, the structure that has been set up does not work, and it will take someone Lord Young of Norwood Green: My Lords, in else from outside—Ofcom is the only organisation Committee, a number of your Lordships had concerns that can do this—to realign the way in which the two about the frequency of the reports in Clause 2, which work together. At that point, it should be able to stand it was originally proposed would be every two years. back again. The noble Lords, Lord Howard and Lord De Mauley, What is happening at the moment is not working. It suggested then, as they have again today, that the is too easy for people to pass the buck to each other. If reports should be prepared only at the request of the you complain to Otelo or CISAS, BT Retail will say Secretary of State. The noble Lords, Lord Razzall and simply that it has done all that it can, and Otelo or Lord Clement-Jones, suggested that four years would CISAS will have to agree that it has. I am afraid that be more appropriate, and, during the robust debate there is a problem here that needs to be addressed, and that followed, the noble Lord, Lord Puttnam, very it would be nice if the Minister could think about this helpfully suggested a compromise position of three and if the Government could do something about it. years as being more “appropriate and reasonable”. As My amendment in essence seeks to push things in the I recall, that suggestion was warmly received by the right direction. I probably should have tabled it at an Committee. earlier stage, but had not thought about the matter In the light of that debate, the Government have hard enough. With that, I beg leave to withdraw the considered this issue and now propose three-yearly amendment. reporting, which will be in line with the existing prescribed timetable for Ofcom to prepare other reports, for Amendment 9A withdrawn. example the market reviews, and the review of the media ownership rules. I hope that this will reassure your Lordships that any burden on Ofcom or industry Clause 2 : OFCOM reports on infrastructure, internet as a result of this reporting duty will be kept to the domain names etc minimum.

Amendment 10 Lord Clement-Jones: My Lords, will the Minister clarify that there will be the opportunity for other Moved by Lord Howard of Rising speakers in this debate to intervene after him? If he is 10: Clause 2, page 2, line 32, leave out from “must” to “and” in making his ministerial reply now, it will be impossible line 33 and insert “, if requested to do so by the Secretary of State, for those of us who wish to say something in response prepare reports” to the amendment to intervene.

Lord Howard of Rising: My Lords, Amendment 10 Lord Young of Norwood Green: I am speaking to seeks to address in practical terms one of the major the Government’s amendment as well as addressing concerns that we on these Benches currently have with Amendment 10. 1243 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1244

Lord Clement-Jones: My Lords, that is the problem; very happy with the additional one year. I believe that it is not possible on Report for other speakers to take industry will be happier with that rather longer period, part in the debate on an amendment after the Minister since it was felt that having to report every two years has responded. was going to be unduly onerous. I also want to put on record that we are strongly of Lord Young of Norwood Green: I suggest then that I the view that these reports must be prepared by Ofcom, speak to my amendment and not respond at this point and that it is not good enough to wait until the to Amendment 10. Government requisition a report from Ofcom. Therefore, Why do we think that these reports should be we are not of the view that Amendment 10 is desirable. produced regularly and not only when requested by 6.30 pm the Secretary of State, as the noble Lord, Lord Howard, suggested? The point of this provision is to ensure that Lord Howard of Rising: I believe— the condition of the nation’s communications infrastructure is kept under constant review, and that Lord Clement-Jones: I think the Minister has not not only are Ministers provided with regular information responded— about it but their attention is regularly directed towards it. If a Secretary of State gets to the point where he Lord Young of Norwood Green: My ability to rise feels that he needs a report on the condition of the promptly is a bit restricted these days. I have made the communications infrastructure because of particular points against Amendment 10. We do not want concerns, presumably there is something to worry unnecessary reports, and I hope in the light of the about and it is already too late to take action to head assurances that I gave in moving the amendments, that off that concern. the noble Lord, Lord Howard, will feel capable of withdrawing his amendment. Regular reports will ensure that Ministers have good, regular and consistent information that enables Lord Howard of Rising: I hope I am allowed to them to be well placed to take policy decisions that speak now. This nice piece of paper says a Member will place the UK at the top of the league table on can speak when the Minister speaks early in order to communications infrastructure, instead of having to assist the House in debate—that is obviously what he struggle to catch up, as we did with first-generation was doing. I beg leave to withdraw the amendment. broadband and are in danger of having to do with high-speed broadband. Amendment 10 withdrawn. Finally, I reassure your Lordships that Ofcom will still be required to alert the Secretary of State to any Amendments 11 to 13 significant developments in the sector that are likely to have a significant adverse impact on businesses or on Moved by Lord Young of Norwood Green the general public in between reports. 11: Clause 2, page 3, line 5, leave out “2” and insert “3” In Committee, the noble Lords, Lord Lucas and 12: Clause 2, page 3, line 7, leave out “2” and insert “3” Lord Whitty, expressed a strong view, which was supported 13: Clause 2, page 3, line 20, at end insert— by others, that the reports that are prepared by Ofcom “(7) OFCOM must publish every report under this section— on the infrastructure and domain names and sent to (a) as soon as practicable after they send it to the Secretary the Secretary of State should be published. Our policy of State, and intention has always been that those reports will be (b) in such manner as they consider appropriate for bringing published as soon as possible. Having considered the it to the attention of persons who, in their opinion, are points that were made in Committee, we have concluded likely to have an interest in it. that for clarity it would be helpful to table a government (8) OFCOM may exclude information from a report when it is amendment that requires the infrastructure reports in published under subsection (7) if they consider that it is information new Section 134A and the reports on internet domain that they could refuse to disclose in response to a request under names in new Section 134C of the Communications the Freedom of Information Act 2000.” Act 2003 to be published by Ofcom. Amendments 11 to 13 agreed. As noble Lords will no doubt understand, commercially confidential information or information that should not be disclosed for other legitimate reasons—for Amendment 13A example, law enforcement or personal privacy—should Moved by Lord Whitty not be published. We therefore propose that Ofcom 13A: Clause 2, page 3, line 28, at end insert “giving due should not have to publish any material that consideration to the interests of persons living in rural areas.” would justifiably be withheld under the Freedom of Information Act. Lord Whitty: My Lords, I shall speak also to Amendment 13B. This part of the Bill deals with Lord Clement-Jones: My Lords, I apologise for Ofcom’s responsibility for spreading infrastructure, in disturbing the even flow of the Minister’s speech, but I the areas for which it is the regulator, across the whole wanted the opportunity to intervene very briefly. First, of the nation. Whatever form of infrastructure we are we on these Benches strongly support the new government talking about, it is common experience in rural areas amendments. As the Minister said, we originally suggested of England, Wales, Scotland and Northern Ireland a period of four years, but due to the masterly compromise that the consumers, citizens and businesses that are suggested by the noble Lord, Lord Puttnam, we are located there have worse access, lower speeds in relation 1245 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1246 to broadband, more intermittency and generally a and this is the least the Government can do to rectify worse service than in urban and suburban areas. This the situation. A long time ago—in fact when the noble applies not just to the remotest areas of Scotland, but Lord, Lord Whitty, was Defra Minister in this House— also—I declare an interest in terms of my home there was much talk of rural-proofing. This would be address—in the borders of Dorset and Wiltshire. It is one of the main things the Government could do to clear that if we are requiring Ofcom to report on rural-proof. Perhaps the Government still do a check progress in installing infrastructure in general, as this on their Bills to make sure that they are rural-proofed. clause does, then the way in which we judge whether I should be interested to know whether this one has Ofcom has been successful—or Ofcom has judged the been. If it has, the Government should immediately industry to be successful—must pay particular attention accept the amendment. to the effect in rural areas. In Committee, I was told that there was no need to The Earl of Erroll: My Lords, this is an opportunity spell out all the different potentially disadvantaged for the Government to indulge in a bit of joined-up groups that Ofcom had to have regard to because that strategic thinking. The challenge comes because these was written in Ofcom’s basic constitution. I sort of universal service obligations, or measures of service, accept that. I was also told there was no need to are always population-based, so that it skews it require Ofcom to report separately to the devolved immediately towards the high density areas, such as Administrations, so that they can tackle problems that cities with high-rise blocks. If we do not create the may arise in their particular areas, because Ofcom infrastructure out in remote areas, people will be always does that. However, this is a specific and new forced to move. As happened in various other preceding reporting requirement. It is one required by this Bill great revolutions, such as the industrial revolution, and it is one to which reference was made in the first you will see a steady migration of population to where debate today on the new clause on Ofcom’s responsibilities they will have to move to in order to take part in in relation to infrastructure. Whether you are talking modern society. What you could end up doing is about the changes in the effective operation of your creating more deprived areas. This sounds terrible, as mobile phone as you drive through the rural lanes of if I am predicting apocalyptic things. I am not trying our country, whether you are talking about the speed to do that. However, you will see a general deprivation of broadband or whether, equally importantly, you starting to occur. People will then worry about that are talking about the ability to access public services and want to address it, and suddenly you will have to and other information in rural areas digitally, then it is put in much more investment and much more money. an important dimension of Ofcom fulfilling this These things have a knock-on effect—once a few responsibility that its reporting system should very people start to migrate, there is less justification for specifically and very clearly cover the interests of rural the infrastructure; then more people migrate, and suddenly consumers. it becomes untenable to live there, except for very I am perfectly prepared to concede that the elderly or very young people who perhaps do not Government might have a better form of wording need access. here. If anything, there probably should be a stronger It could also be used for positive moves, such as form of wording. However, specific reference in the trying strategically to repopulate the Highlands. Farming Bill to the rural areas in respect of this reporting was never going to repopulate the Highlands, and mechanism is important. As distinct from one or two trying to keep a few people there crofting certainly of my amendments later on, it ought to be a relatively never did. You could have viable communities up easy amendment for the Government to accept. I beg there, but there is no way you could justify putting the to move. infrastructure in if it was on a population-based system. So it may be worth forcing Ofcom to report in a more strategic way, looking at how we use land and resources Baroness Miller of Chilthorne Domer: My Lords, I effectively in the UK. have added my name to this amendment because I do think that this is a particularly important issue. I know Lord Maxton: My Lords, the previous Labour the Minister addressed it briefly at the Committee Administration in Scotland started a scheme to extend stage so I went back and looked again at what has broadband specifically to rural and remote areas. Let actually happened in a number of rural areas. People us be clear: there is a difference between a remote area, living in rural areas are not just another group. Because where only a handful of people may live, and a rural of the Government’s quite correct drive to get more area, which could be a village in the middle of Oxfordshire, services online, it has become essential for those people for example and have a population of 1,000 or 1,500. to be able to access those online services, some of There may be sufficient demand in that area to ensure which time out if things take too long because they the exchange is upgraded to take broadband, even have only a dial-up mechanism. The same applies to though it may still be down a copper wire. There is online banking. With banks and other outlets such as already a scheme in Scotland. It is having problems in post offices closing, online access becomes ever more extending out to the remoter areas of the Highlands important. and Islands, but it does go out to what one would term The Minister may say that other agencies—for example, the “rural areas” of Scotland. the regional development agencies—should have been responsible. Indeed, in many cases they did take forward Lord Puttnam: I support everything that has been investment effectively. However, that has been patchy. said. In Ireland, where I live, a report for the Government It has not been equal across the regions. Economic recently suggested that, counterintuitively, it was more and social development are being very adversely affected important to have good, high-speed broadband access 1247 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1248

[LORD PUTTNAM] UK networks. The problem is, as the noble Earl, Lord in rural areas than in city centres. Such access has Erroll, and others said, and others implied, that progress already affected the migration of quite a lot of useful being made nationally conceals that the proportion employment back into rural areas—the Highlands covered in rural areas is less and, in some cases, going and Islands in Scotland are a very good example. It is backwards. Unless that is specifically written into the a useful amendment which offers a direction of travel reporting mechanism, the fact that Ofcom in its process— for the Government.

Lord Young of Norwood Green: My Lords, I absolutely Lord Young of Norwood Green: I repeat my assurance. agree with the objective of the amendment, which is to The requirement will correspond to the new reporting ensure that Ofcom considers in its reports the interests procedure. The procedure will not somehow stand of persons living in rural areas. However, as I said in alone; it will have to embrace that requirement to Committee, the amendment is unnecessary because cover the rural areas. I am talking now about the new the Communications Act 2003, taken with the provisions reporting procedure, so I wonder whether there is an in this Bill, already require Ofcom to do just that. unnecessary difference of opinion here. I am trying to give an explicit assurance that the new reporting In precise terms, the objective of the amendment is procedures will cover rural areas. already achieved by Section 3(4)(l) of the Communications Act 2003, which requires Ofcom to have regard, when relevant, to the different interests of persons living in Lord Whitty: My Lords, I can understand that, rural—I stress that—as well as in urban areas. When with all the reference back to the Communications that is read together with new Clause 134B(1)(b), Act and the original set-up of Ofcom, I may have which requires the report to cover, missed something and may be slightly confused. I am “the geographic coverage of the different UK networks”, therefore prepared to withdraw the amendment. It I am sure that your Lordships will appreciate that the would be useful if, between now and Third Reading or object of the amendment is achieved. before the Bill goes to the House of Commons, those The clause talks of “geographic coverage” because of us who are concerned could be pointed to where the there are sometimes circumstances where coverage new reporting mechanism is clearly covered by existing may be problematic even in more urban areas, but as I provisions. I did not follow that from my noble friend’s am sure that the noble Lord, Lord Whitty, and the explanation; he undoubtedly has better briefing than noble Baroness, Lady Miller, are well aware, the vast me on this matter; but I should still like to see it in majority of areas where coverage of communications black and white. Subject to that, I beg leave to withdraw networks is an issue will be rural areas—or in some the amendment. cases, as my noble friend Lord Maxton reminded us, it might be even more difficult for some of the more Amendment 13A withdrawn. remote areas. That is precisely what paragraph (b) is intended to deal with. Amendment 13B not moved. In response to the noble Lord, Lord Puttnam, and the noble Earl, Lord Erroll, I say that we should remember that we are talking not just about the reports Amendment 14 of Ofcom. I remind noble Lords that our report on Moved by Lord Young of Norwood Green Digital Britain made a specific commitment to ensure that all areas, including rural areas, have access to 14: Clause 2, page 4, line 35, at end insert— broadband of at least of 2 megabytes per second by “(3) OFCOM must publish every report under this section— 2012. That is not the end of the problems of universal (a) as soon as practicable after they send it to the Secretary broadband service, but it is a commitment to ensure a of State, and basic standard for everybody. If only we could ensure (b) in such manner as they consider appropriate for bringing that providers delivered that, it would please the noble it to the attention of persons who, in their opinion, are Earl, Lord Erroll, if no one else. likely to have an interest in it. In response to the concern expressed by my noble (4) OFCOM may exclude information from a report when it is friend Lord Whitty and the noble Baroness, Lady published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under Miller, I say that the commitment is already in existing the Freedom of Information Act 2000.”” legislation, coupled with the new requirements. It is amply demonstrated also in our commitment to ensuring a universal broadband service. In the light of that, I Amendment 14 agreed. hope that my noble friend will feel capable of withdrawing his amendment. Amendment 14A 6.45 pm Moved by Baroness Young of Old Scone Lord Whitty: My Lords, I am somewhat disappointed 14A: Clause 2, page 4, line 35, at end insert— by that, because I thought that I had already said that “Reports on climate change the pre-existing requirement on Ofcom to take rural 134D OFCOM reports on climate change consumers and businesses into account is clear. However, (1) OFCOM must, if directed to do so by the Secretary of we are talking about a new reporting mechanism, State, require electronic communications networks and services which requires Ofcom to report, for example, on the providers to provide information on their preparedness for climate proportion of the population covered by the different change. 1249 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1250

(2) The type and format of the information to be collected by were not included in that group, I think by mistake Ofcom from providers will be prescribed by the Secretary of State rather than by design. The water companies, the energy and will require: companies and others classed as statutory undertakers (a) electronic communications providers to assess the risks are required to report. Of course the communications from current and predicted climate change in relation to companies do not fall into the category of statutory their functions, undertakers, but they are, as I am sure your Lordships (b) electronic communications providers to assess their would agree, just as important to this country’s resilience preparations for a changing climate, including information on the steps taken to reduce or remove the risks referred to the impact of climate change. to under subsection 2(b). Amendment 14A tries to correct what I believe is (3) Under section 134D, Ofcom are required to— the erroneous omission of the communications companies (a) request information from such networks and services from the Climate Change Act reporting requirement providers as they consider appropriate, and by asking Ofcom to seek reports from such companies, (b) send the required information to the Secretary of State whose resilience to floods, heatwaves and storms is as soon as practicable.”” important. The Secretary of State will prescribe what information he needs to know, so Ofcom is not required Baroness Young of Old Scone: I shall speak also to to become an expert in climate change impacts and Amendment 14B. I should declare an interest as a their adaptation. The proposal would not cover all the member of the Climate Change Adaptation Sub- companies regulated by Ofcom but would leave Ofcom Committee. I apologise for raising this issue only on to judge which companies are the most important in Report. Discussions with Ofcom and the department terms of resilience to climate change impact. have been ongoing. I am grateful to the Minister’s Amendment 14B would enable Ofcom to use its department for its engagement, but, having reached a existing information-gathering powers to require point of impasse, I felt that I needed to bring forward communications providers to supply the information the amendment. required and would ensure that Ofcom could not just Climate change will have an increasing impact on ask willy-nilly for excessive information. It makes it essential services in this country.Communication networks clear that the power would be subject to the restrictions and services such as telecoms, the internet and broadcast in Section 132 of the Communications Act 2003, media will be no exception. Perhaps I may give some which says that demands for information must be examples: heat, floods and storms can knock out proportionate. services, as can interruptions to power supplies. I am absolutely certain that the Minister will resist Transmission equipment can be jeopardised by stormy this amendment, although I do not believe that that is weather. In emergencies, communication services are because the Government do not want communications vital not only for emergency response but for the companies to have to report on whether they are public to gain information about what is happening resilient in the face of climate change. I believe that the during an emergency, as well as for the public to Government want that; indeed, in response to the communicate with one another to gain reassurance consultation about Ofcom’s powers, they confirmed about the safety and welfare of family and friends. that they believed that the industry should plan for the During the Carlisle floods in 2005, when storms had resilience challenges posed by climate change. The brought down telecommunications and floods were disagreement is really about how that can be achieved. increasing, Environment Agency staff nobly waded in In the discussions that have been taking place, the and out of the local police station, itself underwater, Government have proposed that these issues be addressed simply in order to keep communications open and the later, in the wider context of the new security and emergency response services in action. resilience requirements that arise as a result of the Just at the time when emergencies do arise, the recent review of the EU telecoms framework legislation. public want to get more information about these The revision to this framework directive has only just emergencies in order to be able to respond to them. been published. The timescale for transposition is They also want to be able to communicate with their unclear and, although I would hesitate to accuse the nearest and dearest, with their places of work and Government of fiddling while the UK floods, it feels a with emergency services. I believe that the public have bit like that. a right to expect that the communications infrastructure and services will be planned to take proper account of The Minister has meanwhile proposed a voluntary the medium-term and longer-term implications of climate arrangement of the key players in the sector, which change and that communications companies should might be in place by the autumn. I believe that this is report from time to time on their preparedness for and too important an issue to be left to a voluntary agreement resilience to climate change. My Amendments 14A with the industry to provide some unspecified information and 14B seek to ensure that the communications from unknown companies at some possible future companies do so. date. Wisely, the Government have not accepted a This is not an off-the-wall, unusual request to the voluntary approach with other key industries, so I do communications companies. Those of your Lordships not believe that they should accept it with the electronic who helped to steer through the Climate Change Act communications industry, which is vital to emergency will recall that, under that Act, a variety of public and resilience and the work of other parts of the critical business bodies—for example, the water companies national infrastructure. and the energy companies—are required to report on This may be the wrong amendment. If it is, there their preparedness and their adaptation to the impact are perhaps other ways in which the Government can of climate change. The communications companies give assurance on these points. Clause 2 of this Bill, 1251 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1252

[BARONESS YOUNG OF OLD SCONE] basis of the last year or two, many more floods and which amends the Communications Act 2003, requires many more weather emergencies. Nobody has better Ofcom to prepare reports on electronic communications experience of these things, I would suggest, than the networks and services matters, including preparations noble Baroness, who was of course in charge of the made by providers for responding to an emergency, Environment Agency as the water was rising up towards the steps taken to assess the risks of different types of that electricity substation. She has particular experience emergency and the steps taken to reduce those risks. of exactly how fast these things can happen. Perhaps the Government might give guidance to Ofcom to ensure that the definition of an emergency includes 7pm not just immediate emergencies and resilience envisaged Lord Whitty: My Lords, I declare an interest as by the clause, but also the very likely medium-term both a member of the board of the Environment causes of future emergencies such as the impacts of Agency and a member of the Joint Committee chaired climate change. It should also include the risk assessment by the noble Lord, Lord Puttnam, who is no longer in and resilience measures to be put in place by the his place, that carried out the pre-legislative scrutiny communications networks and services to meet not of the Climate Change Bill. It was clearly a fault of just these immediate risks but the medium-term and those who were scrutinising the Climate Change Bill longer-term climate change impacts. That piece of that this issue was not included. Communications are guidance to Ofcom might strengthen the position. absolutely vital not only in responding to the acute The ideal situation would be if the Government situation of an emergency caused by changes in weather were to ponder on this amendment and bring forward conditions but in future-proofing the systems in terms one of their own, either at a later stage in this House of expected changes in temperature, soil composition or in another place. At the very minimum I ask the as a result and so on. I hope that, even if the Minister Minister to give assurances to noble Lords, and indeed does not completely accept the amendment moved by to the public, that these vital communications companies the noble Baroness—I nearly said “noble friend”, as will ensure that they are resilient to the impacts of she was once—the Government will accept that Ofcom climate change and that they will be required to report should take on an equivalent function to the ones that on that resilience, as the majority of other organisations Ofwat and Ofgem have in planning for resilience in the and companies important to national climate change face of climate change. Whether or not that is done in adaptation and resilience already have to do by law. I this precise form, an indication from the Government beg to move. tonight would be helpful. Lord Clement-Jones: My Lords, we support in principle Lord Davies of Oldham: My Lords, I am grateful to the amendments put forward by the noble Baroness. the noble Baroness, Lady Young, for introducing the Indeed, it would be very strange if we did not support amendment in a largely constructive way, although the amendments from these Benches. The noble Baroness she referred to an “impasse”, which is not quite the has clearly spotted a gap in the Climate Change Act, word that I would have used. I hope that I can reassure which could be filled by this amendment. The Government her that, far from there being deadlock, the Government are suggesting a voluntary agreement; I am not quite are extremely constructive and anxious on this matter. sure why—it is not entirely clear—but I urge them to I am grateful to other noble Lords who have take seriously what the noble Baroness, with all her participated in the debate for stressing the importance experience in this area, is putting forward. These seem of resilience in the telecoms network. The Government to be sensible suggestions and I very much hope that regard resilience to the risks caused by climate change the Government will look seriously at either accepting as being of the utmost importance. That is why the the amendments or giving them further consideration Bill introduces a requirement for Ofcom to provide a as the Bill progresses. triennial report to the Secretary of State on electronic communication infrastructure and its resilience. That Baroness Miller of Chilthorne Domer: My Lords, refers to overall resilience, but we are concerned about since Committee the Minister has been kind enough a high level of resilience for the UK telecoms networks. to write to a number of us about the matters raised by Climate change is, of course, significant, but we also the RUSI report into the resilience of the communications need resilience to risks such as loss of infrastructure networks, particularly first emergency responders and through malicious or terrorist attack, human error, local authorities. The report pointed out many of the accident, force majeure or whatever. By its very nature, gaps. The Minister said in his letter that those were that will include natural events or disasters, whether or largely organisational gaps, but when I went back to not they are caused by climate change. the report I saw that the issue is a bit more far-reaching The noble Baroness, with her vast experience in her than that. I am grateful to the noble Baroness, Lady role in the Environment Agency, will know only too Young of Old Scone, for raising this issue, because I well that the Government have already acted on the am little bit shocked that, as we worked our way issue of resilience. Following the Pitt review on flooding, through the Climate Change Bill in this House, we did a voluntary industry work programme to enhance not question the role of communications networks. It resilience was put in place. That work has been going seems that, of all the statutory undertakers, those in on for a considerable time. As she also knows, we also charge of communications are right at the front line. have the Flood and Water Management Bill, which we I, too, hope that the Government will be able to do will have the greatest pleasure in debating in Committee more than say that they will put this back until they in a couple of weeks—indeed, I gave an assurance at have something to transpose from the directive, because Second Reading that we would be considering these between now and then there are likely to be, on the matters in some detail. 1253 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1254

The necessary resilience of our telecoms network is Although this Bill is largely the concern of the of great importance. Far from the Government being Department for Business, Innovation and Skills, which obstructive, we are greatly exercised, not just through has real concerns about how regulation is enforced the promptings of the noble Baroness but because of and developed with the industry, and although the the views of others who are concerned about climate DCMS inevitably has a great interest in many aspects change. We are concerned about resilience and we are of the Bill, I emphasise to the noble Baroness—I taking action. speak as one of the team of Defra Ministers—that the Secretary of State has taken a particular interest in It is important to consider resilience as widely as this issue. He is all too well seized of the importance of possible. I do not want to risk detracting from all the climate change in relation to the telecoms industry, existing work to enhance resilience to other risks by but it is not his view, nor the view of Defra as a whole, introducing different sets of reporting requirements that this amendment and this specific form of reporting on different risks. At this late stage it would also be is necessary or desirable. unwise to include further onerous blanket requirements across the entire sector when we have not consulted it I therefore hope that the noble Baroness will withdraw on that. There is a requirement on Ofcom to report on her amendment. She has certainly presented an important and play its part in guaranteeing effective overall case, but I hope that she will accept the assurances that resilience to any threat to our system. In the report to the Government take the case seriously and are already Parliament, Adapting to Climate Change: Ensuring addressing these issues, albeit in a different way from Progress in Key Sectors—2009 Strategy for Exercising the one that the amendment enjoins. We believe that Adaptation Reporting Power and List of Priority Reporting the amendment would somewhat frustrate the total Authorities, published in November 2009, the Government picture that the Government are seeking to establish. committed themselves to engaging with industry on climate change adaptation. Discussions have been taking place with Ofcom on how to achieve a voluntary way Baroness Young of Old Scone: I thank the Minister forward on reporting on climate change adaptation for his answer, which was reassuring in some respects matters. but not reassuring in others. I also thank the noble Lords, Lord Clement-Jones and Lord Whitty, and the Once we have a clear view on the impacts of climate noble Baroness, Lady Miller of Chilthorne Domer, for change on the telecoms sector, we can explore with their support for the amendment. Ofcom how this can be incorporated within its triennial I am glad that the Minister has indicated that the reports on resilience, to which I referred a few moments Government are taking this issue seriously, because it ago. Ultimately, should the impacts of climate change is a serious issue. However, I am a bit bemused by the present a risk to the telecoms networks, reporting idea that somehow requiring the communications requirements on overall resilience are bound to reflect companies to report would undermine the general this, alongside all other risks that are of great moment. approach that the Government are taking. It may Creating a separate reporting requirement is not the undermine the general approach that the Government most effective way of getting the industry to play its are taking to the regulation of the communications full part in mitigating the risks and tackling the problems. sector, but it seems to me that it would bring the We know that the telecoms sector takes resilience communications sector entirely into line with the extremely seriously. After all, it is in its interests to requirement by law to report on climate change adaptation ensure resilience to challenges that climate change that has been laid on all the other sectors that are may present in the same way as it does in relation to important in national resilience. That does not therefore other risks. Providers voluntarily offer high levels of seem to me to be a killer blow to the amendment. If it resilience through an all-hazards approach that is achieved is sauce for all the other geese, why is it not sauce for through ongoing dialogue and close co-operation. This this particular gander? reporting requirement would undermine that overall Waiting for a clearer view on what the climate approach that the House will appreciate we need. change impacts on the communications industries might There are no data available demonstrating how the be before deciding what to include in the triennial telecoms sector is at risk from climate change. To reports is probably a longer process than is necessary. mitigate vulnerability we need further discussion and As I said, all other sectors are required to report analysis with the industry, taking data into consideration. without the work on impacts necessarily having been To create a new legislative reporting requirement would gone through in detail. The whole point is to get the run counter to the light-touch legislation by which the sectors to think for themselves about the impact of sector is currently regulated. It would at the same time climate change on the resilience of their businesses detract from the comprehensive approach to risk that and their services to the public and to get them to it is in the industry’s interests to address and which the report back on their risk assessments and what they Government are pursuing vigorously. are doing about them. Spoon-feeding the communications I make the obvious point that, if the Committee on industry in this respect seems to be out of line with the Climate Change wants to pursue these issues further requirements that are laid on all the other sectors. in detail, of course the Government will respond I am pleased that the Minister is saying that the constructively, but a comprehensive approach on resilience triennial reports on resilience that Ofcom must provide is necessary. I have said how the Government and the will include the future long-term impacts of climate industry respond when a potential threat occurs. We change, not just the immediate short-term definition have already seen that in the context of the response to of what an emergency is. However, that is not a view the floods since 2007. that Ofcom currently shares, so I will take up his 1255 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1256

[BARONESS YOUNG OF OLD SCONE] we will forget all about the perils of court and the vast invitation to come back at a later stage of our sums for which you might otherwise be liable, because consideration of this Bill to establish why there seems basically we are very good people, and all that we are to be a difference of view between the Minister and seeking to do is to protect our copyright”. Ofcom about what these reports will legitimately cover. This scam works because of the impossibility of I beg leave to withdraw the amendment. producing proof against this allegation. How can you Amendment 14A withdrawn. prove that you did not do this thing? You have an internet connection, and they say that it was done over Amendment 14B not moved. that internet connection. It is no good producing your 7.15 pm computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to Amendment 15 use the telephone, let alone the internet, because, Moved by Lord Lucas nevertheless, you have an internet connection and they 15: Before Clause 4, insert the following new Clause— say that it was abused. It is extremely difficult to “Disclosure of information produce evidence to gainsay this. All you can do is An internet service provider may not disclose information deny it, and one of the things that they say in the letter which enables a subscriber to be identified to a copyright owner is, “Don’t bother to deny this without producing evidence unless it is satisfied— that you didn’t do it”. (a) that the process used by the copyright owner to procure The result is that a very large people of number pay evidence on online copyright infringement is legal and up, as a result either of the first letter or of the letters accurate, and that it has been appropriately employed; that follow. As far as I can discover, despite the tens of (b) a court is so satisfied; or thousands of orders that have been granted, the solicitors (c) OFCOM is so satisfied.” involved have never taken a seriously contested case to court, because getting money out of people on the Lord Lucas: My Lords, in moving Amendment 15, basis of the compromise offer is actually what is I shall speak at the same time to Amendment 31. The lucrative. Minister knows what this is about; we talked about it extensively in Committee. It seems to me that now is There may or may not be truth at the root of this, the time to take all the good intentions expressed all but this is a route for obtaining redress for copyright the way round the House and reach some sort of abuse which has been neglected, and with good reason, conclusion. by the reputable end of the copyright industry. It produces a great deal of distress and indignation The purpose of this bit of the Bill, which we are just among many thousands of our citizens, and it ought coming to, is to produce a sensible and civilised way not to be allowed to continue now that we are producing whereby copyright owners can effectively enforce their a better and proper route for redress for copyright copyright in a situation where the theft of copyright owners, particularly where we are looking at volume material has got seriously out of hand. We have made cases—where we are looking at large volumes of a lot of progress in this Bill, and with the amendments infringement. That is exactly what the Bill aims to deal which the Government will bring forward, to produce with. that effect—something which will start off by being educative, and which will be punitive only after very My Amendments 15 and 31 look at a couple of reasonable procedures have been gone through. I hope possible ways of dealing with this. We could act on the very much that it will be effective. internet service providers and give them a defence Unfortunately, there have sprung up what I would against revealing the details of their subscribers—we describe as abuses. They may not technically be abuses, could say that either they or a court must be satisfied but they are certainly abuses of current practice so far that a fair and accurate process was being used—or we as the citizens subject to them are concerned. could give the court the power to say, “No, here is this The game works roughly like this. You find an Act which provides a proper remedy for copyright owner of an obscure bit of copyright that is available owners who are suffering from the sort of abuse which on the internet, preferably something pornographic is alleged in these letters. Let them use that route and extremely nasty. You then employ a piece of because that is fairer for consumers and a fairer basis software whose innards have never been exposed to on which to operate, which is what Parliament has the public, or tested in a court, to produce allegations decided, and lay off the techniques which are being that a particular set of IP addresses have made that used to extract money at present”. copyright material available for upload over the internet. Mostly, to date, one firm has been involved, but You then take tens of thousand of these cases to court now a second firm is getting involved. The news of and, using a Norwich Pharmacal order, obtain the how lucrative this is has spread. If we do not do details of the relevant subscribers from their internet something about it, we will have more firms creeping service providers. You then write them a letter, which into this business. There is plenty of copyright in has basically three elements to it. First, it says: “You unpleasant material. There are plenty of opportunities have committed this transgression of copyright”. Secondly, for these firms to make money. It is high time that we it says: “If you force us to take you to court, we will do something effective to put a stop to it. I do not pursue you for a very large sum of money”. Thirdly, it mind which of the amendments the Government choose. says: “But we offer you this opportunity to settle for a I suspect that if I was forced to choose between them, mere £500 or £800”—or whatever the figure is—“and I would choose the one put forward by the Liberal 1257 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1258

Democrats. It might not be perfectly drafted, but if we The Government have given every evidence of having get it into the Bill now, the Government will have an listened to everything that the noble Lord, Lord Lucas, opportunity to redraft it for Third Reading. But this said in Committee, and with which I largely agreed. must not be allowed to continue. I beg to move. The balance was too heavily tilted in favour of the copyright owners. However, that balance has been Lord Razzall: My Lords, I shall speak to addressed by the Government’s later amendments. I Amendment 16, which is grouped with the amendments am not sure that I see the point of looking for something tabled by the noble Lord, Lord Lucas. There are many extra at this point. ways to skin a cat. Our amendment is aimed at solving the problem to which the noble Lord referred. In The Earl of Erroll: I greatly support the sentiments Committee, we discussed this matter. From the letters behind these amendments. Although I take the noble that noble Lords on all sides of the House have Lord’s point that Amendment 100 addresses this issue, received, it is apparent that there is a problem with the it deals with it only in the context of a letter that has activities of one particular law firm. As the noble been raised within the confines of the Bill. The point Lord, Lord Lucas, said, we think that now two law being made by the noble Lord, Lord Lucas, is that law firms are involved. I am very grateful to Which? for firms and others could continue to send letters which drawing to our attention, apart from the letters that are nowhere within the ambit of the Bill and which are we have received, the problems of which it is aware. not controlled under it. So they can put whatever they The Minister has been helpful in circulating to all want into those letters. They could even refer to the of us the information that he has received from the letter in a way that would give the illusion that this Law Society’s regulatory body.This information indicates legislation is involved. that the society is very alert to the practices of the law This may sound like a different point, but it is not. firms in question, as referred to by the noble Lord, When we had the confusion over people asking for Lord Lucas. There is a debate as to which of the information about subscribers’ telephone details, we approaches—the approach of the noble Lord, Lord ended up having the Regulation of Investigatory Powers Lucas, or ours—is the correct way of dealing with this. Act to try to consolidate the position. People did not He is right that this gives the Minister the opportunity know whether requests were genuine. It would be a big to get into the Bill something that can deal with the loophole if we left in the Bill a system that could give matter. rise to abuse. We now have a chance to knock this on Perhaps I may put into one sentence—when people the head once and for all. Then we can do everything say that, they usually go on to speak for five minutes— in a proper and consolidated way, and we will know what I feel is the view on these Benches. As noble where we stand. Lords will have realised, I have always been hugely Lord Puttnam: Will the Minister give us an indication sympathetic to the interests of the creative industries. I of his conversations with the Law Society? In what completely buy the argument that we cannot allow our ways or by what means can the Law Society prevent its creative industries to suffer from the illegal downloading members acting in a way that hardly appears to be in of material. However, the creative industries have spent accordance with the normal duties of a solicitor? a large number of years trying to get their act together in relation to what they want the Government to do. Baroness Howe of Idlicote: My Lords, I was going They have eventually arrived at that point, and we to make a similar point. We have concerning evidence, now have the proposals for the code and the technical as we all said in Committee, that one and now apparently measures. However, the creative industries cannot have two so-called solicitors are behaving in this way. Clearly it both ways. They cannot have the huge amount of this has to cease. Equally, there has recently been effort which Ofcom, the Government and everyone legislation and the establishment of new bodies which else will be putting into getting the technical measures are just coming into effect. I am less keen to put into place—let alone the costs which will be incurred something into the Bill immediately, as it will not both by the ISPs and by themselves—while at the necessarily be the right answer to the problem. I am a same time saying, “But we also want to reserve the little more cautious about it at this stage. It has to be right to send letters to people through our lawyers dealt with and is disgraceful. If these firms really are saying that if they do not pay their £500, there will be law firms, they are bringing their whole profession frightful consequences”. Under this amendment, if into disrepute. the copyright owner believes that there is a breach, it will have to go through the technical measures rather Lord Whitty: My Lords, the Government would be than go to court. wise to take on board a provision such as this one if they want their other measures to receive a degree of Lord Gordon of Strathblane: My Lords, the House acceptance if not enthusiasm. As my noble friend the is greatly indebted to the noble Lord, Lord Lucas, for Minister knows, I am deeply sceptical about the approach tabling a number of amendments in Committee to of this Bill. One of the reasons for that scepticism—and which the Government have now responded. However, one of the reasons detected by the rather small group I wonder whether he does not feel that, on reflection, of consumers who actually understand these things—is and on a close reading, government Amendment 100 an awareness of these kinds of abuses being committed largely deals with all the problems that he has raised, under the present system by the rights holders who to including the prospect of costs being awarded to the go to court and, even more diabolically, by some of subscriber. That should be a sufficient deterrent to their legal representatives. Acceptance of the future rogue firms of solicitors who try to make a quick buck system proposed in the Bill would be aided if these by writing threatening letters. abuses were cleared out of the existing system. 1259 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1260

[LORD WHITTY] Lord, Lord Lucas, or those in the name of my noble With due respect to my noble friend Lord Gordon, friend and myself is necessary to remedy this. It is a Amendment 100—with which there will be some considerable problem for many people up and down difficulties anyway—does not address this issue because the country and will remain so unless we make sure it is a post facto situation involving someone who has that the code almost invariably applies in the first gone through the technical measures and procedures instance. in the Bill. The abuse addressed in the amendment put forward by the noble Lord, Lord Lucas, involves the Lord Howard of Rising: My Lords, I rise very present system of going through the courts. That has briefly. We sympathise a great deal with much of what given some rights holders and their representatives a has been said, but it is an important point of principle pretty poor reputation among those who ought to be that nothing that is put in the Bill prevents rights enthusiastic consumers of their output. This has in holders from using civil proceedings. part soured discussion about the objective the Government are trying to achieve in the Bill. I hope that one of The initial obligations procedure in this legislation these amendments appeals to the Government—it ought is an additional remedy designed to tackle illegal to. If not, the Government ought to come up with one peer-to-peer file-sharing. That point of principle is that deals with this very serious abuse once and for all. important when discussing and looking at these amendments. Amendments 16 and 31 would appear to limit the ability of a rights holder to use established 7.30 pm remedies. If rights holders want to go to court to seek Lord Clement-Jones: My Lords, I rise very briefly damages under existing copyright laws, then this Bill to support the amendment of my noble friend Lord should not stop them from so doing. Razzall, signed by me as well. On these Benches we obviously agree with the aim On these Benches we are very pleased to see that the of stopping unscrupulous law firms sending demanding House is generally much more sympathetic to amendments letters to unknowing and innocent customers. However, of this nature. Obviously, they have been redrafted to I am not sure whether the way to stop these is to stop be less exclusive in terms of ousting the courts, but as rights holders being able to exercise their legitimate the Minister himself in his letter to us said: claims in a timely manner. “There will be occasions where the notification system is not Finally on this issue, I thank the Minister for taking appropriate, and it is important that we allow rights holders some this matter up with the Secretary of State for Justice. flexibility, rather than tie the hands of the entire creative industries While I appreciate that he will not wish to comment due to the possible poor conduct of some isolated parties”. before the individual cases are resolved, can he give We took that on board in formulating these amendments. the House an update on discussion with his government Clearly, we are very strong supporters of the system of colleagues about alternative means by which help can graduated response, which as the noble Lord, Lord be given to protect consumers? Lucas, said is being considerably improved as a result of amendments to the Bill. However, in the meantime we learn of new entrants to the hall of infamy, such as Lord Young of Norwood Green: My Lords, as I Tilly Bailey & Irvine—the second law firm which I do have expressed on previous occasions, I sympathise not think anybody has mentioned in addition to ACS:Law. with the concerns—there is nothing between us on We also know more about the firm responsible for the the problem. I understand the intent behind these investigations, Logistep. As my noble friend mentioned, amendments. Though I did not initially receive the the activities of these two law firms and Logistep are letters I am sure I am being included in the loop; I get an embarrassment to the rest of the creative rights the letters now. I share the concern: I would liken them industry. We have seen more letters since Committee to rogue wheel-clampers, if I can use that analogy. stage which demonstrate the methods being used by There are certainly some law firms which appear to these law firms, which are of a threatening nature—some act in a way that some consider heavy-handed or six or so pages as a first letter is grossly disproportionate. unfair. However, the proper way to control the conduct I am delighted to be able to quote for the noble of law firms is through the independent regulator, and Lord, Lord Puttnam, the paragraph that the Solicitors that is what we are doing. Following discussion of this Regulation Authority has sent to both me and the matter in Committee, we wrote to the Lord Chancellor, Minister in more or less identical terms: as has been heard, to bring this matter to his personal “We appreciate the impact that receiving letters from ACS:Law attention. As you know, we have received a reply from is having on individuals, and the need to bring this matter to a the Ministry of Justice, and a further letter from the conclusion as soon as we are able. However, we have to undertake Solicitors Regulation Authority. These letters explain a thorough investigation to ensure the right outcome in the public that there have been complaints and a thorough interest”. investigation is under way. Like all noble Lords, I wish It has assured several noble Lords that it will keep us it could act more promptly and we could bring this to informed of progress. an end. With respect, I mention to the noble Lord, Lord It is fair to say that we expect that copyright owners Gordon, that Amendment 100, which he talked about, will want to use this notification system to tackle is on a wholly separate issue—appeals against technical appropriate cases. Indeed, should the Bill become an measures—and does not cover the matter in hand. Act, the courts may choose to view the approach We are pleased that the SRA has said that it will taken within it as an example of good practice for deal with this with dispatch. However, we feel something cases of this sort—although clearly this would be for in the order of the amendments tabled by the noble the judiciary to decide. 1261 Digital Economy Bill [HL][1 MARCH 2010] Jobseeker’s Allowance Regulations 2010 1262

We believe that the notification system is fair and expression of sympathy, I would like to hear an expression proportionate, and we hope that it will be effective. of the determination to deal with this question if it However, we do not believe it is right to remove continues or gets any worse. It would be immensely flexibility from the courts and copyright owners in the helpful to hear that from the Government and to way these amendments seek to. There will be occasions, know that this is not a permanent disfigurement on as my noble—I nearly said friend—the noble Lord, the face of copyright law and practice. If the SRA Lord Howard, quite rightly pointed out, when the cannot deal with it, we will find some other way of notification system is just not appropriate, and there is dealing with it ourselves. It would be a great comfort no justification for adding extra difficulty to those to know that that was the Government’s position. cases. I remind noble Lords that the graduated approach which we seem to accept as the right way forward was Lord Young of Norwood Green: Perhaps I can be of really designed to deal with the mass problems of help. We will continue to pursue this problem with the peer-to-peer file-sharing. That is why we talked about Ministry of Justice and the SRA. I give that assurance behavioural change, and why that was appropriate. because we share the concerns that this problem does However, in certain cases this is not appropriate—for not look as though it will go away even if the Bill is example, where people are stealing or infringing high-value enacted. I can give that assurance, if it helps the noble copyright, or where there is a need for action to be Lord. taken more promptly—then, as the noble Lord, Lord Howard, said, we cannot deny copyright holders an alternative approach. This notification system will not Lord Lucas: My Lords, that is appreciated. I am be appropriate, and there is no justification for adding sure that my noble friend on the Front Bench also extra difficulty to those cases. shares those sentiments, but I will not press him to go The right to access the courts is a fundamental one, outside the rules of Report. With grateful thanks, I and to limit this in any way may infringe upon basic beg leave to withdraw the amendment. human rights, as well as on the free exercise of the property right in copyright itself. It is not that we do Amendment 15 withdrawn. not want to be of assistance—we want to help. However, going down the route suggested in these amendments Amendment 16 not moved. unfortunately will not solve the problem. Consideration on Report adjourned until not before I will rest on this final point, which is another 8.44 pm. reason why we cannot accept the amendments however much we sympathise with their aim. The right to take action against a person who has infringed your copyright Jobseeker’s Allowance (Skills Training is enshrined in international and European law. There is also a more fundamental question here: the right of Conditionality Pilot) Regulations 2010 access to the courts and access to redress for a civil Motion to Approve wrong. Human rights are engaged, as well as matters of constitutional law. This is a matter that needs to be 7.43 pm solved through regulation, not by interfering in these basic rights. It is not that we do not have a great deal Moved By Lord McKenzie of Luton of sympathy. In a way, we wish that we could do this. Unfortunately, however, the suggested remedies are That the draft regulations laid before the House not capable of being introduced, and they are not on 15 December 2009 be approved. appropriate for the reasons that I have mentioned. Relevant documents: 4th Report from the Joint I hope the noble Lord will recognise that we have Committee on Statutory Instruments and 5th Report treated this matter seriously and that we will continue from the Merits Committee. to do so. We will continue to press the Ministry of Justice and the Solicitors Regulation Authority to act on this. In the light of the points I have made, I hope The Parliamentary Under-Secretary of State, he will feel capable of withdrawing the amendment. Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Lord Lucas: My Lords, as the Minister pointed out Luton): My Lords, these pilot regulations will implement when he referred to rogue wheel-clampers, it seems to the Government’s proposal to introduce increased take a very long time and the suffering of tens of obligations for jobseeker’s allowance customers to thousands of people before a Government will move undertake training from 26 April 2010. Perhaps it to deal with an abuse that has some justification in would be helpful to explain how this fits with the fundamental law. Rogue wheel-clampers are merely current core regime for jobseekers. enforcing their rights of private property. I suppose The department is currently introducing a new that bailiffs are doing an excellent job in retrieving lots jobseekers regime and implementing the Flexible New of money for the public purse and for creditors. Here Deal, which builds on the successes of the outgoing we have another case where many tens of thousands of new deals, to offer a much more personalised and people are subject to something that is not as we responsive service to jobseeker’s allowance customers. would wish it to be in a proper and perfect world. The new regime offers increasing support to people I appreciate what the Minister said about there during the first 12 months of their jobseeker’s allowance being deeper questions here, and I understand that my claim and expects individuals, in return, to undertake own Front Bench shares those qualms. Other than an more activities to return to work the longer they 1263 Jobseeker’s Allowance Regulations 2010[LORDS] Jobseeker’s Allowance Regulations 2010 1264

[LORD MCKENZIE OF LUTON] need, they do not always take up or complete provision remain unemployed. This is particularly noticeable to address that need. They often simply give up or lose from the six-month stage in a claim, where jobseekers interest. are required to undertake particular activities to improve It is not acceptable that those who are disadvantaged their chances of finding work. After 12 months, individuals fail to address the very issue that could prevent them will join the Flexible New Deal which is provider-led from realising their potential. That is why we have and aims to deliver whatever support a person needs designed the JSA skills conditionality pilots so that we to move into work. can learn whether equipping people with the right Of course, the recession has made things tougher. training means that they can ultimately get sustainable But the Government have responded by making available jobs and move away from a life on benefit. up to £5 billion to provide significant extra assistance The proposal to pilot skills conditionality was first to help jobseekers find work. That means that more announced in 2006 and details have been included in a help is now available to everybody prior to redundancy series of Green Papers. Meanwhile, the Social Security and from the start of a claim. Those out of work for Advisory Committee carried out a consultation on six months or more have access to new support, the regulations. We are grateful to SSAC and to those including retraining opportunities. Furthermore, all who responded to it. We acknowledge the concerns of 18 to 24 year-olds are guaranteed an offer of a job, SSAC about why the department did not conduct a training or work experience through the young persons full consultation on these regulations, and as a department guarantee after six months on JSA. we will continually look at how we can improve in this area. DWP is not averse to consultation; indeed there The Government are also introducing the new were 26 separate consultations during 2009, and there integrated employment and skills service in which have already been six consultations this year. We take early contact with Jobcentre Plus and a learning provider the comments of the committee seriously and the or adult careers services will provide the range of Permanent Secretary has recently stressed the importance services to address the specific skills needs of customers of consultation to senior officials. and overcome employment-related barriers to work. In return for this support, the Government expect In this particular instance, DWP quite rightly placed individuals to take increased responsibility and have great emphasis on introducing the recession measures committed to take the legislative powers necessary to that were urgently needed to combat rising unemployment. pilot requiring jobseeker’s allowance customers to address The enormous amount of officials’ time required for their skills needs as a condition for receipt of benefits. those measures unfortunately resulted in a wider This pilot will run in 11 Jobcentre Plus districts that consultation not taking place before SSAC was consulted. have already embedded both the Flexible New Deal For this, I apologise. We do, however, consider that and IES services. those who responded to the SSAC consultation would have raised similar questions to a DWP consultation. We know that skills and qualifications play a vital The Social Security Advisory Committee formally role in improving labour market outcomes, both for reported to the Secretary of State on 28 September individuals and society. Those with higher qualifications 2009 and its advice was not to proceed with the pilots, are more likely to be employed and earn more than as it had some concerns about the design of the pilot people with lower level or no qualifications. Around and the impact of sanctions. However, it made a series 4.6 million people possess no qualifications at all and of recommendations, the majority of which have been 3.5 million of those fall into at least one other priority accepted. These include delaying the start of the pilot group—they are disabled, aged 50 or over, a lone to ensure resources are in place, producing a clear parent or from an ethnic minority. The employment communication strategy for customers and putting rate of those with level 2 qualifications or above is necessary training in place for advisers. around 20 percentage points higher than those with qualifications below level 2 or with no qualifications. The recommendations that were not accepted included delaying the pilot until the IES service had been fully We want to make sure that jobseekers understand evaluated and reconsidering the design of the pilot. that it is not acceptable to refuse the help that could We rejected those recommendations because we believe provide them with greater life chances. My noble that the evaluation approach is robust. It has a friend Lord Leitch said in his final report: randomisation element to make sure that any differences “Individuals must raise their sights, aspirations and motivation between the test group and control group are not due and invest in their own skills. Where skills were once a key lever to specific characteristics of the individual, such as for prosperity and fairness, they are now increasingly the key motivation, preferences or background, but just simply lever. The UK can only achieve world class prosperity and fairness due to the effects of mandation. Meanwhile, IES is if it achieves world class skills”. fully operational in the pilot locations where skills For those out of work, the skills that they have to mandation will apply. As such, we can find no reason offer employers are critical to their chances of finding to delay the pilot until IES is fully rolled out. a new job. There is a direct relationship between how Subject to approval of the regulations, these pilots good a person’s skills are and what their prospects are will build on the existing IES service where jobseekers for employment. The longer a jobseeker remains on who have been unemployed for 26 weeks will have benefit, the greater the levels of support. But in return their needs assessed and if there are skills barriers they for this support the Government rightly expect individuals will be referred to training. In the pilots, customers to step up to those requirements. However, we know will be randomly allocated to either the test mandatory that even where a customer has identified a training training group or the control group, according to their 1265 Jobseeker’s Allowance Regulations 2010[1 MARCH 2010] Jobseeker’s Allowance Regulations 2010 1266 national insurance number. The regulations will empower Jobcentre Plus advisers to refer customers in the test Amendment to the Motion group to training in the full knowledge that they could incur a sanction. All the pilot areas already have the Moved by Baroness Thomas of Winchester Flexible New Deal in place and this sits well with skills Insert from “but this House regrets that Her conditionality as this regime requires that customers Majesty’s Government have not followed the advice increase conditionality requirements the longer they of the Social Security Advisory Committee not to claim benefits. proceed with the draft Regulations.” This measure was also considered by the Merits Committee on 12 January, and I will touch now on Baroness Thomas of Winchester: My Lords, at first just a couple of the comments made by the committee. glance this looks like an extraordinary Motion to It was noted that the two previous skills pilots were move about something as welcome as a pilot scheme not successful in identifying positive outcomes for to improve skills training among those who are looking customers involved. Indeed the results were not for jobs. I must say straight away that we on these encouraging. However, the conditions under which Benches are as keen as anyone for those who are out of these new pilots will operate will be very different to work and on jobseeker’s allowance to be offered suitable those which prevailed in previous trials. These new training to enable them to learn new skills or hone trials will be offering a wider variety of training that existing skills in order to find a job. That is not the may or may not lead to a formal qualification, for issue before the House this evening. example pre-employment skills including CV writing and interview technique, IT skills or Construction The key to the reason I have moved the amendment Industry Training Board training. to the Motion lies in the word “conditionality”, which means that in the pilot areas certain jobseekers are Another key difference to previous pilots is the going to be forced to take skills training on pain of integrated employment and skills service that is already losing a good part of their benefits if they default. My running at a steady state in the 11 pilot districts with criticism of this order is based on two hazards: whether Jobcentre Plus and the Learning and Skills Council—soon the pilots are being introduced prematurely and the to become the Skills Funding Agency—working together nature of the pilots. on the ground to make sure customers can access At this point, I remind the House, as the Minister training that will help them move into jobs. did, that the Merits of Statutory Instruments Committee has drawn these regulations to the attention of the The Merits Committee also raised an issue originally House on the grounds that they may imperfectly achieve made by SSAC concerning our ability to produce their policy objective. robust evaluation when these pilots are running concurrently with the Flexible New Deal. First, I turn to the timing of the pilots and whether they are being introduced prematurely. We are told We are confident that we will be able to distinguish that this pilot is different from the other pilots held in the effects as they have been designed to deliver very 2001 and 2004, when skills training was sanctioned. different things. These pilots will specifically measure Not surprisingly, the Government are keen to distance the impact that skills training has on employment themselves from the results of both those pilots, which outcomes. The objective of the randomisation process showed that sanctioning basic skills training actually is to establish two groups—test and control—that are had a long-term negative impact on the participants as identical as is practical in all their characteristics. getting a job. We are now told that this training will be The only difference is that one group may be mandated different because of the new one year-old integrated with the threat of sanctions, and the other not. This employment and skills service, but we do not know means that the effect of the Flexible New Deal should how different or exactly what is being developed. This be similar in both groups. When we measure the integrated approach has been adopted, as the noble different job outcomes between both groups, we are in Lord said, following the Leitch report in 2006, which fact looking at the effect of mandation, independently identified that current skills and employment services of the participation of individuals in the Flexible New had different aims, which meant that delivery could Deal. be complex, with an array of agencies trying to give help and advice to people. Although this integrated Those in both the test group and control group will service is not fully operational until next year, we are be identified by a pilot marker and the customers will told that it is far enough advanced in the new pilot be tracked over a longer period—up to 2013—to look areas for more satisfactory pilots than the earlier ones, at achievement of sustained employment outcomes. which first sanctioned skills training for jobseekers, to It is right and fair that the state continues to support take place. people during times of unemployment. However, the The Government have to their credit delayed the right to support comes in exchange for taking clear start of the pilots from January of this year to April, steps to improve circumstances. To help customers at the request of the Social Security Advisory Committee achieve their aspirations, we will continue to work which, it must be stressed, said that this was the least with employers who want to recruit people with the that must be done if the Government were going to right skills. Improving the way we work with employers ignore its original advice not to proceed with the pilots by understanding what skills they need and providing at all. relevant training to jobseekers will be a key aspect of The SSAC is in no doubt, however, that this is a our approach. I beg to move. very risky venture and says: 1267 Jobseeker’s Allowance Regulations 2010[LORDS] Jobseeker’s Allowance Regulations 2010 1268

[BARONESS THOMAS OF WINCHESTER] with customers, and the negative effects of enforcing obligations “The proposed Mandatory Training pilot is scheduled to start (via the threat of, or actual sanctioning) on the service relationship. before the new services are fully up and running and we would This contradiction might prove complex to overcome”. question whether it is sensible to commence a complex, mandatory Later in the evaluations report, and more specifically, pilot before key services are in place and established”. we are told that there is a perception that mandating During questioning of the Minister by the Merits activities and threats of sanctioning can be unconstructive Committee two months ago, we were told that work- to establishing a good adviser-customer relationship, focused training in the pilot areas is to be linked to and that some staff were reluctant to sanction. This vacancies in the area. If this provision is new—and it may account for another finding, which is that claimants sounds like a welcome development—should not a were often leaving interviews without fully understanding voluntary system at least be trialled rather than having the sanctioning regime. This is certainly the experience the threat of sanctions hanging over the whole procedure of many CAB officers around the country. from the outset? This brings me to the design of the pilots, about which there is a lot of concern. There are to be two 8pm groups—the noble Lord told us how it would work—one Is there not a danger that, with all the initiatives is the treatment group, where non-attendance at training already being rolled out at Jobcentre Plus offices, the could risk benefit sanctions from Jobseeker’s Regime waters are in danger of being muddied with what is on Flexible New Deal stage 3; the other is the control offer and how it is being delivered? Are personal group, who do not risk this sanction. The groups will advisers in Jobcentre Plus offices in the pilot areas be chosen by randomisation; that is to say, the personal being sufficiently trained in how to manage this complex adviser locally will use the final digit of the claimant’s and expensive trial? Having read quite a bit of the national insurance number. An even number means recently published evaluations of the Jobseekers Regime that the claimant will go into one group, an odd and Flexible New Deal, the Six Month Offer and number and it will be the other group. We are told that Support for the Newly Unemployed, I am not convinced claimants will be told exactly what is going on, but I that this is the case. For example, on page 162, in a wish that I could fully believe this. Where the complexity paragraph about the design of the Flexible New Deal comes in is the assumption that the skills needs of needing a more personalised approach by JCP advisers, claimants are evenly distributed across both groups, so there are some alarming findings. The document states: that apples can be compared with apples and not with pears. This will again put a lot of responsibility on to “In general, a lack of training and support for the new approach placed advisers at a disadvantage, particularly the new JCP personal advisers. I hope that their training on recruits and New Claim advisers. Such advisers often lacked this very specific activity is adequate. awareness of the range of local provision available to which they There is to be full evaluation of this pilot. The could refer or signpost customers. Under time pressures, training Minister told the Merits Committee that it will tell us was often not completed before new recruits were placed in posts “once and for all” whether sanctions for training work, and the electronic format of the training was often considered unsatisfactory.As a consequence, many advisers lacked the experience, but I wonder whether the jobs market is stable enough confidence and sometimes motivation to exercise their discretion”. for this really to be the case. We were told that pilots On page 28, we read: will not be held in areas of very high unemployment, “A recurring theme was that the time pressures imposed by the but our chairman pointed out that one of the pilot recession had curtailed the amount of training staff were able to areas was to be Lambeth, where TUC figures show undertake”. that in January last year there were 29 claimants for The document further states: every vacancy. I cannot believe that the figures are “Generally, the speed of change and the volume of new much better now. I should have said earlier that I am a material posed a challenge to staff who were implementing the member of the Merits Committee, which is why I talk new recessionary measures—Support for the Newly Unemployed about “our chairman”. and the Six Months Offer. The introduction of these services was I note that the first of the four types of training the considered to be ‘rushed’ in Phase 2 districts and ‘too much, too quickly’ when combined with the Jobseekers Regime Flexible department is offering is literacy and English for speakers New Deal”. of other languages. Looking at ESOL first, if this These comments do not instil confidence that JCP training is to be mandated, I assume that it will be free staff are ready for yet another pilot. Is the Minister and that there will be enough classes at various levels really certain that by April all will be well and all the in all the pilot areas. Will the Minister confirm this? personal advisers in the relevant districts will have We know that the Government now charge for ESOL received adequate training for this new and complex classes, so I would be interested to know whether all pilot? participants will be learning together, or whether those who are mandated will be taught separately from While looking at the evaluations, I see that there are those who have to pay. I assume that literacy and also some disturbing, although not surprising, findings ESOL are separate, with literacy being appropriate for about sanctioning that are relevant to this debate. On native English speakers, so will there be two distinct page 157 we read: classes, one for native English speakers perhaps to “The planned changes to the adviser service culture were seen learn to read and write better and other classes for to be developing but as yet not much adjustment had occurred. Alongside this, the expected changes in customer obligations”— ESOL? presumably, this means sanctions— Looking at training more generally on offer for “did not seem to be delivered to the extent planned. In this, the these pilots, is the Minister convinced that all training early signs indicated a perceived contradiction between the advisory providers will accept mandated claimants on to their service giving flexible, personalised delivery through their interactions courses? It is an absolutely vital point. The SSAC is 1269 Jobseeker’s Allowance Regulations 2010[1 MARCH 2010] Jobseeker’s Allowance Regulations 2010 1270 concerned that without guaranteed access, the situation paragraphs 12.1 and 12.3 do not even mention job could arise whereby a mandated claimant is turned outcomes. In fact, job outcomes is the last of the four away from a suitable course. I am sure the Minister’s bullet points in paragraph 12.2. Can the Minister brief will make the point that the integrated employment define what is meant by a successful job outcome? Are skills service will ensure that this is not the case, but we talking about a permanent job or a temporary job? the SSAC report is not convinced and nor am I. It What exactly does it mean? Overall, does the Minister says: not agree that the evaluation should be clear and easy “If the training and support on offer are genuinely attractive to understand? and effective there would appear to be no need for a mandatory Paragraph 7.2 of the Explanatory Memorandum programme”. lists four bullet points on which training is to be I make no apology for raising at this point a problem modelled. They are I asked the Minister, Helen Goodman, about during the Merits Committee cross-questioning in January. I “Basic Skills and English language for speakers of other languages; … Employability skills; … Short, job focused training was concerned about the high number of people “failing” of up to eight weeks; and … Other job related provision”. the new work capability assessment, which has meant that more people are being put on JSA rather than This, too, is extraordinarily vague. I wonder how ESA. This will mean that inevitably there will be some effective this will be as a direction; not very, I fear. Will claimants who have mental health problems and some the Minister give us a little more detail—I know he who are likely to be on the autistic spectrum. Although mentioned some on introducing the regulations in the we know that claimants with disabilities are supposed first place—about the type of training that will be to see a disability benefit adviser, I am not convinced provided? How does he envisage that people will be in that the people who fall into the categories I have a better position to get jobs afterwards? mentioned will in all cases find their way to such a Given there is already strong criticism about the person. standard and content of training that is given by For example, I know of one case where a mother jobcentres, where it is often described as “one size fits was not available to take her autistic son to attend an all”, can the Minister assure us that training will be interview and was worried that his social worker was more intelligently tailored to meet individual participants’ on holiday. She was told that only one change of needs? Like the noble Baroness, Lady Thomas of appointment was allowed before sanctions would apply. Winchester, I should like to ask about the qualifications I have just been told of another case where a claimant of the people who assess the training needs. What was on the highest rate of disability living allowance qualifications or training do they have in personal who failed his WCA with zero points. On appeal, he development? was awarded the necessary 15 points. Could the Minister What further action are the Government taking to tell us if it is really true that nine out of 10 applicants ensure that the record number of young people, the now fail the WCA? I am hearing about these cases all NEETs—those not in employment, education or the time and I am sure that the Minister is too. There training—are being quickly placed on suitable training is a strong belief in the advice sector that the Government courses? Can the Minister tell us how involved businesses have given ATOS targets to fail people who go for a and employers will be in identifying the skills needed WCA. If this is bunkum, will the Minister refute it in the pilot areas? Can he provide assurances that categorically? customers will receive skills appropriate for the job Finally, I must come back to where I started by market? emphasising that we on these Benches are very much However, where we are particularly worried is with in favour of skills training. We despair as much as regard to the time it will take to evaluate the pilot. We anyone about the large number of NEETS—those are in the middle of a severe recession. When do Her young people not in education, employment or training— Majesty’s Government anticipate publishing the results and believe that as much as possible should be done to of this pilot? Given that the Government closed a try to upskill this group so that they can get good jobcentre every week in 2008, while unemployment quality and sustainable jobs. However, we have grave was rising, can the Minister assure the House that the misgivings about using the threat of sanctions to get jobcentres involved will have the appropriate resources these young people and, indeed, all relevant jobseekers, to implement the pilot? to engage with training. I beg to move. The UK still lags well behind most of our competitors Baroness Morris of Bolton: My Lords, we on these regarding adult numeracy and literacy. The number of Benches very much welcome the policy direction of people who have taken up skills for life programmes is these regulations. It is absolutely right that every effort far less than the number of adults without basic should be made to ensure that the welfare state is not a literacy and numeracy skills and progress has been something-for-nothing concept, that its resources are limited. Does the Minister accept that a new approach protected for those who truly need them and that they needs to be taken to ensure that we do not get left even are not used up by those who can work and contribute further behind? What plans are in place to ensure that to society and the economy, but who choose not to. this does not happen? However, like the noble Baroness, Lady Thomas of Lastly, paragraph 4.3 of the Explanatory Winchester, I have reservations about these regulations Memorandum mentions data sharing. Given the various and a number of questions I should like to ask the recent blunders with data going into the public domain, Minister. when such details should not have been released, will First, the monitoring and review process referred to the Minister please explain what protections on data in the Explanatory Memorandum is rather vague and sharing are in place? 1271 Jobseeker’s Allowance Regulations 2010[LORDS] Jobseeker’s Allowance Regulations 2010 1272

[BARONESS MORRIS OF BOLTON] However, I absolutely understand the need for At a time when long-term unemployment is still conditionality. To use a very inelegant metaphor, it is a rising, when more than 1 million people who are bit like manure. If you spread the conditionality at the fortunate enough to be in part-time work want a appropriate dosage over the appropriate surface, it full-time job and when employment continues to fall will work and be to everyone’s benefit, but if you pile it to the lowest rate for 13 years, we need bold action to on in a corner, then people will get hurt—the plants get Britain back on its feet and on the way to work. will be destroyed. I am sorry; I should have thought That means we cannot continue with a top-down, about that metaphor earlier. unpersonalised approach to policy. I repeat that we welcome the concept of these A noble Lord: Stop digging. regulations, but we have concerns about the quality, the appropriateness and the lack of individualised and Lord Kirkwood of Kirkhope: I shall move on quickly bespoke training that will lead to the outcomes we all but I have made the point. Conditionality is now an want, which are sustainable jobs and progression in important part of the regime that we are working with work. Frankly, I have to say that we do not believe that and everyone understands that. My noble friend made these regulations are up to the task, considering the that quite clear and I concur with that view. However, scale of the problem this country faces. I look forward conditionality has to be applied very carefully if it is to to the Minister’s response. work. Against that background, my second point is that 8.15 pm the balance of power—if I may put it in that rather dramatic way—that exists between the client and the Lord Kirkwood of Kirkhope: My Lords, I support personal adviser is crucial here as well. We have had the amendment that has been so capably moved by my many happy debates on this subject during the Committee noble friend Lady Thomas of Winchester. Before I do and other stages of welfare-to-work Bills in the past, anything else, I should just remind the House that I and if it is true in most other circumstances, it is am a non-executive, non-remunerated director of the absolutely true here. If this is to be a tailored, personalised Wise Group, a job-provider in Glasgow. service, which is what the Government lauds it and I also start by saying that I think the work that has argues it to be, then at the point where the client comes been done by the Social Security Advisory Committee into the integrated employment service, he or she and the Merits Committee on these regulations is, as needs to feel that there is an element of control—that ever, immensely helpful. My previous incarnation was they can make suggestions—in order to get to a better in another place, where a merits committee just does place. If that kind of approach is taken rather than not exist, and it should take a tip—it should take telling them what they need to do, they start the many tips—from what happens in this place. The journey back to work in a much better and more Merits Committee is extremely important and particularly positive way. If we are to have a personalised system at this time because there are so many statutory under these regulations, the personal advisers need instruments coming through. I do not need to tell the to be sympathetic to that question overall. I want to Treasury Bench that because it has to do them all. come back to the training points that my noble friend Trying to make sense of the volume of stuff that raised, but a key point for me is that, when clients have comes out, particularly from the Department for Work left the interview, they should feel that they have had and Pensions, is very hard. I am deeply grateful for the some control over the training requirements being work that the Merits Committee and the Social Security offered to them. Advisory Committee do in trying to interpret the Thirdly, this issue is often talked about in terms of importance and significance of the content of the an integrated employment service and a skill, but there policy that they contain. are different changes in the different constituent parts I, together with colleagues who have already spoken, of the United Kingdom. That is not an insignificant am very nervous about these regulations, and part of point because things are done differently in Scotland, that nervousness derives from my experience in the Wales, Northern Ireland and England. However, within Wise Group in Glasgow. One thing that training providers the skills approach it must not be forgotten that a lot tell you is that they are loath to get involved in dealing of clients need biopsychosocial support before they with conscripts. My noble friend mentioned that. There can be shown how to be a plumber. They come from could be a situation where people join training groups very disadvantaged places and their psychological situation simply in order to shelter from the conditionality needs to be recognised holistically. You cannot simply regime contained in these regulations. If you are to be sign them up to a further education college course and successful in training, you need an engaged group of expect them to survive. Steps need to be taken before people who are willing not just to turn up but to they reach the position where they can go into a switch on their brains and think carefully about what further education college and survive. All that is important. they are being told and to do the necessary follow-up I think that such progression is properly understood in homework, whether it is English classes or anything most cases, but there will be people in this stage 3 else. If two or three people in a small group of students Flexible New Deal client group who need holistic or clients are there merely because they are sheltering support before they go on to what everyone else would from their benefit reductions, that will create a very understand as proper skills training. If that is not unhappy situation because the training group will properly observed by these regulations and by the suffer as a result. I do not think that that has begun to personal advisers who implement them, the policy will be understood in these regulations. not succeed. 1273 Jobseeker’s Allowance Regulations 2010[1 MARCH 2010] Jobseeker’s Allowance Regulations 2010 1274

Distance travelled is just as important for those autumn would have been better, because, once we have clients who are furthest away from the labour market the Comprehensive Spending Review, when the new as are job outcomes. In the evaluation—and I have Government are in place—whosoever they are—we some doubts about the suggestions for the evaluation will see some changes that will affect the public sector of these pilot schemes—the distance travelled from workforce substantially. That will dramatically affect, where people are when they come into the integrated I fear, the number of cases that the integrated employment employment service towards a position where they service will have to cope with. Who will be the people have any hope of competing in the labour market is who suffer most? It will be the stage 3 Flexible New equally important. If we do not recognise that people Deal people, because they are the most disadvantaged. need to make that journey and that those who make Therefore, I think that these pilots are premature. the transition get much closer to the labour market They are not only premature, but I am not convinced than they were when they started, we are not being fair that there are sufficient resources in play to be confident to the efforts that they are making. The system needs that they will do the job that they seek to do. As I said, to recognise that. it is hard to feel confident about the methodology. Against that background, staff training is important, I am in favour of trying this. As my noble friend as my noble friend said, but the amount of time that said, upskilling people and getting them closer to the clients have available with the staff after they have labour market is something that we all have an interest been properly trained is equally important. I am told in. If my colleagues and I on this side sound critical, it various things about how often and how long clients is not because we do not will the end; it is because we get with personal advisers. I am assuming that the just do not think that these regulations will do what 3,000 new people whom we have taken on are all now they set out to do. If that is the case, it is matter of properly trained. They have not been around for very great concern and I hope that the Minister will respond long and I hear stories about the training being cut. as best he can to some of the legitimate complaints However, if the training is inadequate and people are that people have made about these regulations. only getting 10 or 20 minutes at a time, the transformation that is necessary to get some of these clients in stage 3 of Flexible New Deal into anything approaching a 8.30 pm trade or an apprenticeship scheme is a long, long Lord McKenzie of Luton: I thank the three noble journey and it will not start properly unless the personal Lords who contributed. I can summarise the mood of advisers are both well trained and able to give the help the debate as being in general supportive of the direction when it is really needed. of travel with some concerns about some of the detail—in In my experience—and any provider will tell you some cases, quite a lot of the detail. Questions were this—in a journey to work, people suddenly get it. asked and points were made and I shall deal with as Invariably, if the process works, a light bulb goes on in many of them as I can. people’s heads and they say, “Okay, if that is what I The noble Baroness, Lady Thomas, spoke about need to do, I understand that now and I am ready to concerns about conditionality, although that is now really put myself into this”. If they are not into it, if well embedded in the system of our welfare reform they are resistant or recalcitrant, or if they are conscripts, programmes. The vast majority of JSA customers you are not engaging with them at all. However, when comply with the conditions imposed. Just one in 10 has the light bulb goes on, the system needs to recognise their benefits sanctioned. Research has shown that that and move quickly so that support follows and sanctions influence the behaviour of claimants. A there is a successful outcome. Personal advisers need survey of around 3,000 JSA customers found that to be alive to that moment happening and make sure almost half said that they were more likely to look for that they do not miss it. Lack of staff training and work as a result of sanctions. We expect fewer than lack of access by individuals to their personal advisers 400 sanctions to be applied during the pilot. Jobcentre are a roadblock to that. Plus already has a robust sanctioning regime that I want to make a point about baseline evaluations, ensures that customers are given an opportunity to which I just do not understand. I am reading from the claim good cause and thereby avoid a sanction. Vulnerable fifth Merits Committee report, at page 9. There is a customers can claim hardship allowance and all customers statement from the department, but it is not explained have full rights of appeal against any sanction decision. anywhere. I have never heard anything like it before. It Guidance being developed for advisers will ensure claims that the, that the risk of sanction is minimised by ensuring that “DWP anticipate a ‘projected 5% increase in attendance rates’ customers’ views and concerns are addressed and and assume that ‘for every 10 additional individuals who complete incorporated in the action plan, referring customers provision because of conditionality, an additional year of employment with motivational barriers to appropriate support before will be generated’”. moving them on to the necessary skills training, and Where does that come from? Is that a guess? Is agreeing the type and duration of training suitable to there some research? Is there any international experience address the individual customer’s skills needs and to that justifies that? It seems to me to be completely move that customer closer to the labour market. I unsubstantiated. It is an example of how the evaluation agree with the noble Lord, Lord Kirkwood, that having of these regulations and the basis on which they are willing people who want to undertake this is a key set up leaves a lot to be desired. barrier. Customers will be given choice, wherever possible, I agree with my noble friend that the timing of over full-time or part-time training, the venue and the these pilots is too soon. I would have been much start date. However, where there is a skills need, doing happier if they had been at least later in the year. The nothing will not be an option. Explaining clearly to all 1275 Jobseeker’s Allowance Regulations 2010[LORDS] Jobseeker’s Allowance Regulations 2010 1276

[LORD MCKENZIE OF LUTON] allows us to isolate the impact of other factors that customers what the pilot is about, the importance of might also have an effect on employment outcomes. attending training and the impact of sanctions will The aim of the random assignment is to split the be key. customers eligible for skills training conditionality Advisers will be fully trained to identify skills needs, into two groups, as she identified. The randomisation to respond to them and to handle the randomisation will occur once a skills need has been identified and of customers. An early evaluation of the IES shows relevant training has been agreed and recorded on the that customers value adviser discussions. The noble customer action plans. The randomisation will be Baroness, Lady Thomas, referred to adviser training done locally by the personal adviser using the final and suggested that it was poor in the Flexible New digit of the customer’s national insurance number. We Deal regime and the young person’s guarantee. The have committed to a clear customer strategy in response early findings outlined will be taken into account as to the concerns raised by SSAC. We will inform all the JSA regime and the recession measures bed in. customers about the pilot and ask for their consent for However, it is essential that we get recession-based their data to be used for research and analytical purposes support in place quickly. when training is agreed on the action plan. Referrals for sanctions decisions are identified by The noble Baroness, Lady Thomas, referred to Jobcentre Plus front-line staff and are referred to a people with health conditions, particularly mental health Jobcentre Plus decision-maker to look at the facts, conditions. It is not our intention, and never would be, including the customer’s side of the story. The decision- to bully people into training, as the Merits Committee maker is impartial and will consider evidence from the might have suggested. Those with health conditions adviser and the customer set against the regulations will be able to seek specialised support from the Jobcentre and case law. If the doubt is upheld, the claim is Plus disability employment adviser and will be able to suspended and no payment is made for the time that place reasonable restrictions on their availability for the individual failed to meet the conditions. So far as work and for any training, due to their condition. We someone being mandated to training and the training have discussed this on a number of occasions, so the provider not taking him is concerned, if that is not a noble Baroness will be aware of what happens in good cause, I do not know what would be one. It relation to sanctions for customers with mental health would be difficult to see that situation, if it came to issues. We recognise that the customer’s mental or pass, leading to sanctions. physical condition may impact on their requirements while on JSA. If a customer has failed to attend an The noble Baroness, Lady Thomas, said that there appointment or has committed another act or omission is a contradiction between mandation and flexibility. that warrants a sanction, the Jobcentre Plus decision- We do not accept that. The range of support on offer maker will consider all the available evidence before in the new JSA regime is flexible and tailored and applying a sanction. This can include, but is not limited offers a wide range of choice. It is only if a jobseeker to, whether the failure was caused by a fluctuation in refuses to take up any of this support that sanctions their health condition. Every effort will be made to come into play. This in no way limits choice or flexibility. contact vulnerable customers before applying sanctions, The principal objectives of the evaluation of the to make sure that they understand what is required of JSA skills conditionality pilot are to determine: whether them. We would not sanction someone with mental the new measures impact on short-term or long-term health problems without contacting them or their job outcomes; whether the new measures impact on carer or healthcare professional first. sustainable employment; whether they impact on starting The noble Baroness, Lady Thomas, asked about the and completing training and the acquisition of training courses, in particular ESOL, and mandation. qualifications; the impact that the threat of sanctions We are confident that there will be a sufficient number has on customers’ social and psychological well-being; of courses available and we are working closely with attitudes to training; attitudes to work; what is required providers to ensure that good-quality courses will be to implement the new measures well; and how any available to these customers. ESOL and basic literacy economic benefits that are generated compare to the courses will be separate and mandated customers will costs. have a training allowance. The noble Baroness also The evaluation of the pilot will begin soon after the referred to the WCA. The WCA is a more accurate pilot starts. There will be different interim reports assessment of limited capability for work, looking at during the life of the pilot, covering quantitative and what a person can do as well as what they cannot. On qualitative elements, which will continue for up to two 19 January, there was an official publication of WCA years after the end of the pilot. From previous experiences, national statistics. Figures showed that, for all ESA we know that the effects of employment programmes claims in the quarter from March 2009 to the end of are not immediate and that we need to observe them May 2009, 38 per cent were assessed as fit for work, over a longer term to capture their effects. For that 5 per cent as suitable for the support group and 12 per reason, the evaluation intends to cover short-term, cent as suitable for the work-related activity group. medium-term and long-term effects. This requires more The remaining 45 per cent either left ESA before the than one stage of the evaluation, some of which will completion of the assessment or their assessment is happen even after the pilot has ended in October 2011. still in progress. The noble Baroness, Lady Thomas of Winchester, referred to concerns around randomisation. A randomised Baroness Thomas of Winchester: How many controlled trial is one of the most robust evaluation representations has the department had that these tools to effectively assess the policy being piloted. It WCAs are going wrong and are failing people? 1277 Jobseeker’s Allowance Regulations 2010[1 MARCH 2010] Jobseeker’s Allowance Regulations 2010 1278

Lord McKenzie of Luton: I do not have to hand the skills that are needed and in tailoring training to meet data on the range and volume of representations that them. They will also refer customers to the adult we have had, but I will certainly discuss this with advancement and careers service for more in-depth officials and see whether we can provide the noble analysis. Baroness with more detail. The noble Baroness also talked about data sharing The noble Baroness, Lady Morris of Bolton, talked and data security. That is a very important point. about the training on offer in trial areas. To be clear, Systems and processes are already in place to ensure we want to maximise the take-up of the existing that customers’ personal information between Jobcentre provision to ensure that there is a wide range of Plus and providers is exchanged in a secure environment training for customers. No new training provision has in accordance with the current information risk been procured. The type of provision that is being management guidance from the Cabinet Office. offered to customers in the pilot encompasses I think that it was the noble Baroness who also employability skills, as we have discussed; work-focused asked about the definition of a job outcome. We are training; short job-focused training for up to eight looking for sustainable job outcomes and will need to weeks; other job-related provision, which is available develop the evaluation strategy to reflect this. through further education and other LSC providers; The noble Lord, Lord Kirkwood, talked about the ESF-funded provision; and DWP contract support. quality of training on offer. The LSC is responsible, as Courses will be responsive to customers’ individual I said, for managing the FE sector. We will provide needs, while suitability for those courses will be based motivational courses to deal with customers who may on the training being appropriate to meet individuals’ be unwilling to co-operate before we move on to the and employers’ skills needs and being flexible enough main provisions. That is a route for helping people to meet individuals’ personal circumstances—it can be into the provision. part time or full time. However, customers will not be Early evaluation indicated that customers in the required to attend training for more hours than they IES trial areas welcomed the intervention. Many said are available for employment or for more hours than that they had a warm and supportive relationship with the total number of hours for which they are available, their next-step advisers and appreciated receiving as recorded in their jobseeker’s agreement. The training independent, professional, one-to-one advice. Advisers must also be available within a reasonable period. encouraged customers to think about new ideas and Generally, part-time training can be completed before helped to reignite their self-belief and motivation to the customer is due to enter the next stage of the progress. As the trials have been running for more Flexible New Deal if they are still unemployed at the than 12 months and processes are in place, we are 12-month point in their claim. confident that these skills pilots have a good foundation The noble Baronesses, Lady Thomas and Lady on which to develop—in fact, partnerships have continued Morris, talked about the quality of training on offer. to improve despite considerable pressure on services The Learning and Skills Council is responsible for due to the recession. managing performance in the FE sector and works I want to make it clear that the skills support can be closely with Ofsted, which is responsible for inspecting part of the jobseeker’s agreement, but it is more likely and reporting on the quality of all adult education to be included in the action plan, which I accept has and training services. an element that can be enforced, a point that the noble The noble Baroness, Lady Morris, referred to past Lord, Lord Kirkwood, was probing. He said that office closures and asked whether we were going to personal advisers need to spend time with jobseekers. resource this properly. I smiled a little when that We have implemented a new JSA regime, in which question came up, because we have debated on a advisers have much greater flexibility to spend more number of occasions the support that the Government time with jobseekers, dependent on need, from the did not have from her Benches when we put £5 billion six-month point. into capacity for Jobcentre Plus and into the programmes I am being nudged by my noble friend, so I had that have helped to address the challenges of the better move swiftly to a close. My apologies for not economic circumstances. I think that she said that we having covered each of the points raised, but I hope were in the midst of a recession, but she will be aware that I have been able to deal sufficiently with the issues that some of the surveys out there show that there that have been raised for noble Lords to support the were signs of positive growth in the last quarter of last Motion. I respectfully ask the noble Baroness not to year. press her point. Just to be clear, the programme of office closures has been suspended for the time being. Past closures Baroness Thomas of Winchester: My Lords, I thank of customer-facing Jobcentre Plus offices took into the Minister for that very full answer. I dare say that he account a range of issues, such as the impact that the was as surprised as I was that my noble friend compared closure might have on customer service and whether conditionality to manure. I am just glad that nobody the work and staff could be relocated. Our customers, said “Ordure, ordure” at that point—I am afraid that partner organisations, trade union staff and local Members that is not original. I am grateful to the noble Lord of Parliament are fully consulted when these things and to my noble friend for his support, and to the are under consideration. noble Baroness, Lady Morris. The contradiction between The noble Baroness talked about the qualifications personalised help and sanctions was raised in the of advisers. Advisers in Jobcentre Plus IES districts evaluations—I did not make it up. The evaluations are well qualified and experienced in identifying the pointed out the contradiction and showed that a lot of 1279 Jobseeker’s Allowance Regulations 2010[LORDS] Digital Economy Bill [HL] 1280

[BARONESS THOMAS OF WINCHESTER] material to lawful means of access. There are lawful personal advisers were not happy about on the one means of access. About half of those who admit to hand being very helpful to their clients and on the unlawful file-sharing also have some access to lawful other hand having to run the sanctions regime at the forms of file-sharing. Quite well known, generalised same time. However, all I can do is to wish the pilot new business models are coming on line: we have success. I shall read the Minister’s answers in Hansard. mentioned Spotify here before, but there are others. In the mean time, I beg leave to withdraw the amendment. There are 20-odd quite general forms of relatively Amendment withdrawn. cheap, relatively accessible and relatively flexible ways of getting at most copyrighted material. It ought to be Motion agreed. the Government’s objective in their policy to move the bulk of this market to those lawful forms of access. Digital Economy Bill [HL] Instead, propaganda on the Bill from the Government, and particularly from the music industry, is about Report (1st Day) (Continued) clamping down, restricting and ultimately having sanctions 8.48 pm that are disproportionate to the offence. It would help to enhance the acceptability of this Amendment 17 general approach among consumers and consumer Moved by Lord Whitty organisations if the Government recognised that their objective is to move people to lawful forms of access. 17: Before Clause 4, insert the following new Clause— We would then be dealing with what should be a “Objective of sections 4 to 16 reducing problem. At the end of all that, there will of The objective of the measures in sections 4 to 16 is to move to a lawful means of access to copyright material for consumers and course still be some who engage in unlawful file-sharing. businesses and to reduce unlawful file-sharing and other forms of However, their number will probably be reduced provided copyright infringement.” that the lawful service is reasonably cheap and flexible. They will probably largely be people who are making Lord Whitty: My Lords, I had intended to make significant money out of illegal file-sharing, or people quite a substantive intervention on this matter, but in who are manic, mega-serial infringers. We will still view of the time and the distinction of the audience— need measures to deal with them. though not the volume of the audience—I shall try to keep it reasonably short. However, it goes to the heart I would have preferred a strategy from the Government of the Bill and my concerns about the Bill. I appreciate, that recognises that it will take time to move the bulk as others have also said earlier in the debate, that the of these transactions into a lawful market. This strategy Government have come forward with a number of would recognise that serious sanctions are still needed amendments that reflect the fact that they listened to but that they do not necessarily have to involve going what was said in Committee about the inadequacies of through the kind of procedures that we were talking some of the procedure. They have particularly improved about under the present system—the threats from the early parts—stage 1 of the procedure—for which I lawyers and court action. It would, however, deal with am very grateful that. I declare my interest, if I have the residual problem. not already done so, as chair of Consumer Focus. Perhaps I may underline the problem that one faces From the view of the subscribers and those who use with consumers at the moment. Consumer Focus has digital access to copyrighted material of various forms, recently conducted a small survey of people’s this appears to be a seriously draconian Bill. It seems understanding of these matters. Three-quarters of to demonstrate a spirit that is very different from the consumers know that they do not understand what is general tone of Digital Britain and the Government’s lawful and what is unlawful. We took three transactions general approach to developing the digital economy. which are actually unlawful, one of which is copying a In those, the Government are in favour of accessibility, CD or DVD which you have bought to another format inclusion, innovation and competition. In the Bill—in so that you have a copy in more than one location. Clauses 4 to 16 and perhaps in Clause 17 as well—we Three-quarters of people believe that that is legal. go straight into what is effectively a sanctions regime One-quarter recognises that it might be unlawful, and which is protectionist, which will lead to exclusion if it 86 per cent do not believe that it should be unlawful. is successful, and which is likely to alienate a significant You get similar results on similar format shifting. number of consumers, particularly young consumers, of digital services for music and for other forms of With this level of ignorance of the law, and with digitalised copyrighted material such as sport, drama consumers adapting to the new technology rather and so on. faster than institutions and businesses, it is not surprising This is bad business for the rights holders and bad that the threat of intervention—a temporary closing-down, politics for the Government. It is not sensible to throttling, suspension or reduction of internet connections alienate a whole generation—unless you are giving an in order to enforce that—meets with significant hostility. alternative. The Government have an alternative, and We should go back to a strategy that is aimed at occasionally they talk about it. This apparently innocuous moving everybody onto a lawful system, and which motherhood-and-apple-pie clause which I am proposing emphasises that, rather than the burden of this Bill, in in Amendment 17 says that the Bill’s objective is not to which we now have 17 or 18 clauses on sanctions. It knock on the head as many unlawful file-sharers as includes nothing about a lawful system, nothing about you can find but to shift the burden of file-sharing support for the creative industries and nothing about transactions from the unlawful market in copyright making access easier and more flexible. 1281 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1282

The Government ought to think about re-presenting great shame that the Government have not laid out a the Bill and their strategy in that regard. A small step more positive objective before moving on to more in that direction at this stage in the Bill would be to punitive aspects. Without having that objective clearly put an objectives clause at the beginning of the Bill, in the Bill, I am worried that some of the resources before going into the sanctions sections. There may be that should be going into educating the public will be better ways of drafting this clause, and I would be lacking. The Minister will be well aware that the delighted if the Government came up with better ways Government’s rollout of their programme that now of drafting it. However, it would be a small but significant appears on the edge of our hotmail and other places step in making their whole approach rather more —the zip it, block it, flag it—is exactly the sort of palatable than it is to me at the moment. educational programme that should have preceded I therefore hope that the Government, if not measures like this by a good year or 18 months. Only immediately grabbing this opportunity tonight, will in that way can we start to get the message through to think that there is some merit in spelling it out here, the generation that the noble Lord, Lord Whitty, and that there is some merit in re-presenting what they talked about. The Government have got it the wrong are doing. In the long run, it would be of benefit to the way round. They should have run the educational rights holders as well as to consumers and the campaign, measured whether it had had sufficient Government. That is the intention of this clause, impact, except against serial offenders who do it for and it is pretty central to the strategy for the Bill. I beg commercial gain, and then introduced the sort of to move. measures aimed exactly at them rather than the occasional downloader or the institutions that we shall no doubt Lord Puttnam: My Lords, perhaps I may add to be discussing later. what the noble Lord, Lord Whitty, has just said, It is a pity that the Government did not commence because I basically agree with just about everything he their educational campaign well before bringing in said. I have been enormously influenced during the these measures. I can understand why they have introduced Bill’s passage by the noble Lord, Lord Lucas, and by this Bill now; they want to hurry it through before the several things that the noble Lord, Lord Whitty, has election, which is understandable, but the necessity for said. I want to make a point that is, certainly to me, the educational campaign has been known for a long terribly important. I have learnt one thing during the time. It is a pity that they have not embarked on it. Bill’s passage—the absolute indispensability of pre- What resources will the Government be allocating legislative scrutiny. The Bill has suffered grievously now for an educational campaign based on what the from not having been scrutinised by a group of the public need to know about what is and what is not entire Chamber. legal? I am glad that the noble Lord, Lord Whitty, I have been privileged to chair two pre-legislative included the results of his survey because it highlights scrutiny committees. What actually happens is that a the need for the Government to have a quick and relatively small group of people from all sides of the comprehensive campaign on the issue. House sits down, goes through the evidence and interrogates it. It finds the areas on which it agrees and then offers solutions to the Government that we hope Lord Maxton: My Lords, I confess that I am one of not only are palatable but move the process on. One of these people who on occasion does not understand the more dispiriting features of the seven days that we whether something that I want to do on the computer spent in Committee was how much of the time was is legal or not. For example, I get e-mails from a spent arguing over and discussing things that could so company called 3B Software which offers for a small easily have been dealt with by a small group of peers annual sum of about £30 unlimited access to television from all parts of the House. If there is one great lesson stations round the world and to as many films as I to take away, it is that the House should not accept want to watch. If I am paying, is it legal? I do not Bills like this without provision for pre-legislative scrutiny. know. I do not know whether if I took the offer from In that sense, I absolutely agree with the noble that company it would be legal. I would be paying for Lord, Lord Whitty. What will end up leaving this it but I do not know whether the company has the Chamber—probably lacking Clause 17, which in many copyright on the films or television programmes that it respects is a pity, although I understand the objections is offering. to it—and going to the Commons is a Bill that none of The noble Lord’s amendment brings out certain us is particularly proud of. It will be a spatchcock that things about the legislation. I was going to refer to the does part of the work it was intended to do but not all present but I am not sure whether the clauses are of it. I am absolutely convinced that, within the next about the present; they are more about the past, and two or three years, there will be another Bill before this they certainly do not take account of the future. I have House which will be created to deal with the deficiencies Virgin Media at my home in Hamilton in Scotland of the present Bill. and I can get 50 megabytes broadband. By the end of this year I will be offered 100 megabytes broadband, 9pm which will allow me to stream—not download—HD Baroness Miller of Chilthorne Domer: My Lords, quality television or film direct on to the computer. having had the privilege of sitting on these pre-legislative Noble Lords may ask who wants to watch a film on committees to which the noble Lord, Lord Puttnam, computer, but if I can wireless it to my television set I referred, I agree absolutely with him. will be streaming. Again, I am not sure whether watching I also agree with the substance of the amendment, a streamed film is legal as opposed to downloading a as noble Lords would expect, as I have added my name film which is illegal. I hope that somebody can enlighten to it. The noble Lord, Lord Whitty, is right that it is a me on that. 1283 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1284

[LORD MAXTON] Maybe we should use the existing system, as promoted Equally, we are all going to increasingly download by ACS:Law and others, and carry it through to and save on to Cloud technology. We are not going to prosecution. This sounds a bit illogical, I am afraid, have it on our own hard disks; we are going to have it and it may sound slightly muddled, but it is not. What somewhere up in the air. I am not sure whether the message are we are trying to get out? At the moment, technology we are talking is taken account of in these it is very muddled. On the one hand, we are leaving in clauses. place all the existing remedies for serious offenders, I will finish with a point about music. Some pop which could be used right now, and now we are people have woken up to the fact that they cannot putting a whole lot of things in—to frighten minor make money in that way, because of illegal downloading offenders, I presume—because they are presumably and the rest of it; they sell their music direct to not necessary for major offenders. I therefore think customers on the internet. You download the piece of that this clause is essential to explain why we are doing music and you pay them for it. You do not go through it, and what we are really trying to do for the future. a music publisher or whatever. Pop stars now recognise Without it, this Bill, to be honest, will be ridiculed. that they no longer make their money from selling Lord Young of Norwood Green: My Lords, while I records; they make their money from the records can agree with some of the sentiments expressed in the publicising their concert tours and by appearing live in suggested new clause, I do not think that in practice it concert. That is the way in which it has gone. My adds anything to the Bill. I listened carefully to my noble friend is quite right. We have to look forward to noble friend Lord Whitty. I can understand the use of see how on earth we can ensure—because I think quite a bit of hyperbole to make a case, but to say that we rightly that those who produce artistic goods should are moving straight into a protectionist regime and be paid for them—that we can do that without penalising sanctions is a misconception and an unreasonable those who are not sure whether they are dealing with description of what we have spent many days discussing. legal or illegal matters. We were adopting an educationist and gradualist approach. We are not doing anything threatening. We The Earl of Erroll: My Lords, very quickly, I, too, would send out a very modest advisory letter, which support this. The noble Lord, Lord Puttnam, made a was exaggerated. As regards saying that we are moving very valid point. Things of this complexity should not into protectionist technical measures, we are not doing just be suddenly presented here in Committee. Sometimes, that. It would take a year before we would even even though we may not really disagree, we will appear consider them, which would be after an Ofcom report. to be confrontational because of positions we take on As on many occasions, I plead for a more measured particular amendments on the Floor of the House. I analysis of what we are trying to do. certainly do not disagree with him in many respects To address the noble Baroness, those letters are but I may about some of the detail and the unintended part of the educational campaign. I am afraid that I consequences of some of the things that we are putting cannot follow the logic or rationale of the noble Earl, in to try to achieve a desirable outcome. Lord Erroll, who wants to take everyone to court now. The noble Baroness, Lady Miller, hit the nail on the I thought that we were moving away from that. He head—we should have done the educational campaign said that we do not need this and that we could just first. This amendment is about sending out a message, use the measures. Millions of people are engaging in which is a good point. However, if you look at it, peer-to-peer file sharing, as we have discussed on Clauses 4 to 9 are about sending out a message—sending numerous occasions. We know that in many cases out the letters. As the noble Baroness, Lady Miller of these people do it because they think that that is what Chilthorne Domer, said, this is trying to do the education, we do on the internet. We know that there is a need for but we are a bit late. Clauses 10 to 14 are the punitive an educational process for those people, which is why bits—the cracking of the whip. Then we have the bit we have adopted this gradualist approach. about how we divvy up the charges, and some On several occasions, we have made it clear that the administrative stuff. We are told by the Minister that reason for this part of the Bill is to reduce significantly all those clauses are about sending a message. That the level of online infringement of copyright, not just message is not a very kind message in the way that it because widespread unlawful activity should not be has been phrased in this Bill, which we expect to condoned but, I should like to stress, because we see it become an Act. as a vital ingredient in doing what my noble friend It would be much nicer to put this up front, so that Lord Whitty wants; that is, to develop a flourishing people realise that there is a desirable purpose in this and sustainable digital economy where people gain the and that it is not a hostile Act the entire way through. I fruits of their labours. My noble friend Lord Maxton refer to the discussion of the previous three amendments, also seemed to think that. which were all about using an existing system of As to whether streaming is legal, it depends on remedy which exists for the rights holders, and which what it is used for. There can be legal and illegal is not to be removed from them. This is a very effective examples of streaming. Where a streaming service is way of dealing with serious offenders. Take them to licensed by the rights owner, it is legal. Most iPlayer court—why not? We do not want to remove that from viewing is streaming. But unlicensed streaming will them. We understand from both front benches that we not be legal. I cannot pronounce on the services for need to leave this remedy in the Bill. which my noble friend is paying. If we are going to leave this remedy for a crackdown Alongside enforcement, which properly remains at on serious offenders through the civil courts, you start the heart of the responsibility of the owner of the to wonder, “Why do we need this new method?”. copyright, has to be education, with which I agree, and 1285 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1286 the development of attractive legal alternatives. There To conclude, we do not believe that this amendment are quite a few legal alternatives out there. It is not as will add to the Bill. The clauses speak for themselves, though there are not any. We constantly talk about an and we think we have got the gradual approach right. environment in which there are no legal alternatives. It We are concerned to ensure that the legal alternatives is just that the illegal alternative has become an attractive develop, and we believe that the gradual approach we first option and changing that will take a bit of time advocate will encourage the development of what my and education. That is exactly why we will not move noble friend Lord Whitty seeks to achieve. In the light into sanctions early on. of the clear statement of our intentions, I hope that However, while the Government’s purpose is very my noble friend will feel able to withdraw his amendment. clear, there is no need to include a new clause as proposed by the amendment. The clauses speak for Lord Whitty: My Lords, I am very appreciative of themselves in terms of their effect, which includes those who spoke in support of this amendment or elements within the progress reports produced by Ofcom something like it. The Government have to take on that will track the efforts of copyright owners to board the range of views which were expressed here. ensure that they play their part in this. We are not My noble friend Lord Puttnam is very wise to say expecting copyright owners to go down just one route, that this should have been subject to effective pre-legislative but also to develop the alternative. The proposed new scrutiny. My noble friend the Minister is also very wise clause would have no effect and we believe it to be not to give my noble friend Lord Maxton any detailed unnecessary. legal advice—he might find himself in serious trouble if he did. That illustrates the problem: people do not As to the contribution from my noble friend Lord understand it. As my noble friend Lord Maxton told Puttnam, with whom I usually find myself in agreement, us, he has been an aficionado of this area for at least in an ideal world perhaps we would subject this Bill to two decades, possibly more, and he does not know pre-legislative scrutiny. But I can recall some of my whether he is operating legally or not. noble friends and Ministers telling me that, even where we have had pre-legislative scrutiny, it has not stopped Lord Young of Norwood Green: We will educate hundreds of amendments—as though there is a process him. of collective amnesia. I would not decry it because I can see the benefit of what my noble friend has Lord Whitty: Exactly. My noble friend the Minister suggested. Where perhaps I disagree slightly is the says that education is the first part of this Bill. I have description that this process of scrutiny is a spatchcock. said the Government have made improvements to the Of course, it will change. We have submitted dozens of first part of the Bill—roughly Clauses 4 to 7—but it is our own amendments. Why? Because we are reflecting still the first stage of an enforcement process. The first the genuine concerns of the House. However, that letter a subscriber gets is, “It appears that an infringement does not mean that the essential structure of the Bill has taken place”. That is not education. It may turn and what it is trying to achieve will not emerge at the out that he will learn something from it, but it is not end of this process. With or without Clause 17, it still education. It is a threat. The problem with this approach has a very important purpose. I see I have spurred my is that it is a serious threat. Part of the music industry noble friend— and other industries have behaved in a gung-ho way: they have the Government and indeed the Opposition on side to wipe out this problem by getting the ISPs to 9.15 pm do it for them. Lord Puttnam: I gather I am allowed to stand by It would have been far better for all concerned, way of explanation. My point is that as a House—and including consumers, if we had had a proper education I certainly speak for myself—we have been subjected process up front, as the noble Baroness, Lady Miller, to an extraordinary degree of lobbying. The problem has said. If we had explained the situation and given is that we have had no opportunity to look at that support and marketing to the lawful process, we might lobbying in a sensible and interrogative way and decide have persuaded some of the lawful processes to market which of it is valid and reasonable and which is pure themselves rather more effectively. I do not suggest hyperbole. That is what has been missing. Many of us that we go down the road that President Sarkozy now in this House have come in having just had our ears appears to be going down. Recognising that his approach, bashed—either by the record industry or some other which is similar to this one, ain’t going to work, he has aspect of special pleading. The House has not been now decided to subsidise the purchase of hardware in protected with a proper interrogative process by which terms of CDs and DVDs at some expense to the we, as Members of the House, can come to this French taxpayer. I am not suggesting we do the same Chamber fully cognisant of the things we have looked here. But at least he has recognised that simply intervening at and believe we can advance on. The lobbying process on the sanctions side will not work. that has gone into this Bill has been quite destructive This is a graduated approach, but we should first and has done none of us very much help at all. inform and educate. Next you should start warning people and then take action with the residual problem. The main thing is to develop lawful, accessible, cheap, Lord Young of Norwood Green: There are aspects understandable, well-known forms of lawful alternatives. of my noble friend’s contribution that I probably They are there. Everybody is right to say that they are could not help but agree with, but it is a fact of life: already there, but they need developing and they need when we have legislation like this inevitably there will to be made more attractive and more automatic. They be lobbying. are getting better. My noble friend said that people 1287 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1288

[LORD WHITTY] happens if a number of different guests use the service who have recourse to unlawful file sharing take the to infringe copyright? The hotel will presumably be easiest approach, but at least in some areas some of subject to the proceedings established by the initial these lawful processes are now becoming the easiest obligations code. Is it expected to communicate with way to do it. That is exactly what we want to develop former guests about these obligations? Is the hotel and what the Government should have been doing. expected to pass on a copyright infringement order or If the Government are not prepared to accept the notice to a guest? Some clarification from the noble amendment, I shall return to it or it should be considered Lord would be very helpful in reassuring this industry. in another place. It was a whole new presentation of the Government’s approach. At the moment, the The Earl of Erroll: I have certainly had some letters Government may think that they are being very mild, about this because there are some concerns that this but out there is a big stick on behalf of vested interests. may turn hotels and other people into communication That will not endear them to the population nor will it service providers, because they will have to start to endear the population to the creative industries that monitor who is logged on and when and they will have we are hoping to stimulate as a result of this. to have software that does that. Does this make them I will withdraw the amendment tonight because I into CSPs along with all the obligations and everything do not think anybody wants a vote, but I have received else that that entails? Some clarification as to what this sufficient support to return to it at a later stage or in might imply for libraries, hotels, and other public another place. I beg leave to withdraw the amendment. places would be very useful.

Amendment 17 withdrawn. Lord Young of Norwood Green: My Lords, this amendment is an interesting one since it recognises that from the perspective of the copyright owner Clause 4 : Obligation to notify subscribers of reported collecting the evidence to form the copyright infringement infringements report, there is no way of knowing whether it is the subscriber apparently infringing copyright, somebody Amendment 18 within their household or organisation, or somebody parked outside in the street piggybacking on the Moved by Lord Whitty connection. All that the copyright owner will see is an 18: Clause 4, page 6, leave out lines 7 to 11 and insert— apparent infringement taking place—I stress an apparent “( ) infringement of the owner’s copyright has taken place infringement taking place—at a particular date and through a subscriber’s IP address” time, via a specific IP address. They will not know the circumstances because they will not know who it is. In Lord Whitty: My Lords, this is an even simpler many ways the reason for this legislation is to allow approach to make the Government appear a little less the copyright holder to take action that connects harsh. As we move on to the first stage notification, information about the infringement to the subscriber the present text in Clause 4 states: responsible for the connection while maintaining anonymity. “This section applies if it appears to a copyright owner that …a subscriber to an internet access service has infringed the However, while agreeing that this is what happens owner’s copyright by means of the service”. in practice, the text that the amendment proposes to We had lengthy debates in Committee about the fact delete is useful. It makes clear that it may not be the that the subscriber may well not be the perpetrator of subscriber that is personally responsible for the the infringement and how you identify where the real infringement and as such also makes it plain that, in issue lies. A more neutral approach to that in the text those circumstances, the provisions continue to apply— of the Bill which says that a subscriber has infringed although of course we have listened to what noble would be to use my terminology and say that it appears Lords said in Committee and have made it much that an, clearer how subscribers can deal with that. In fact, we “infringement of the owner’s copyright has taken place through a have sent a lot of information out to that effect. subscriber’s IP address”. My noble friend might suggest that the amendment That is actually a more accurate description of how it encompasses the existing text and says it in fewer would be brought to the attention of the copyright words—a clear profit. Unfortunately, while I admire holder and the ISP.It would be a rather softer approach the succinctness of the amendment, it uses the phrase, by the Government and might help to turn those first “through the subscriber’s IP address″, notification letters into a slightly more educational which is not an accurate description, as we have said and less threatening tool. I hope that the Government on a number of occasions. The IP address is dynamic, will accept that this is a sensible modification of the generally speaking, changing each time a subscriber approach. It does nothing else to change the Government’s logs on, while the amendment implies a fixed point of intention. I hope that at least consideration will be contact. Since the amendment does not seek to change given to this alternative wording. I beg to move. radically what is covered by the existing text but introduces potential difficulties, I hope that my noble Lord Howard of Rising: My Lords, there are a friend will agree to withdraw the amendment. number of instances where the subscriber may well In relation to the point made by the noble Lord, not be the infringer. For example, in the hotel industry, Lord Howard, the position of hotels is the same as the hotel is a subscriber to an internet service. What that with cafés, universities and libraries. Provided the 1289 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1290 hotel made suitable arrangements to ensure whatever “( ) is sent to the internet service provider within the security it needed to adopt or whatever conditions of period of 1 month beginning with the day on which service it put down to its guests—the levels of access—that the evidence was gathered;” would be a reasonable defence. It was on this that we gave quite a lot of information and I would refer the Lord Young of Norwood Green: My Lords, I intend noble Lord back to that. We were trying to respond to to speak to the 10 amendments tabled by the Government the genuine concerns that were expressed about a that deal with the information provided to subscribers whole range of different scenarios; universities, libraries, in the notifications they receive, and the time limits cyber-cafes, hotels et cetera. We made it clear that that associated with the notification process. I will also there are reasonable actions that could be taken; and if respond to the amendments proposed by the noble those actions were taken, that in itself would be a Lord, Lord Lucas, that cover the same ground. reasonable defence. I refer the noble Lord back to the There was some interesting debate in Committee information that we have already circulated. around the extent to which we should leave the detail In the light of what I have just said, given the of the process to the code, which would have the technical problems with the amendment, I hope that benefit of direct stakeholder input and consultation, my noble friend will feel able to withdraw the amendment. and how much should be included in the Bill to ensure a minimum level of protection for subscribers. While 9.30 pm the Government continue to see merit in leaving much Lord Whitty: My Lords, I understand what my detail to the code, we listened to the arguments made noble friend is saying. However, the subscriber’s address and the amendments laid by the Government are the identifies the potential infringement, so I am not result. entirely sure that his objection to my wording is correct. The amendments we have put forward in the area of No doubt his technical advisers can advise him on a notifications and time limits do, I suggest, strike the more apposite wording to replace the subscriber’s right balance. They ensure that subscribers who receive address. However, that is not the point of the amendment. a notification have the information that they need in The point is that it does not imply—the wording of order to appeal if necessary, that the first-level notification the Bill does imply this—the clear guilt of the subscriber, does not include information about potential technical either by perpetrating the infringement themselves or measures, underlining the advisory nature of the letter—I by giving permission—actively or passively—to somebody hope that noble Lords found the illustrative letters else to do it. That is the point of the measure. The helpful in that regard—and let the subscriber know reference to a subscriber’s address may not be correct, what the position is generally as regards issues such as but there must be a reference which covers that point. potential legal action by copyright owners. The noble Lord, Lord Lucas, will also have noted Lord Young of Norwood Green: I really must correct that we have adopted his proposal of including provision my noble friend. We are not implying guilt at all. We for the name of the copyright owner making the talk about an apparent infringement. We cannot indicate report to be included in the notification, and I hope guilt because we do not know whether the subscriber that as a result he will agree to withdraw his own was the person who perpetrated the act in question. I amendment in this area. However, we do not agree have made that clear and I wish that my noble friend with his Amendment 28, which proposes that marketing would not imply that certain things are in the Bill information may also be sent with notifications, not when that is manifestly not the case. We take great care because we do not agree with it but because in our to ensure that the first letter—the first approach—talks view there is nothing to stop such information being about an apparent infringement. That is not by any sent as it is—and in practice we would be rather means an indication of guilt. surprised if it was not. I hope that the noble Lord, Lord Lucas, can agree to withdraw that amendment Lord Whitty: Perhaps my noble friend’s life experience also. Certainly, we wholeheartedly agree with the is different from mine, but if a policeman knocks on underlying point that copyright owners must step up my door and says, “It looks as if you’ve got some and play their part by ensuring that there is plenty of dodgy gear in your shed”, I consider that is an implication attractive legitimate content available. of guilt, even though I may have a perfectly adequate These amendments also set limits on how long the explanation for it in the long run. It is a matter of process can take, with a maximum of a month allowed where you start from. That is what I object to. The between the date evidence of the apparent infringement Government should think again and not have a knee-jerk is gathered and the copyright infringement report reaction to something that is intended to be helpful. I being sent to the internet service provider, and the am almost being provoked to call a vote, but I will not. same period being set as the limit between a copyright I will withdraw the amendment, but I hope that my infringement report being received and a notification noble friend will give further consideration to making being sent to a subscriber. That may be regarded by a change in this area. some in industry as challenging, but there is a balance to be struck here and we think this is only fair to Amendment 18 withdrawn. subscribers—of course, we hope and expect the actual period to be considerably shorter than this. I hope noble Lords agree that this moves this part Amendment 19 of the Bill in the right direction and recognise that we Moved by Lord Young of Norwood Green took account of a number of serious points that were 19: Clause 4, page 6, line 22, after “gathered;” insert— made in the previous debate. I beg to move. 1291 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1292

Lord Lucas: My Lords, of course, I am grateful for I say to the noble Baroness that the gathering of Amendment 22 being superseded. I am also grateful evidence does not mean that somebody is guilty, so I for the Minister’s words on Amendment 28, which do not accept that point. I cannot tell noble Lords very much answer the case. I shall pick up his words at about any suggestions from BT. a later moment because it does seem to me very We submitted the amendments in good faith in the important that the industry offers ISPs something that light of the serious points that had been made in they can sell to their customers. They must have a previous debates and, from other points that have product to offer in substitute for what their customers been made around the House, it is obvious that they are doing at the moment. This is an enormous marketing serve a purpose. Therefore, I make no apologies for the opportunity. amendments. I think that they are a constructive response At the moment, the copyright owners are being to a constructive debate, and it is unfortunate that extremely difficult, as I said at the last stage, about a they do not seem to please the noble Baroness. test of this in one particular area, to see whether an ISP can successfully offer rights packages to its users— Amendment 19 agreed. which has been successful in Denmark, for goodness sake, so why are they dragging their feet here? However, at least the Government say that they are expecting the Amendment 20 industry to do this. I very much hope the industry is Moved by Lord Young of Norwood Green listening and that, when the time comes to send out these letters, there will not be an ISP in the land which 20: Clause 4, page 6, line 27, at end insert— is unable to offer a legitimate package to its subscribers, “( ) Any notification under subsection (4) must be sent to the presumably for a cut of the take in doing so. subscriber within the period of 1 month beginning with the day on which the provider receives the report.”

Lord Clement-Jones: My Lords, it would be churlish Amendment 20 agreed. not to welcome amendments, which I think are considerable improvements to the Bill, particularly in terms of the additions to the copyright infringement The Deputy Speaker (Lord Haskel): I cannot call report requirements and the notification contents. I Amendment 22 if Amendment 21 is agreed. think the Minister has made significant progress and improvements to the Bill as a result of these amendments. Amendment 21

Baroness Miller of Chilthorne Domer: My Lords, I Moved by Lord Young of Norwood Green think the Minister in introducing his amendments 21: Clause 4, page 6, line 30, leave out “made by a copyright actually proved the point made by the noble Lord, owner;” and insert— Lord Whitty, on the last amendment, because the “( ) the name of the copyright owner who made the report;” amendments that the Government are now introducing talk of the gathering of evidence and so on, which are Amendment 21 agreed. all things that happen before you get found guilty of something. The very language that the Minister uses is wrong, and I am sorry that the noble Lord, Lord Amendment 22 not moved. Whitty, did not choose to call a vote; but I can understand why he did not. Amendments 23 to 25 I rise to make a point that BT has made to us in its Moved by Lord Young of Norwood Green briefing. Quite clearly, it is still deeply unhappy, despite all of the government amendments. I wonder whether 23: Clause 4, page 6, line 32, at end insert “that shows the the Minister is aware of the depth of its unhappiness. I subscriber’s IP address and the time at which the evidence was must say that I have never found it in the past to be an gathered; organisation that has been anything other than reasonable ( ) information about subscriber appeals and the grounds on and logical. BT says that, which they may be made;” “it is not clear which of the definitions of ‘subscriber’ or ‘internet 24: Clause 4, page 6, line 34, after “advice” insert “, or service provider’ would apply to account holders such as businesses, information enabling the subscriber to obtain advice,” organisations and householders whose internet connections are 25: Clause 4, page 6, line 35, leave out from “advice” to “; and” or can be used to provide internet access for many people”. in line 36 and insert “, or information enabling the subscriber to It feels that the new amendments that the Government obtain advice, about steps that a subscriber can take to protect an are introducing at this stage are not much more than internet access service from unauthorised use” cosmetic. I wonder what consultations the Government have had with BT and whether it came up with some Amendments 23 to 25 agreed. more substantial suggestions that the Government have chosen to ignore. Amendment 26 Moved by Lord Whitty Lord Young of Norwood Green: Not to my knowledge. I think it is unfortunate that there seems to be a slight 26: Clause 4, page 6, line 36, after “telegraphy;” insert— dichotomy of opinion there between the Front Bench “( ) any allegation of financial gain to the subscriber as a and the Back Bench, with one welcoming the amendments. result of the alleged infringement;” 1293 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1294

Lord Whitty: My Lords, I shall speak also to is easier and simpler when there is money involved Amendment 57. We are still talking about the initial since, if somebody is making money from copyright letter of notification and the evidence that is required infringement, it becomes a criminal offence and a to issue such a notification. I know that the Minister different set of procedures comes into play. There is was getting a bit irritated with the noble Baroness, also a clear target and, as in the simple instruction to Lady Miller, but such a notice suggests that we are detectives, the same thing would apply to enforcement moving into sanctions, and for sanctions you need to authorities—“follow the money”. That is not what we differentiate motivation in the long run. are talking about here. Peer-to-peer file-sharing is not This is the beginning of a process. It may be a necessarily about people making money out of it; it light-touch beginning but, in the end, if compliance is just happens to be that what they are doing is illegal. not achieved, we are into sanctions in stage 2. Therefore, So it would be pointless and even misleading to add if evidence is being gathered at this early stage, it is this to the list of notifications information. I hope, in useful to identify the motivation of the unlawful the light of that explanation, that my noble friend will downloader or file-sharer. I simply suggest in the feel able to withdraw the amendment. amendment that, if there is an allegation that the individual is making money out of this breach of 9.45pm copyright, that should be known at the earliest possible Lord Whitty: I accept some of that and perhaps the stage. That will then have consequences regarding the moment of notification is a bit early to start distinguishing, nature of any sanction if there is continuous non- but somewhere in this process we do have to distinguish compliance at a later stage. That seems to me very why people are engaged in multiple file-sharing. The sensible and it is a way of sorting those who are consequences, for somebody who is doing it for money currently engaged in unlawful file-sharing from the will, as the Minister rightly says, be potentially different. eventual hard core whom this regime will have to This does not say that you have to distinguish, for tackle. everybody, beyond doubt that money is involved, but The amendment may not be in quite the form that if there is, as part of the knowledge of the copyright the Minister would like but it would provide a useful holder, an assertion that money is involved, we might differentiation and would be a useful addition to the as well get it on the record as early in the process as background evidence for the first intervention. It would possible. That is all that Amendment 26 is doing. imply that not everyone was as guilty as everyone else When we come on to the next stages, it seems rather in this respect. In other words, if you were making more necessary that we know before we engage in the money from unlawful file-sharing, ultimately you would technical measures sanctions, or indeed, put it into the expect a heavier sanction if you did not comply than if criminal system, as my noble friend the Minister implied. you were a casual user. It is sensible to establish that at While it may not be absolutely necessary to know at the beginning and I hope that the Minister will at least this point, it will be necessary and helpful to know at have a look at the possibility of including such an some point whether they are involved, not simply in amendment. I beg to move. depriving the copyright owner of money, but actually making money for themselves. That distinction will The Earl of Erroll: This seems extremely sensible have to feed through to the sanctions regime, but for and it can only help the process later. the moment, I beg leave to withdraw the amendment. Amendment 26 withdrawn. Lord Young of Norwood Green: My Lords, it is worth recalling that the purpose of the Bill is within these clauses. Online infringement of copyright through Amendment 27 the unlawful use of peer-to-peer file-sharing networks Moved by Lord Young of Norwood Green is a civil matter where there is widespread sharing of copyrighted material without any remuneration involved 27: Clause 4, page 6, line 38, at end insert— either to those sharing the files or, alas, to the owners “( ) For the purposes of subsection (5)(f) the provider must and creators of the copyrighted material. As I have take into account the suitability of different protection for subscribers said before, moving towards any sanctions is quite a in different circumstances.” long process. They are taken only against serial infringers and therefore someone would have to have quite a Amendment 27 agreed. track record before any sanctions were taken. It must be remembered that we were talking about not even Amendment 28 not moved. introducing technical measures until at least a year after we had seen whether the gradualist, educated process had had any effect. I am going to keep returning Amendment 29 to this so that we do not create the impression that Moved by Lord Young of Norwood Green sanctions are going be taken against people in a very 29: Clause 4, page 6, line 40, leave out from second “particular” short time—that is not the case. to “of” in line 7 on page 7 and insert “— On the substance of what my noble friend is trying (a) a statement that information about the apparent infringement to do—and I understand the direction of travel—it is may be kept by the internet service provider; extremely difficult for copyright owners to address (b) a statement that the copyright owner may require the such widespread activity, which is why we have introduced provider to disclose which copyright infringement reports the provisions in this part of the Bill. In many ways, it made by the owner to the provider relate to the subscriber; 1295 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1296

(c) a statement that, following such a disclosure, the in the Bill. It remains our view that the code is the copyright owner may apply to a court to learn the right place for the threshold to be established. I believe subscriber’s identity and may bring proceedings against that we can rely on the parties with the most interest in the subscriber for copyright infringement; getting this right and on Ofcom, as an experienced (d) where the requirement for the provider to send the regulator, to agree a suitable threshold. notification arises partly because of a report that has already been the subject of a notification under That is also our view of the amendment tabled by subsection (4), a statement that the number” the noble Baroness, Lady Miller, and my noble friend Lord Whitty. I do not think that we would be at all Amendment 29 agreed. wise to include specific figures for any threshold in the Bill; that is for the code. In passing, I would say that if a threshold of 50 is included, there might be few Clause 5 : Obligation to provide infringement lists to internet service providers left outside the scope. Whether copyright owners that is desirable and effective I am content to leave to the code. Amendment 30 Finally, the noble Lords, Lord Razzall and Lord Clement-Jones, suggested that once the threshold has Moved by Lord Young of Norwood Green been reached a reasonable time should be allowed for 30: Clause 5, page 7, leave out lines 29 to 33 and insert “and an internet service providers to prepare. I agree that this internet service provider if copyright infringement reports made needs to be part of the practical arrangements. Your by the owner to the provider in relation to the subscriber have Lordships will therefore not be completely surprised reached the threshold set in the initial obligations code.” when I suggest that this sort of practical detail is best left to the code. The outline that we made available in Lord Young of Norwood Green: I intend to speak to Committee included that eventuality. In trying to put the six amendments tabled by my noble friend Lord more flesh on the bones of what the code may look Mandelson which deal with the thresholds set by the like, we think it important that, while not taking away code. I shall also speak to Amendments 36, 37 and 40, flexibility, we provide a period of consultation for tabled by the noble Lords, Lord Razzall, Lord Clement- stakeholders to decide the make-up the code. Jones and Lord Whitty, and the noble Baroness, Lady I am sure that noble Lords noted that Amendment 39 Miller, which also address the thresholds that apply in allows that internet service providers comply with the Clause 6. obligations once they have passed the threshold or at a Perhaps the most important of the amendments later time. This was included specifically to cater for laid by the Government in this group has the effect of the likely but not certain need of many internet service removing the text that caused some concern to noble providers to make the necessary preparations. We Lords during both Second Reading and Committee. took into account many of the comments and concerns The concern was about whether it was fair or reasonable expressed in previous debates and they have been to require internet service providers to process copyright reflected in the government amendments. In the infringement reports that accrued to them during the light of those comments, I hope that noble Lords qualifying period—in other words, before they were will not press their amendments. In the mean time, I formally subject to the obligations. Internet service beg to move. providers put forward the scenario of being obliged to spend significant sums just in case, at some time, the Lord Clement-Jones: My Lords, I assume that the obligations did apply to them. This would in many Minister will respond formally later. However, he has cases be likely to be wasted money. Clearly that is not saved me having to make a long speech, or indeed in anyone’s interests, and the amendments allow for much of a speech at all. I thank him for responding to the obligations to apply from when the qualifying Amendments 36 and 40 essentially in the same terms. threshold is reached, or from a later date. He said that rather keep it in the Bill, it should be in The other amendments in this group are largely the code. One needs to consider the impact of that. It intended to clarify the position regarding thresholds, will not be quite as powerful, particularly in terms of including how the thresholds for going on the copyright Amendment 40, which gives internet service providers infringement list might be constructed—for example, a reasonable time, because there are two ways in which allowing for time as well as simply the numbers of these codes can be made. They are either made by copyright infringement reports to be taken into account consent or imposed by Ofcom. Perhaps the Minister is when looking at thresholds for adding subscribers to a saying that if Amendment 40 is not included in the copyright infringement list. These amendments are code by agreement between the parties, it will be again in response to the concerns expressed during our imposed by Ofcom. That is the only way in which deliberations in Committee, and I hope that noble something that the Minister assures us will be in the Lords will agree that they address one unintended code, but which is not specified in the Bill, is in the consequence and provide greater clarity elsewhere without code. In a sense, one is taking it somewhat on trust. hindering the important flexibility that the code provides However, at this stage of the proceedings, and given in setting the thresholds themselves. the Minister’s assurances, I shall take the matter away Amendment 36 was tabled by the noble Lords, and consider his response to Amendments 36 and 40. Lord Razzall and Lord Clement-Jones. I understand their intention of ensuring that the level of infringement The Earl of Erroll: My Lords, I speak to detected on an internet service provider’s network Amendment 40. It is not my amendment, but I think must be serious before it becomes subject to the obligations that it should be included in the Bill to some degree. I 1297 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1298 welcome the Minister’s amendments, which are a very There are two aspects to this amendment. The first good idea, but the extra moderation shown in Amendment deals with the precautions that a customer will be 40 is also worthy of consideration. When one thinks of asked to take. If the Minister has looked at the latest how much difficulty the Government sometimes have in Which? Computing, he will see that domestic routers implementing new computer and software systems, are reviewed—and, indeed, that the model that I have one realises that a reasonable amount of time should is found to be fundamentally insecure, as is the model certainly be allowed. Choosing it arbitrarily could that I had previously. I bought mine at PC World, as it be dangerous, and we should probably have that was one of the nicest looking ones around and did in the Bill. everything that was required of it. The only one that came out as totally secure was the BT router, which you cannot buy unless you have a BT account—which Lord Whitty: My Lords, I will not pursue my I do not, at least not in the relevant place. amendment for the reasons that the Minister referred to—namely the unintended consequences for smaller Being told that these particular brands of router ISPs. I was certainly not intending to drive them out of will do what you want to do, and that this is what you business. One needs to devise a trigger, and it would be do, is better than just being told, “Go and buy a router better if the trigger were overt and in the Bill. On that complies”, without leaving it absolutely clear reflection, however, I do not think that my amendment which those are. Most people who are subject to these achieves that. Therefore, before my noble friend replies, things will not feel technically confident and will need I should say that I will not press it. precise instructions. That especially applies to people who want to know how to defend themselves against an accusation. I have lived the past 40 years with Lord Young of Norwood Green: My Lords, I tried to computers of one form or another, and I would not cover the amendments in my opening remarks. I therefore know how to defend myself against an accusation that commend the amendment to the House. I had file-shared. How would I get proof? To give somebody a kit that they can use is going to be Amendment 30 agreed. essential. I beg to move.

Amendment 31 not moved. Lord Whitty: My Lords, I strongly support this amendment; to some extent it features in the next group of amendments which are tabled in my name. It Amendment 32 seems to me that every subscriber needs to know what Moved by Lord Lucas is expected of them to avoid the effects of infringement, and it behoves the code to lay down in clear terms 32: After Clause 5, insert the following new Clause— what is expected of a subscriber at their address. I “Obligations of OFCOM in respect of subscribers etc. hope that the Government take the issue seriously and After section 124BA of the Communications Act 2003 insert— will take the noble Lord’s amendment on board. “124BB Obligations of OFCOM in respect of subscribers etc. (1) Before any notifications are sent to subscribers under the Lord Howard of Rising: We on these Benches support terms of section 124A, and thereafter as required, OFCOM must my noble friend’s amendment. I shall resist asking him publish its views on— what a good-looking router looks like. (a) the precautions that should be taken by a subscriber who uses a computer or operates a network to which others (actually or potentially) have access in order to The Earl of Erroll: I also support the amendment. reasonably ensure that their computers and networks are It is important that people can know where they not used to infringe copyright; stand. That is the challenge. The internet is very new (b) the ways in which a subscriber who receives a and many people are very new to it and are in the notification under section 124A(4) may seek to unknown. The noble Lord, Lord Maxton, explained demonstrate that— why he did not know whether he was downloading the (i) he had at the relevant time put in place precautions right stuff. On top of that, how does he know that he equivalent to those published under paragraph (a), has got the right kit? This is a very sensible amendment. and (ii) no computer used by him had contained— 10 pm (a) the copyright material complained of, or (b) a program capable of making that material Lord Young of Norwood Green: My Lords, the available over the internet. intention behind the proposed new clause is clear and (2) When OFCOM publishes views under subsection (1)(a) or easy to sympathise with: to give subscribers more (b) they must include the names of (as the case may be) software information and hence protection. However, it attempts or websites that an ordinary person might reasonably be expected to do so by placing new obligations on Ofcom in areas to make use of to achieve the objectives referred to in those in which Ofcom does not have the necessary expertise subsections.”” or experience. In doing so, it would actually reduce the level of subscriber protection. I will say why. Lord Lucas: All I need the Government to say in We agree that advice should be made available to response to this amendment is, “Yes, customers will be subscribers on how to secure their networks, but the given precise instructions on what to do and will not best people to give it are the ISPs, which can advise on be left to guesswork, to divination or to going on to what works best on their network, using their hardware, Google to find out what might possibly work”. and on the type of service that they provide. I stress 1299 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1300

[LORD YOUNG OF NORWOOD GREEN] or might be going on that they want to prevent can that we are introducing an amendment to the Bill that prevent it in a way that leaves them certain that they requires that they do so under the code. Any advice have done the right thing and that they will no longer from Ofcom would be second best. However, it will be be at risk. I beg leave to withdraw the amendment. up to the appeals body, the First-tier Tribunal, or Amendment 32 withdrawn. indeed a court, to decide what precautions or evidence may or may not be appropriate. In a lot of the information Clause6:Approvalofcode about the initial that we have sent out, we have said what we think obligations would be a reasonable defence for people adopting security measures. I will have to come back to the noble Lord, Lord Lucas, on the question of security Amendment 33 on routers and so on; I do not feel capable of giving an Moved by Lord Whitty answer here. 33: Clause 6, page 8, line 3, leave out “may” and insert “must” The danger in Ofcom setting out its views on what measures are “reasonable” or what evidence might be Lord Whitty: My Lords, I will speak also to the produced is that these could become the de facto other amendments in this group. Amendment 33 is minimum for subscribers, regardless of circumstance pretty straightforward—it just requires the code to or effectiveness. The level of technical expertise that is cover the subsequent stipulations, rather than have a required—for example, to demonstrate that at no time form of words based on “may”. Amendment 35 partly did the subscriber’s computer have the necessary software overlaps with some of the territory that the recent to allow infringement—is fairly high and expensive, amendment of the noble Lord, Lord Lucas, covered. although it is easy to envisage circumstances in which However, it also covers the wider issues that were this would be totally unnecessary.In such a fast-changing raised during the Committee stage. area, any centrally provided advice that tried to cover It seems that the code needs to specify a number of all eventualities could very quickly date. Conversely, a things in relation to those bodies and organisations court or tribunal might simply take the view that the that feel they have particular problems with the operation measures were unnecessary or inadequate and not of the regime that this Bill requires. In particular, we take them into account. have had very substantial representations from libraries We agree with the intent behind these amendments, and educational establishments. The Minister helpfully but, as I have explained, we feel strongly that they are provided a factsheet on how this would impact on not necessary and that, for once, Ofcom is not best libraries in particular. The factsheet is helpful, but it placed to provide the advice. indicates that there is a very wide range of issues, and There are a number of reliable and credible sources clarity of advice is not very easily available, depending of advice on protecting networks on computers outside on the nature of the systems that are operating in the the ISPs, such as www.getsafeonline.org, which provides libraries and the protocols under which they operate, independent advice on how to protect networks and is and the other public institutions with which they liaise supported by government, Ofcom, the police and industry. and share information. It is not therefore that Organisations such as Which? also review widely available straightforward, even for libraries. security products. I will still take away the point made I suggest that those non-profit-making bodies and by the noble Lord, Lord Lucas, about routers, which educational establishments ought not to be subject to apparently are not secure. He asked whether software the same sanctions, and therefore the same warning programs could in any way be downloaded to make procedure, that is implied for other people. That does them secure. I do not know. not mean that they are not covered, and that copyright We understand exactly and sympathise with where is not protected in relation to such institutions, but it the noble Lord, Lord Lucas, is coming from, but we does mean that separate protocols will have to be do not believe that this is the right way to proceed. We developed, in order that those bodies that effectively believe that the ISPs and other sources will be better exist in order to provide for multiple users, in educational placed to give this kind of advice, and I hope that in establishments and elsewhere, at no profit to themselves, the light of my comments the noble Lord will feel able can have some separate arrangement. That will probably to withdraw the amendment. be negotiated with the rights holders and will protect their position, while at the same time giving some The Earl of Erroll: Does this mean that the Government return to the rights holders. They are not in the same will put www.getsafeonline.org on to a properly funded position as either individuals or commercial businesses footing? It is being run on a bit of a shoestring at the who are engaged in unlawful file-sharing. They are in moment. a position where they are trying to do what I was Lord Young of Norwood Green: I will write to the emphasising in an earlier stage in this debate; that is, noble Earl on that question. I do not feel capable of to spread the availability of information and of creative replying to it here. works on the internet to a wider range of people. That is the function of educational establishments and Lord Lucas: My Lords, I think we will have to see libraries—that is their job—and we therefore need to what happens. I really do think that if consumers end make special provision for them. up without very clear advice on what to do, we will At this stage in the evening, I will not say much end up with a lot of unhappiness and a lot of mess, so about those other organisations that are commercial, I urge the Government to ensure that, whichever way but which also exist primarily to give access to other they do this, the consumer who finds that something is people: cybercafés and hotels—which the noble Lord, 1301 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1302

Lord Howard, referred to—where again, some form forward. Nevertheless, the defences need to be set out of fair use provision needs to be built in. Again, they very clearly in the codes, and we are not there yet. We are not in the same category as individual users or have therefore brought back Amendment 34 to see individual businesses. whether the Government can make a slightly better The final phrase of Amendment 35 relates exactly fist of being clear about the way in which the code will to the territory that the noble Lord, Lord Lucas, was work and the defences that are available. referring to—namely that all users, all subscribers, need to have greater clarity about the precautions they Baroness Miller of Chilthorne Domer: My Lords, I are expected to take. thank the Minister for the communication that he sent Amendment 76, which is also in this group, follows us about universities. Universities are relatively easy that through, so that where, in the later stages, under organisations to address, because they have a student Clause 10 and onwards, a relevant subscriber has body which can sign up to something. Similarly, in taken precautions, that shall be deemed “reasonable libraries, as you take out your library user card, you steps” under the formulation, and will provide the can be asked to sign up. However, we have not yet got subscriber with a prima facie defence against sanctions to the bottom of what will happen to municipal places— at that later stage. I am not trying to do it in quite the the towns, for example—that choose to offer wi-fi. I same way as the noble Lord, Lord Lucas, and it may am sad that the Government have not chosen to be that technically his way is better. However, the introduce a clause stating what category educational Government have already rejected that, so I am coming establishments or commercial establishments such as back to that fourth paragraph in Amendment 35, internet cafés, or indeed municipal facilities and wi-fi followed through in Amendment 76, to ensure that the towns such as Swindon, would fall into. The vision set code and the regulations under that code and the out by the Government in Digital Britain was of a procedure will allow those who have taken reasonable place where local government provided wi-fi; it was precautions to escape the sanctions at the end of the creating opportunities for the citizen. day. That seems to me only sensible and equitable, and Not having a more enabling clause in this Bill that would of course apply in a court of law. Since at the recognises how to get round some of the difficulties moment this procedure is not going through a court of without making life difficult for those organisations law—which I regret, but nevertheless it is not—then and local governments who are being innovative seems surely the same terms should apply. to be a big loss. The Minister, I am sure, will be aware This is a hotchpotch of amendments, and we have of the town in the USA—I believe in Ohio—which covered a number of different subjects all together, but was offering wi-fi. It had a great difficulty because it I should like to hear the Government’s position on was said that someone who had accessed the internet making special provision for libraries and education through the wi-fi had infringed copyright and the establishments; on commercial operations which exist whole wi-fi network was threatened with closure. I do to share; and, if not tonight then at a later stage, on not know what happened in that case, but it would be what precautions are “reasonable steps”. I beg to move. a great shame if just at the point where we are getting more widespread opportunity to access wi-fi through municipal provision, it was caught by this Bill. Lord Clement-Jones: My Lords, the concerns expressed Establishments such as libraries and universities in the amendment tabled by myself and my noble would benefit from a special clause, but I would be friend Lord Razzall are very similar to those in the very grateful if the Minister could make a particular amendment of the noble Lord, Lord Whitty, except comment on municipal wi-fi. they are perhaps more defined in terms of libraries or educational or cultural establishments. The Earl of Erroll: My Lords, as I said before, I We had a good debate in Committee, but there was have a vision of the future where we can roam around great sense of disappointment, I think, that libraries the place, connecting freely wherever you are and and universities were classified for the purposes of the working from wherever you need to work. If for some code simply as subscribers. Such classification will reason—such as transport difficulties, heavy snow or a make them migrate away from what might be thought terrorist threat—you cannot get into work, you can as being their ordinary course of duty as a cultural or work from some other access point that you happen to educational establishment towards becoming ISPs get to. You may get halfway there and then log in. themselves. Ironically, they may have rather fewer That flexible, free and mobile future is, I think, where duties as an ISP than as a subscriber. That would be a the world is going. I think it would be very sad if regrettable step, because one is forcing them into a Britain, because of one particular challenge and problem situation which would not otherwise occur if there which we need to solve, constrains itself in such a way were satisfactory exemptions for them. that we lose that flexibility and end up with a whole lot However, I accept that the Minister has within the of tied points, huge complexity and a lot of regulation constraints of the definitions that he has provided preventing people doing anything. I envisage a nice, tried to be helpful. A paragraph in the note that he has free world, not a world where we are heavily constrained, sent noble Lords states: so therefore I very much support Amendment 35 and “There is the potential for the code to offer some flexibility hope the Government will look at it very closely. and reflect the particular positions of libraries and the like. Ofcom will consult on the code in due course”. Lord Young of Norwood Green: My Lords, I will That libraries with fixed terminals are rather different speak to Amendments 33, 34, 35 and 76 together. As from universities with wi-fi was explained in some noble Lords will recall, the issue of libraries, universities detail in the factsheet that the Government have put and other establishments was the subject of much 1303 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1304

[LORD YOUNG OF NORWOOD GREEN] my noble friend Lord Mandelson, which we have debate in Committee. We recognised the concerns already discussed. These will require ISPs to provide raised and I wrote to the noble Lords who participated such information as part of a notification and to take in last week’s debate. into account the suitability of different protection for I therefore entirely appreciate the intention behind subscribers in different circumstances. We do not think these amendments. No one wants to see libraries or that it is possible to make following these steps a universities the subject of court action or technical sufficient defence precisely because different steps may measures if—I stress this—they are ever introduced. be appropriate for different subscribers. However, I There is no question of them being some sort of quick would certainly expect the appeals body to regard sanction which cuts off those services. No one wants evidence that the subscriber had followed steps to see legitimate businesses suffer as a consequence of recommended by their ISP as very strong evidence of the actions of their customers but, equally, it cannot having taken reasonable steps. be right that they are totally excluded from the provisions Finally, Amendment 33 would make the inclusion of the Bill. My noble friend Lord Puttnam, with his in the code of a provision for dealing with exceptional background in universities, recognised that essential cases mandatory rather than something that, under point eloquently during our debate in Committee. It is the Bill, may be included. I do not think that making better that the code recognises different circumstances; such a change is necessary. Of course it is important that is what the Government’s amendments provide. that the code should be flexible enough to deal with Such an exclusion would, I believe, be counterproductive. particular cases that do not necessarily conform to the It is important to remember that libraries and universities usual pattern. That is why subsection (3) is there. It can and do ensure that their systems are used for the expressly recognises the need, and the actions that will purposes for which they were already designed. After be required of internet service suppliers and copyright all, it does not help a university to have a lot of owners, to ensure that any such conditions for dealing unlawful file-sharing going on when it needs the bandwidth with cases of that sort are met. However, I see no for legitimate file-sharing of research data. They sit on reason for requiring such a provision before it is infringement pretty hard when they detect it, and evident that there are such cases. Insisting on such a install systems to deter illegitimate use of what is, after provision in these circumstances would be a complete all, a finite resource. waste of time. I suggest that the potential issue of Libraries also take proportionate and reasonable dealing with particular cases effectively needs to be measures on both fixed and wireless connections. All provided for; the current text does that. Making it a library services should have a conditions of use policy requirement for the code may be a wasted effort. In the to which users have to agree before getting access to light of that, I hope that the noble Lord can see his the network. For example, no unlawful activity, including way to withdrawing the amendment. copyright infringement, is permitted. The policy usually stipulates that legal liability for unlawful activities sits I stress that it is our intention that the code should with the individual, not the library. There are measures require ISPs to provide generic advice and information that can be placed on wireless networks to either on how to tackle infringement as well as on how to restrict access to sites or restrict use of certain technologies protect a wireless connection/network and that such or protocols—for example, routing all traffic through advice is appropriate for the type of establishment in a proxy server that did not support the use of particular question. We will add a requirement under Clause 8 technologies. that this is a provision that the code must include. I hope that that gives some reassurance. The Government recognised in Committee that more clarification on these issues was needed. We set In response to the noble Baroness, Lady Miller, we out in the amendment that we discussed earlier today gave an example of a case study on urban wi-fi—the that more information should be made available to all Swindon example. I can tell the noble Earl, Lord types of subscribers on how to safeguard their connections. Erroll, that it is not our intention to stifle initiatives, We proposed a new clause on subscriber appeals, but we believe that appropriate measures can be taken which sets out that if the subscriber was not responsible in all these circumstances. It is quite complicated but, for the infringement and—I stress—had taken reasonable given the time, I do not want to read out the Swindon steps to prevent others from infringing, the appeals case study, as it would not be appropriate. However, body should rule in favour of the subscriber. we believe that a type of free or coffee-shop access of a The amendment tabled by the noble Lord, Lord basic bandwidth service that offered users access to Whitty, and the noble Baroness, Lady Miller, would e-mail and web browsing would be unlikely to be the go further by requiring that steps that the subscriber type of free broadband service that would be sufficient could rely on taking should be set out in the initial to support any file-sharing or that could be used for obligations code. This is just not practicable. The code significant copyright infringement. The Swindon example would be a relatively static document made by statutory is a two-tier service. One part of it is a restricted instrument. The steps that might be appropriate to bandwidth, so it is unlikely that it could be used to protect an internet connection could well change over engage in peer-to-peer activity. There is another paid-for time as new techniques are developed and may be subscription service where that might be possible, but different for different types of subscriber or different I am sure that there will be conditions of use. types of network. I commend the factsheet. I would not say that it We absolutely agree that subscribers should have answers every question but it goes a long way towards some guidance on what steps can be taken, which is addressing these issues. We have tried to make sure the reason for Amendments 25 and 27 in the name of that there will be some requirements—things that the 1305 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1306 code must include. We believe that, in a situation “( ) if the threshold is reached, rights or obligations apply where the technology changes frequently, we can meet with effect from the date when it is reached or from a the genuine concerns expressed. We have tried to strike later time” a balance so that organisations such as universities, Amendment 39 agreed. libraries and hotels have the ability to offer a service but are not exempt from taking the necessary measures Amendment 40 not moved. and will not fall foul unreasonably, provided that they show that they have taken the necessary precautions. I Amendment 41 hope that, in the light of the published information Moved by Lord Howard of Rising and my explanation, the noble Lord will feel able to withdraw the amendment. 41: Clause 6, page 8, line 29, after “unless” insert— “(a) ” Lord Whitty: My Lords, I am reassured on several Lord Howard of Rising: My Lords, the amendments points by my noble friend’s reply, particularly in relation in this group relate to a concern that many noble to how precautions will be separately set out for Lords raised in Committee: that these provisions might different circumstances, and I would hope that that lead to information that a subscriber may reasonably was clear in the coda. I accept that obviously you expect to be kept private being disseminated among cannot cover every contingency. It is however important many different bodies. The Minister has tried to reassure that the main classes of user understand what is the House that ISPs and copyright owners will be required of them, and how the process will apply to expected to meet a high standard when setting up the them. This will be different, depending on the technology databases and transferring information between them within those sub-classes. I was intending with at the appropriate stage. As with so much in this Bill, Amendment 35 to go a little bit further than that; however, it will not be possible to tell the value of namely that the particular circumstances of libraries, these reassurances until the system has been established. and probably the particular circumstances of some It will provide considerable reassurances for subscribers, hotels and cafes and so on, somehow need to be and indeed ISPs, which are likely to bear the brunt of recognised as well. consumer anger if these standards are not maintained, Giving multiple access is part of their service. This if the code were to be approved by the appropriate goes to a rather more fundamental question of whether person—the Information Commissioner. I beg to move. we should be legislating for fair use, but it seems to me that there could be particular provisions—deals done— 10.30 pm with the ISP, or direct with the rights-holders, which Lord Young of Norwood Green: My Lords, these recognise the particular circumstances of those who amendments are, on the face of it, reasonable and it is are providing multiple-use access. I will not pursue easy to understand and appreciate the intent behind that any further tonight, but once this comes to be them. However, they are not necessary and would slow implemented, we will very rapidly see—as those industries the adoption and approval of the code. A quick summary themselves have warned us—that there will be of the process that the code must go though will help impracticalities in their area if they are treated in the to explain why. Ofcom will have either to develop or same way as any other subscriber. We have had approaches approve a code to underpin the initial obligations. It not only from libraries and colleges, but also from knows that any code must fully comply with existing hotels and others who will need to be reassured on this legislation, including data protection and privacy, before point. it submits it to the Secretary of State. But before the The Minister will be gratified to hear that I will not code gets the Ofcom stamp of approval, it would have go any further tonight. I beg leave to withdraw the been developed with stakeholders and put out to amendment, and I thank the Minister for spelling that consultation. The Information Commissioner’s Office out in such detail. responded to our earlier consultations on online copyright infringement and I would expect it to be similarly Amendment 33 withdrawn. involved in the code consultation, if not the code development process itself. Amendments 34 to 37 not moved. The code then requires the approval of the Secretary of State before ultimately coming before Parliament Amendment 38 for approval. As part of that process we must be sure Moved by Lord Young of Norwood Green that it complies with all legislation and not just that 38: Clause 6, page 8, line 25, leave out “out” concerning data protection or privacy. Therefore, the code will have been developed with stakeholders, have Amendment 38 agreed. gone through a consultation, had Ofcom approval, and had the Secretary’s of State’s approval and that of Cabinet colleagues before it reaches Parliament. It is The Deputy Speaker: I remind the Committee that hard to believe that in all that time the important if Amendment 39 is agreed, I cannot call Amendment 40 issues of data protection and privacy would not have because of pre-emption. been fully investigated and checked. Finally, I have little doubt that before approving the Amendment 39 code the Information Commissioner would want to Moved by Lord Young of Norwood Green consider or consult on it, thus elongating the approvals 39: Clause 6, page 8, leave out lines 27 and 28 and insert— process further. Formally requiring the Information 1307 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1308

[LORD YOUNG OF NORWOOD GREEN] a statutory duty. If that is due to its failings so be it, Commissioner to approve the code is not necessary but what if this is through no fault of Ofcom’s and and could add significantly to the time for the approval something which it has no control over? That is another process. In the light of that explanation on the fullness matter. of the consultation process, I hope that the noble Lord As noble Lords may be aware, under European will feel able to withdraw the amendment. legislation—the technical standards directive—all member states must notify the Commission when they propose Lord Howard of Rising: I thank the Minister for his to introduce legislation that would affect a business helpful remarks. If the Information Commission is wishing to operate in the UK. This notification process going to look at the code en route, I do not suppose requires that the member state submit the proposal in that it will take any longer for it to be looked at a near final form, and that the Commission and other formally, but there you are. I beg leave to withdraw the member states have a three-month period to consider amendment. and comment if they wish. If issues are raised, then Amendment 41 withdrawn. the Commission would look into the proposal in more detail. I hate to say the next bit, but this process can Amendments 42 to 44 not moved. take up to 12 months. During that period the notifying member state cannot proceed with the regulation. Clause 7 : Initial obligations code by OFCOM in the We are certain that the code will need to be notified absence of an approved code and we have built this into the eight-month period allowed to Ofcom. We are also fairly confident that Amendment 45 after the three-month standstill we would be able to Moved by Lord Clement-Jones proceed. However, here’s the rub: we cannot be sure that it would not be delayed further. It is only in this 45: Clause 7, page 9, line 12, leave out “may but need not” and type of situation that we envisage that the Secretary of insert “must” State would allow Ofcom an extension. I want to Lord Clement-Jones: My Lords, in Committee, the reassure the noble Lord, Lord Clement-Jones, that we Government moved amendments to make the code share exactly his concern. We have tried to give him an that needs to be drawn up by Ofcom, if the stakeholders assurance that the only circumstances where the Secretary do not agree among themselves, no longer to have a of State would allow Ofcom an extension would be time limit. Subsection (2)(b) of new Section 124D of circumscribed. In light of the explanation I have just the Communications Act 2003, “Initial obligations given, I hope that the noble Lord will feel able to code by OFCOM in the absence of an approved withdraw his amendment. code”, refers to, “such longer period as the Secretary of State may specify by Lord Clement-Jones: My Lords, I thank the Minister notice to OFCOM”. for that reassurance. It was certainly extremely helpful The Minister was fairly cogent in terms of describing to have that on the record, in terms of talking about why a longer period was needed in terms of the “the only circumstances”, and reassuring to know that standstill required by the technical standards directive he shares our concerns about this potential situation and the standard Ofcom 12-week consultation period. where there is no deadline. It would appear that the whole process would take six It is too late at this stage to go much further into months and, therefore, it was probably unreasonable this. We would have preferred some sort of backstop to specify that the whole code could be produced date rather than just a possibility of it flowing on. within six months. However, as the Minister has assured us that there are However, what appears to be a good argument for only certain, very limited circumstances in which that having a longer deadline fails to justify what the subsection would be invoked, I will bank that assurance Government’s amendment in Committee did, which for the present. I beg leave to withdraw the amendment. was potentially to remove the deadline altogether. That does not appear to be justified. There is considerable Amendment 45 withdrawn. concern among some stakeholders involved that this process could be extended unreasonably and could prevent Ofcom getting code discussions moving on the Amendment 46 not moved. ground that basically there is no longer a time limit. It seems sensible to reintroduce some form of deadline, Amendment 47 which this amendment attempts to do. I beg to move. Moved by Lord Young of Norwood Green Lord Young of Norwood Green: My Lords, these 47: Clause 7, page 9, leave out lines 26 to 40 and insert— two amendments would remove any ability of the “(a) confer jurisdiction with respect to any matter (other Secretary of State to allow Ofcom more time to produce than jurisdiction to determine appeals by subscribers) on a code. I am not in favour of unnecessary delays or OFCOM themselves; time wasting; I share the concern of the noble Lord, (b) provide for OFCOM, in exercising such jurisdiction, to Lord Clement-Jones. I am all in favour of giving make awards of compensation, to direct the reimbursement Ofcom challenging targets, and our provision is just of costs, or to do both; that—challenging but achievable. However, putting (c) provide for OFCOM to enforce, or to participate in the this in legislation means that if Ofcom fails to do so enforcement of, any awards or directions made under the within this period it could be found to be in breach of code; 1309 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1310

(d) make other provision for the enforcement of such Lord Young of Norwood Green: My Lords, I rise to awards and directions; move a supergroup of some 19 amendments. These (e) establish a body corporate, with the capacity to make its amendments cover the very important area of subscriber own rules and establish its own procedures, for the appeals, and I am delighted to be able to introduce purpose of determining subscriber appeals; these proposed changes as a result of the debate that (f) provide for a person with the function of determining we had in Committee and the many concerns that subscriber appeals to enforce, or to participate in the your Lordships raised about the need for greater clarity enforcement of any awards or directions made by the person; and detail in the Bill. The amendments are somewhat complex, and I hope that your Lordships will forgive (fa) make other provision for the enforcement of such awards and directions; and” me if I seek to explain them at perhaps slightly more length than I would want on a single group. Lord Young of Norwood Green: My Lords, I intend The changes that we are making in this group do to speak to the seven amendments tabled by the essentially three things. First, we have streamlined the Government that deal with the removal of the option process to ensure that any subscriber appeal should in each code that an independent body or person follow a single route to the appeals body and then on might administer and enforce it, thereby ensuring that to a First-tier Tribunal should technical obligations this is a role performed by Ofcom itself. This was have been introduced. That means that the dispute something the Committee wished. resolution mechanism for what is currently called a The ability of the code to establish an independent copyright infringement dispute will be restricted to person or body with the powers and duty to administer disputes between copyright owners and ISPs about and enforce the code was considered at some length compliance with the code. We have also renamed these during Committee stage. The Government’s view was disputes “owner-provider” disputes, which adds clarity that this was a pragmatic approach, giving the regulator and should remove the concerns that many noble the option to delegate the duties and work of ensuring Lords expressed about the idea of a “copyright the code worked properly to an independent body. infringement” dispute resolution mechanism. However, a number of noble Lords took a different view, and regarded the possibility of such an independent Secondly, the amendments provide explicitly that body being set up as undesirable and lacking in proper provisions on subscriber appeals should be set out, accountability. and complied with, in the code. Finally, and most Having listened carefully to what was said, the importantly, the amendments introduce a new clause Government have decided that the benefits of pragmatism on subscriber appeals which brings all the provisions are in this case outweighed by the assurance and on appeals together and introduces a number of new benefits of ensuring that this code, and the technical provisions to give more clarity about the rights of obligations code, should one be needed, which are so subscribers. Specifically, the new clause gives subscribers essential to the effective functioning of these provisions, an explicit right to appeal and requires the establishment is administered and enforced by Ofcom as the regulator. of an independent appeals body to be paid for by This does not affect the requirement for an independent copyright owners, ISPs and subscribers. appeals body to be set up. I hope that noble Lords In response to concerns that your Lordships raised, regard this as the right thing to do in the light of the the new clause provides for the grounds for appeal to debate we had on this matter. On that basis I beg include that there was no infringement of copyright, to move. that the report does not relate to the subscriber’s IP Amendment 47 agreed. address and that the copyright owner or ISP contravened a requirement of the code. We listened to what noble Amendment 48 not moved. Lords said about the burden of proof and this clause makes it clear that in all cases the infringement and the Clause 8 : Contents of initial obligations code fact that it relates to the subscriber’s IP address must be proved and that if that cannot be done to the appeal body’s satisfaction then the appeal should succeed. Amendments 49 and 50 Again, we listened to what noble Lords said about Moved by Lord Young of Norwood Green defences and this clause establishes that it will be a 49: Clause 8, page 10, line 18, leave out “subsection (3)” and sufficient defence for the subscriber to show that they insert “subsections (3) and (3A)” did not carry out the infringement and that they took 50: Clause 8, page 10, line 18, at end insert— reasonable steps to prevent other persons from infringing copyright using their internet account. “(ba) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the In response to a recommendation from the Joint meaning of section 124B(3) (see subsections (3B) and (3C));” Committee on Human Rights, the clause includes provision for the appeals body to award compensation Amendments 49 and 50 agreed. to a subscriber and to require the subscriber’s costs to be paid should an appeal be successful. I believe that this also meets the intention behind Amendment 53 in Amendment 51 the names of the noble Lords, Lord Razzall and Lord Moved by Lord Young of Norwood Green Clement-Jones. The clause gives the appeals body the 51: Clause 8, page 10, line 25, leave out “enforcement and power to confirm or reject the application of a technical related matters” and insert “administration and enforcement” measure, or to substitute another measure that the ISP 1311 Digital Economy Bill [HL][LORDS] Digital Economy Bill [HL] 1312

[LORD YOUNG OF NORWOOD GREEN] amendments that I have put down in detail tonight—they has the power to take, and allows it to show leniency are intended to be helpful in the earlier part—but where an appeal is not upheld but there are special when we come to the latter stages and the imposition circumstances. of the sanctions, I shall remain pretty implacably The clause includes the provision that was already opposed to this. It will act to the detriment not only of in the Bill for an appeal against a decision of the consumers, but also ultimately of the rights-holder appeals body to the first-tier tribunal when technical industry. We ought to find another way. My latter obligations are in force. Finally, in fulfilment of a amendments would delete the reference to the appeals commitment that we gave in Committee, it requires body having the ability to impose those sanctions. that no technical measure should be taken until the I regret that we are not going to get a sensible appeals process has been exhausted—that is another debate on this tonight—despite the quality of the area of concern. personnel still here—but we may have to return to it. It I apologise for speaking at some length, but I will certainly be a matter of debate in another place. believe that this is an excellent package of measures, which is very much offered in response to the debates Lord Lucas: My Lords, I thank the noble Lord and in Committee. I urge your Lordships to support these his team for all the effort that they have put into these amendments. I beg to move. amendments. It is definitely an advance, although I share the fundamental feeling of the noble Lord, Lord 10.45 pm Whitty, that I would rather see this done by due Lord Clement-Jones: My Lords, again, I think that process. Perhaps he should follow the latest advice on it would be churlish not to rise, even at this time of how to work out one’s frustration with the process of night, to thank the Minister. There are many aspects, government, which apparently is to stab the upholstery particularly relating to subscriber appeals, which are with a felt-tip pen. I do not know how well that would very much to be welcomed and which the Minister is go down here, but there is a lot of good upholstery. now proposing to or has already put on the face of the Bill. I think that we have every reason to thank the Baroness Miller of Chilthorne Domer: My Lords, I Minister for listening in Committee and for improving share the misgivings of the noble Lord, Lord Whitty, the Bill and its procedures. on this. One of the reasons that we have managed not to challenge the Government more on this matter, and Lord Whitty: My Lords, I am afraid that I cannot that the departments which have introduced the Bill entirely join in the acclaim for these clauses. The remain rather implacable about it, is that they are not Minister has clearly received some good tactical advice the Ministry of Justice. In an era when the Government from his office or the business managers, in that claim to be joined up, it is astonishing that the Department Amendment 51 deals with Clause 8 but the group for Business, Innovation and Skills and the Department actually goes up to—we are just entering the second for Culture, Media and Sport are driving this through stage, but are not really there until Clause 10— against the interests of the citizen and in the interests Amendment 100, which relates to the clause after of industry. It is right that those departments should Clause 13. I was not wide awake enough to object to represent the interests of industry, but where is the this in terms of the grouping. I would not like to representation from the other departments which are accuse my noble friend of sharp practice, but this is meant to be batting in the interests of the citizen? quite clever, as it means that some of the central issues, which I was hoping to debate in relation to Clause 13, Lord Young of Norwood Green: My Lords, it would are now being dealt with tonight. be an interesting debate to look holistically at what is I am happy with a lot of the provisions, even in in the interests of citizens overall. Should we reward Amendment 100, which relates to the body dealing creative rights in industry? I believe that we should with appeals against the process that the notification and that that is in the interests of citizens overall. Is has gone through. What I am not at all happy with is this flying in the face of justice, natural or otherwise? the whole provision post Clause 13, which allows the No, it is not because it is—as the House has agreed—a appeals body, rather than a court, to impose sanctions. very gradual process which does not even introduce I have a fundamental opposition to this and will have technical measures until we have had a year to assess to return to it in some other way—I hope that I can get the process and we decide that it is necessary to use equally good tactical advice as to how to do it on this them at all. If we get to the point where those sanctions Bill. My fundamental opposition to this has perhaps are introduced, there is a First-tier Tribunal, which is a made me sharper in my criticism of earlier parts of the judicial process. We believe that is better than dragging Bill than the Minister thought appropriate. people in front of the courts. I again remind noble At the end of the day, this is where we end up—with Lords that nobody gets there unless they really are an administrative process that denies the subscriber serial infringers. We have tried to respond to a number who has been accused of an infringement the right to of very important and constructive comments that due process and the right to go to court. In all other were made during debates on these issues. We have cases where breach of copyright is alleged, access to submitted a range of amendments that I believe the court on the part of the defendant is always have in many cases met genuine concerns, although available. This is a new move, which raises fundamental they may not please everybody. issues. I will not go on about it any further tonight, but I will return to the matter. I need not deal with the Amendment 51 agreed. 1313 Digital Economy Bill [HL][1 MARCH 2010] Digital Economy Bill [HL] 1314

Amendment 52 agreed. Amendment 52 Amendment 53 not moved. Moved by Lord Faulkner of Worcester 52: Clause 8, page 10, line 26, at end insert— Consideration on Report adjourned. “(fa) that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);” House adjourned at 10.52 pm.

GC 317 Electronic Commerce Directive 2010[1 MARCH 2010] Electronic Commerce Directive 2010 GC 318

be regulated by member states. Such regulation includes Grand Committee the criminal law, if that law affects providers of information society services. Monday, 1 March 2010. The directive applies to the offences of stirring up hatred on religious grounds and on grounds of sexual 3.30 pm orientation. Those offences can cover stirring up hatred The Deputy Chairman of Committees (Lord Colwyn): through any medium, so it is possible to commit the My Lords, I remind noble Lords that in the case of offences by providing commercial services online. each statutory instrument, the Motion before the Turning briefly to the detail of the regulations, I say Committee will be that it has considered the statutory that Regulations 3 and 4 implement the directive’s instrument in question. The Motions to approve statutory “country of origin” rules. Those rules broadly say that instruments will be moved in the Chamber in the usual a provider of information society services must be way. If there is a Division in the House, the Committee regulated by the law of the state in which the provider will adjourn for 10 minutes. is established, not the law of the state in which the services are received. That is what Regulation 3 does. Electronic Commerce Directive (Hatred Similarly, the “country of origin” principle has the effect that the UK must not restrict the freedom of against Persons on Religious Grounds or service providers established in another European the Grounds of Sexual Orientation) economic area state to provide their services in the Regulations 2010 UK unless certain conditions apply. Such providers will generally be regulated by the other state in which Considered in Grand Committee they are based. Therefore, Regulation 4 provides that proceedings for these offences may not be brought 3.31 pm against a service provider from another European Moved by Lord Bach economic area state, unless specific conditions are satisfied relating to the public interest. That the Grand Committee do report to the Of course, intentionally stirring up hatred on either House that it has considered the Electronic Commerce ground is a serious offence. In practice, it is therefore Directive (Hatred against Persons on Religious likely that the public interest conditions would always Grounds or the Grounds of Sexual Orientation) be met in such cases. Regulations 2010. Regulations 5 and 7 implement the requirements of Relevant document: 5th Report from the Joint the directive in relation to intermediary service providers. Committee on Statutory Instruments. These are mere conduit providers that cache or host information. The directive requires us to limit the The Parliamentary Under-Secretary of State, Ministry liability of such intermediary service providers. of Justice (Lord Bach): My Lords, these regulations I will briefly mention some of the history regarding are a technical measure to implement the EU directive implementation of the directive, which was originally on electronic commerce—known conveniently as the implemented by regulations in 2002. Those regulations e-commerce directive—in respect of the offences in applied the directive to all legal requirements then Part 3A of the Public Order Act 1986. The regulations existing, therefore including all offences that existed at will enable us to commence the offences of stirring up that time. For offences passed after that date, we have hatred on grounds of sexual orientation. The offences to implement the directive on a case-by-case basis. themselves are found in the 1986 Act. They were I mentioned that the draft regulations cover the inserted by the Criminal Justice and Immigration Act 2008. offences of stirring up hatred on the two grounds. The I will not go into the details of the offences here; this is offences of stirring up religious hatred were created by not the right place to have that debate. We want to the Racial and Religious Hatred Act 2006, which commence those offences as soon as possible. The added a new Part 3A into the Public Order Act 1986. regulations also implement the e-commerce directive The directive was implemented in respect of the religious in respect of the offences of stirring up religious hatred offences by regulations in 2007. hatred. That also appears in Part 3A of the Public The Criminal Justice and Immigration Act 2008 Order Act 1986. extended the offences in Part 3A to include stirring up The e-commerce directive plays a significant part in hatred on grounds of sexual orientation. These regulations the way that Europe ensures free movement of services are therefore necessary to implement the directive in within the European economic area. Meeting our relation to the extended offences in Part 3A. They will obligations under the directive is of importance and do so in a way which ensures that implementation will helps to ensure a level playing field for service providers. be consistent for all the offences in that part. The directive deals with providers of “information The regulations are made under Section 2(2) of the society services”—which are, broadly speaking, European Communities Act 1972. That Act provides commercial activities that take place online. It covers a that regulations made under Section 2(2) cannot result wide range of online activities, such as selling goods in the imposition of a penalty of more than two years’ and services, as well as video on demand, hosting a imprisonment. That produces an unfortunate and website or providing web or e-mail access. As I said, undesirable anomaly. The offences in Part 3A of the the directive deals with commercial services provided 1986 Act carry a maximum penalty of seven years’ online and how the providers of such services should imprisonment. If the two-year penalty limitation were GC 319 Electronic Commerce Directive 2010[LORDS] Electronic Commerce Directive 2010 GC 320

[LORD BACH] Baroness Falkner of Margravine: My Lords, as the to be applied to the regulations, it would mean that Minister describes it, this is a technical measure and I, offences committed by an England and Wales service too, was slightly confused by it. I decided that this was provider elsewhere in the EEA would attract a maximum due to it being above my pay grade, rather than being penalty of only two years, whereas the identical offence unclear also to those who were slightly better versed in committed here would attract a seven-year maximum. the measures. It is somewhat clearer to me now, after To resolve that anomaly, Section 143 of a Bill that the Minister gave us such a clear explanation, for noble Lords will well remember, the Coroners and which I thank him. Justice Act 2009, provides that the penalty limit will As we understand it, the regulations on information not apply to regulations made to implement the society services are tweaked to fit in with the amended e-commerce directive. The same issue arises for the Part 3A of the Public Order Act 1986. They are EU services directive, and Section 143 applies to both. narrow regulations, constrained in their scope. We That section came into force when the 2009 Act was hope that they will be applied proportionately. We are given Royal Assent. The regulations make use of that in broad agreement with them, but seek one or two section and will ensure that the penalties available for clarifications. The first is on the “country of origin” offences committed under Part 3A are always the same. rules. While I understand the way that they will work At the same time, to ensure a consistent approach, in England and Wales and in other EEA states, what is we are revoking and replacing the previous regulations not immediately clear is what happens if an offence of that covered the religious hatred offence. Those were stirring up religious hatred or hatred on the grounds made in 2007, so the anomaly I have just mentioned of sexual orientation under UK law is committed applies to them. These regulations will correct that when the commercial service provider is not based in anomaly. There will be a single set of regulations either the UK or the EEA area—when it is based, for covering all the offences in Part 3A of the Public example, in the Middle East or another part of the Order Act 1986. world. Do we have any mechanisms to deal with that I began by saying that the regulations would enable material? This is a wide question, and I will understand us to bring into force the offences of stirring up hatred if the Minister cannot deal with it today. on the grounds of sexual orientation. We intend to do My final question is: can the Minister give us an that as soon as possible. indication of when the regulations will come into effect? He said that he wanted them to come into effect Lord Henley: My Lords, I thank the Minister for as soon as possible; I wonder whether he has some introducing the draft statutory instrument, which he dates in mind. Will he also clarify whether only England described as a technical measure. I have to say that it is and Wales are covered by the regulations, or whether a very technical measure, which I had considerable Scotland and Northern Ireland are also included? problems trying to understand as I travelled down on the train this morning. I was of the view that this might be legislation by obfuscation, in that I found it Lord Bach: I am grateful to both noble Lords for difficult to understand what on earth it was getting at. their support and contributions. I am delighted that I was grateful for the Explanatory Memorandum, these technical regulations have become marginally which at least had—as always—something about what clearer as a consequence of my describing them. I will was being done and why, under paragraph 7 on the attempt to answer the questions raised. policy background. Even then I was still somewhat On the issue of racial and sexual equality, the Acts confused, and I have only one or two questions to put of Parliament that established offences in that area to the noble Lord. came before the 2002 directive, and existing regulations First, I noted the title, but could not work out why cover the position adequately at the moment. There is race and sex—for example—were not included in the no major regulatory impact, I am glad to say. The list of things that discrimination might be applied to. transposition note simply states, in tabular form, how They might be covered by other regulations that I have the regulations implement each requirement of the had the privilege of listening to the Minister describe directive. With regard to the other matters, we hope to on an earlier occasion. put this part of the Act into effect in weeks rather than My next point—again it is very minor, but perhaps months. That is the best I can do regarding that. the noble Lord will be able to help me—is that the Could a provider based, for example, in the US or Explanatory Note to the regulations explains, in the the Middle East commit an offence here? A person last paragraph, that a transposition note has been who commits the offence in England and Wales is prepared. I understand that I can get that from the liable, so if a service provider commits the offence in Criminal Law Policy Unit at the Ministry of Justice. the course of providing their services in England and No doubt I ought to have got hold of it before this Wales they will be guilty like anyone else. The relevant debate. Perhaps the noble Lord can tell me what is in material to meet the threshold of the offence would the transposition note, and in the regulatory impact need to be threatening and intend to stir up hatred on assessment that was prepared by the Department for the grounds of either religion or sexual orientation, Business, Innovation and Skills. No doubt the noble but the regulations do not impact on non-EEA providers. Lord referred to that in his opening speech, but I Like anyone else, Scottish service providers that missed it. I would be grateful for an assurance from commit the offence in the course of providing their him that there is no major regulatory impact, which is services will be liable for the offence, but the offence why the assessment was made. extends only to England and Wales so Regulation 3, I have no further points to make on the regulations. which extends the liability of service providers to acts GC 321 Electronic Commerce Directive 2010[1 MARCH 2010] Data Protection Order 2010 GC 322 committed in other European economic area states, Commissioner, will ensure that only those contraventions applies only to service providers established in England that are sufficiently serious and deliberate or reckless and Wales. warrant the issuing of a civil monetary penalty, and I am grateful to both noble Lords for their will ensure that the penalties are administered fairly. contributions. The Government know how important it is to safeguard personal data. The ICO’s Annual Track Motion agreed. survey 2009, recently published, shows that protecting people’s personal data is considered a top concern, only behind preventing crime. Only a small amount of Data Protection (Monetary Penalties) data need to be misused for damage and distress to be Order 2010 caused. Considered in Grand Committee There is widespread support for the introduction of this power. In particular, your Lordships will remember that the Data Sharing Review Report, the Thomas-Walport 3.46 pm report, published in July 2008, specifically called for Moved By Lord Bach stronger penalties and sanctions and that the Information Commissioner should be given increased powers and That the Grand Committee do report to the resources to carry out his duties more effectively. House that it has considered the Data Protection More recently, in November and December last (Monetary Penalties) Order 2010. year, we held a public consultation on the Government’s Relevant document: 6th Report from the Joint proposal to set the maximum amount for civil monetary Committee on Statutory Instruments. penalties at £500,000. The large majority of respondents agreed that there was a need for such a power and supported its immediate introduction. In addition, The Parliamentary Under-Secretary of State, Ministry there was cross-party support in another place for the of Justice (Lord Bach): My Lords, this order relates to introduction of this power. the power of the Information Commissioner to impose a civil monetary penalty on a data controller that Additionally, we have worked closely with the seriously contravenes the data protection principles. Information Commissioner’s Office and involved other stakeholders in the development of this policy. We The order supplements the provisions of Sections 55A held two stakeholder events to discuss the new regulations and 55E, which were inserted into the Data Protection and the commissioner’s guidance on civil monetary Act 1998 by Section 144 of the Criminal Justice and penalties. The Information Commissioner’s guidance Immigration Act 2008. These amendments provided was also available for comment on the ICO website. the Information Commissioner with the power to impose civil monetary penalties. I stress that the majority of data controllers of This order, alongside the Data Protection (Monetary course comply with the data protection principles, but Penalties) (Maximum Penalty and Notices) Regulations a small number do not, and it is the irresponsible 2010, which are subject to negative resolution, will actions of those organisations that we are trying to bring the provisions on civil monetary penalties into address. We believe that civil monetary penalties will force. The Government’s proposal is for these provisions act as an effective sanction and deterrent against serious to commence on 6 April 2010, along with other and careless or deliberate non-compliance. We estimate amendments to the Data Protection Act. The order that the likely number of cases in which the Information was debated and approved in the other place last Commissioner will use this power will be around eight month. a year. The order contains provisions on data controllers’ It is clear that appropriate action must be taken written representations, cancellation, variation, where a data controller deliberately or recklessly enforcement and appeals against monetary penalty contravenes the data protection principles—for example, notices. The other statutory instrument provides details when a data breach occurred because the data controller on the maximum penalty amount, which has been set processed personal data in a completely unsecure at £500,000, and sets out information that a notice of environment, and knew that there was a high risk of a intent and a monetary penalty notice must contain. data breach but did not act to address that risk, such as by using unencrypted laptops which contained personal A civil monetary penalty may be served if the data. commissioner is satisfied that a data controller has committed a serious contravention of the data protection To ensure that the ICO has the resources necessary principles that is likely to cause substantial damage or for this new power and other new responsibilities substantial distress, and which was either deliberate or under the DPA, the Government in October 2009 committed by a data controller that knew or ought to introduced a new fee structure for notification purposes. have known that there was a risk of this type of It consists of two tiers and will lead to greater funding contravention occurring, but failed to take reasonable for the ICO’s data protection work. The new fee steps to prevent the contravention. structure reflects more accurately the costs to the ICO It is important to note that a number of conditions of regulating data controllers. must be fulfilled before the commissioner can impose I will say a few words about how this power will a civil monetary penalty. These conditions, which are operate. The commissioner will need to be satisfied explained in the guidance issued by the Information that there has been a serious contravention of the data GC 323 Data Protection Order 2010[LORDS] Data Protection Order 2010 GC 324

[LORD BACH] supported the proposal, believing it to be a fair and protection principles of the kind liable to a civil monetary proportionate approach. Some 32 per cent were against penalty. The commissioner will consider each possible the maximum penalty, but they were not united because contravention on a case-by-case basis. The commissioner that percentage again split more or less half and half, laid statutory guidance before Parliament on 12 January some in favour and some against. Would the noble this year which sets out his interpretation of the power Lord expand a little on that? and how his office will assess the meaning of “substantial”, Secondly, I should like to know more about appeals, “serious contravention”, and “damage and distress”. dealt with in Article 7 of the order. We are told that A number of safeguards are in place to ensure the Section 49 and Schedule 6 have effect in relation to fairness of this power. First, once the Information appeals, but I think the noble Lord explained that we Commissioner is satisfied that a serious contravention go through the whole tribunal process even though has been committed, he must issue a notice of intent there will be only something in the order of around setting out the details of the contravention, the proposed eight cases a year. penalty, next steps and how the data controller can Thirdly, I have some concerns about the costs of make representations to the Information Commissioner. implementing the civil monetary penalties, which are Next, a penalty notice would be issued only after dealt with in paragraph 10.2 of the Explanatory representations had been received and considered by Memorandum. It states that the costs, the commissioner, or after the deadline for representations “will be met by the recent increase in the notification fee from to be received had elapsed. In addition, data controllers £35 per year to £500 a year for those data controllers with either a have the right to appeal to the General Regulatory turnover of £25.9M and 250 or more members of staff, or, public Chamber against any penalty notice received. On points authorities with 250 or more members of staff”. of law, those appeals can reach the upper tribunal and, I am not clear from that whether those who do not further, the Court of Appeal. Finally, the IC’s guidance meet the figures will pay just £35 a year, or will they must set out how the power will be used. The Government not pay anything? Also, I do not see why we need quite therefore believe that sufficient safeguards are in place such a large increase. A rise from £35 to £500 a year is to ensure that the Information Commissioner is not quite a big percentage increase. The Minister is better the policeman, prosecutor, judge and jury, as was said at maths than I am, so he could tell me exactly what it in the other place. is, or indeed he could look to his noble friend Lord As I have tried to explain, this order sets out some McKenzie. I would guess that it is an increase of of the provisions required to ensure that the monetary several hundred percentage points. I would be grateful penalty framework for serious contraventions of the to know why it was felt that such a large increase was data protection principles is robust and fair to data necessary. No doubt the noble Lord will be given some controllers and the Information Commissioner. Although advice on this before he comes to reply. the Data Protection Act already gives the Information That deals with the various questions I have on the Commissioner an effective framework with which to order. Again, we on this side do not object to the regulate the Act, the power to impose monetary penalties order, but we would be grateful for responses to our of up to £500,000 will provide the commissioner with particular points. an important additional tool. It will act as an effective sanction and a deterrent against non-compliance. The Baroness Falkner of Margravine: My Lords, we commissioner will have no financial incentive to issue support the order. Indeed, the amendment to the Data monetary penalties because any money recovered as a Protection Act which made it possible was introduced result of the issue of these penalties will go to the to the Criminal Justice and Immigration Bill following Consolidated Fund, managed by the Treasury. The amendments from the Liberal Democrats. new powers will contribute to increase compliance The Liberal Democrats calculate that in 2007 alone with data protection principles and strengthen public a record 37 million items of personal data were lost, confidence that data protection safeguards are observed. including the notorious case where the details of 25 million I beg to move. child benefit claimants were lost in the post. I should Lord Henley: I thank the noble Lord for his explanation declare that I was affected by that. Matters have not of the order, which brings in a new and quite high improved noticeably since then and there have been monetary penalty of £500,000 for people in breach. I additional high-profile cases, including, in 2008, the thought that it was the order itself that did this but, on loss by an external contractor of a memory stick going through it, I cannot see where the sum of containing sensitive information about thousands of £500,000 is mentioned. persistent offenders and, in 2009, the case where an employee of T-Mobile sold customers’ details to rival Lord Bach: I have the advantage of being briefed on companies. this. The second, negative instrument that I referred to It is right that data controllers should be subject to sets out the amount, and the two go together. sanctions when such breaches occur. However, the T-Mobile case raises a question about the operation of Lord Henley: I had forgotten that there is a negative the new sanctions which I hope the Minister will be instrument as well as the affirmative one before us. As able to clarify. If a deliberate breach is committed by a I said, it is quite a high figure and therefore it is only junior employee and the organisation denies all knowledge right to ask one or two questions. First, I am grateful of or responsibility for it, how will the Information to the noble Lord for reminding us that there has been Commissioner’s Office determine whether the data consultation on this. As the Explanatory Memorandum controller took reasonable steps to prevent it and, makes clear, some 53 per cent of the respondents therefore, whether the organisation is responsible for GC 325 Data Protection Order 2010[1 MARCH 2010] Personal Accounts Delivery Authority GC 326 the breach? I am aware that, to some extent, this is Of course the noble Baroness is absolutely right probably dealt with in the draft guidance, but it would that the cases take place and the commissioner acts be helpful to have an example, if the Minister can only after discussions have been had with the data think of one, of how these provisions might have controllers. The last resort is to use the law to get applied in the T-Mobile case. penalties so as to persuade against that data protection It is also right that the Thomas-Walport review action. It is not to be used regularly—only about eight highlighted that the Information Commissioner’s Office times a year, we hope—so she is right to mention the should be given the powers and the resources to do its articles in the Economist this week. Any help that can job properly. In conjunction with the new powers in be given to make sure that we do not get into this the Coroners and Justice Act, we welcome this order’s situation too often is very much to be welcomed. move to give the ICO real teeth in data protection. The consultation period lasted six weeks. I have two questions, the first of which concerns the There remains one outstanding matter: how the public response. The noble Lord, Lord Henley, has Information Commissioner will determine whether already raised some issues on this subject but my reasonable steps have been taken. The noble Baroness question is quite simple. We notice that the Ministry of referred the Committee to the T-Mobile case and how Justice press release states that, of the 52 responses provision might have applied to it. The Information received, 27 agreed that £500,000 was the correct Commissioner would need to investigate each case on maximum level. Fifty-two responses is a small sample its merits, of course. Each breach would be different and I wonder for how long the consultation was open. and have its own character. Technical data security My second question looks forward. While these measures breaches will require different reasonable steps such as are extremely welcome and we hope that they will go proper electronic data security, whereas a breach relating some way towards making data controllers more to an employee failure may require proper levels of responsible, will the Government consider improving staff training. I emphasise that the penalties available the regulations earlier on in the system rather than if the order is carried come after discussion and debate simply imposing penalties? in an attempt to make sure that data protection really I refer the Minister to an excellent series of articles means what it says. in the Economist this week, one of which proposes that regulations could require companies or data Motion agreed. controllers to provide annual security audits. These will be similar to financial audits as exist for listed Personal Accounts Delivery Authority companies, and could be used by companies not only Winding Up Order 2010 to improve their performance but to assist the regulator by providing evidence should a problem come to light Considered in Grand Committee subsequently. So we would like a data information 4.09 pm annual audit, please. That is all I have to say, other than to congratulate Moved By Lord McKenzie of Luton the Government on bringing forward the order. That the Grand Committee do report to the House that it has considered the Personal Accounts Lord Bach: I am grateful, again, to both noble Delivery Authority Winding Up Order 2010. Lords for their support and helpful questions. On the Relevant documents: 5th Report from the Joint issue of why there is such a large increase in the tiered Committee on Statutory Instruments and 9th Report fees to the Information Commissioner, tier 2—the from the Merits Committee. £500 tier—represents about 5 per cent of data controllers. For a data controller to be subject to a tier 2 penalty, it The Parliamentary Under-Secretary of State, must have a turnover of more than £26.9 million and Department for Communities and Local Government & more than 250 staff. We believe that is an appropriate Department for Work and Pensions (Lord McKenzie of amount. Clearly the Information Commissioner’s Office Luton): My Lords, the Committee will now consider needed some extra resources and we thought that this the draft Occupational and Personal Pension Schemes was a fair way of obtaining them. Everyone will pay at (Automatic Enrolment) Regulations 2010, laid on least £35. 27 January, the draft National Employment Savings I shall deal with the appeal processes. Following the Trust Order 2010, and the draft Personal Accounts imposition of a monetary penalty, a data controller Delivery Authority Winding Up Order 2010, which may appeal the imposition of the penalty and/or the were both laid on 12 January. I am satisfied that these specific amount imposed. Those appeals go then into instruments are compatible with the European Convention the tribunal system. Most cases will be heard in the on Human Rights. first tier, with the most complex going to the upper This House provides irrefutable evidence that we tier. Appeals from the first tier to the upper tier can are all getting older. By that I mean, of course, that life only be on a point of law. Appeals from the upper tier expectancy is increasing and that more and more lie on a point of law again to the Court of Appeal. people are able to lead full lives and make an active As for the 32 per cent against the £500,000 maximum contribution at an age when, not so very long ago, penalty, the respondents against the maximum figure they might have expected to have been put out to were split between wanting a penalty of up to £1 billion pasture. But increasing longevity brings its own challenges; and to a sum less than the £500,000. On balance, we millions of people are not saving enough to generate felt that the penalty of £500,000 was proportionate. It the retirement income they either want or expect. will be reviewed in three years. Nearly half of working-age employees are not making GC 327 Personal Accounts Delivery Authority[LORDS] Personal Accounts Delivery Authority GC 328

[LORD MCKENZIE OF LUTON] This useful engagement has resulted in a range of any private pension savings at all. That is why the changes that will ensure that these regulations will Government embarked on the workplace pension reform work in practice. Joining arrangements are simpler programme and why we are debating the secondary and should minimise burdens on business, timescales legislation that makes detailed provision in support of have been extended and information requirements cut these landmark reforms. back, the refund process has been aligned with payroll It is some time since this House discussed the cycles, and employers will be able to hold on to provisions now enshrined in the Pensions Act 2008. contributions until the end of the opt-out period. Over the past 18 months our policy has developed and Stakeholders tell us that these draft regulations now been refined, in large part because of extensive engagement reflect a more straightforward and common-sense with stakeholders. We, alongside our delivery partners— approach, which is essential if the new rules are to PADA and the Pensions Regulator—have made significant operate in the real world of pension provision. progress and our programme of work has evolved as The Pensions Act 2008 established who should be we focused more on the practicalities of implementation. automatically enrolled by setting age and earning We have already brought forward two sets of regulations thresholds. The regulations define pay reference periods. that begin the process of making these reforms a This is the device that will enable employers to identify reality: the Employers’ Duties (Registration and jobholders with earnings above the threshold which Compliance) Regulations, which cover the compliance trigger automatic enrolment, and then to calculate regime and the employers’ registration obligations to pension contributions. We have also provided mechanisms the Pensions Regulator; and the Employers’ Duties that will help employers manage the process more (Implementation) Regulations, which prescribe the easily. The regulations enable employers to avoid arrangements for the staged implementation of the accidentally enrolling jobholders with annual earnings employer duty and the phasing of contributions. The latter under the threshold but who occasionally have pay regulations set the timeframe within which these reforms spikes. They provide for the postponement of automatic will be put into operation. We propose bringing employers enrolment, although to protect workers’interests, especially into the duty by size from October 2012, beginning those on short-term contracts of three months or less, with the largest employers and ending with the smallest, employers may only postpone automatically enrolling with all employers brought in by September 2016. an individual once in any one year. Automatic enrolment This is a longer period than originally envisaged. is compulsory.Pension saving is not, so we have prescribed automatic enrolment joining and opt-out periods—now We went out to consult on an approach whereby one month—and opt-out rights. employers would be brought in over three years, reflecting the need to deliver the reforms in an operationally achievable and safe way. Following careful consideration, 4.15 pm we made a further adjustment to the implementation Importantly, we have also defined the rules and plan to ensure support for individuals who are new to time limits for refunds, so that any contributions paid saving and provide support to the newest and smallest by, or on behalf of, a jobholder who opts out, will be businesses in adjusting to the costs. That means that refunded. This process has been designed to align with employers will now be brought in over four years. payroll cycles and existing business practices. In particular, Our implementation plan also phases in minimum it ensures that money does not need to flow into a contribution requirements over time to help employers scheme only to flow back almost immediately. These and individuals gradually adjust to the additional processes address concerns expressed about cash flows, costs. Employers using defined contribution schemes in particular by small businesses, and ensure that will be required to pay contributions of 1 per cent automatic enrolment works in even the most dynamic until staging is complete, 2 per cent for a further year employment sectors. and 3 per cent thereafter. An individual’s decision to opt out may be the right one at that time but circumstances change. We want Increased access to workplace pension saving is these reforms to change behaviours and attitudes towards crucial to tackling undersaving. By introducing a new saving for a pension, and to do this well beyond the duty on employers automatically to enrol their workers initial automatic enrolment stages. For this reason, we into a workplace pension scheme and to pay a minimum require employers to run re-enrolment exercises every contribution towards their pension saving, we are three years. Further, the regulations also prescribe extending access to workers in every employment sector. what an individual must do, should they decide voluntarily The automatic enrolment regulations set out the to opt in, either because they are not eligible for practical detail that will make the reforms work. They automatic enrolment, or because they want to opt in specify what employers must do and prescribe the before the employer’s re-enrolment date. These information flows between the employer, the pension arrangements mirror automatic enrolment to ensure a scheme and the worker. We want these regulations to universal process. We have recognised that the employer is be as simple and flexible as possible and to minimise best placed to give key pieces of factual information burdens on employers. That is why we have consulted about automatic enrolment to jobholders—for example, extensively throughout the past year. Drawing widely the date of enrolment, the details of the scheme, and on expertise from the pensions industry, employers, the value of contributions to be paid to the scheme. business and consumer representatives, and across the The regulations set out the minimum information political spectrum, we have tested and refined our jobholders will need to reduce burdens on employers. proposals. We have listened carefully and responded When the time comes for employers to start positively to concerns. automatically enrolling their workers, they will need a GC 329 Personal Accounts Delivery Authority[1 MARCH 2010] Personal Accounts Delivery Authority GC 330 scheme into which to do this. Employers may use only the scheme. The members’ panel will also allow members schemes which meet the qualifying criteria to comply to have a say in selecting trustee members who will with the duty.We have therefore defined the characteristics operate the scheme on their behalf once it is up and of a qualifying scheme, and set minimum quality running. standards for money purchase, defined benefit, hybrid All employers will be able to use NEST, and will and non-UK pension schemes. To make the joining need information to understand the nature of the arrangements simple, we have made them the same, scheme in order to decide whether it is right for them whatever type of pension product the employer uses. and their employees. The NEST corporation will therefore However, many employers, particularly those with a take steps to increase awareness and understanding of smaller workforce, find it difficult to provide a workplace the scheme among employers and individuals who pension for their workers at a reasonable cost. wish to use it. These reforms aim to correct that situation, and The order gives the Secretary of State the power to that is why the Government are creating the National set lower or upper limits on charges. This is to ensure Employment Saving Trust, previously known as personal that NEST strikes the right balance between the competing accounts. NEST will be a new low-cost pension scheme policy ambitions of being self-financing over the longer- which will form one of the options available to employers term and delivering low charges for members. The to enable them to meet their new duty. The scheme has order also specifies that the NEST corporation must been welcomed by the pension industry, which recognises provide information to the Secretary of State. This that the existing market cannot meet the needs of all will enable the Government to assess whether the employers and all workers. The NEST order, which is reform programme is meeting our objectives—for example, broadly equivalent to a trust deed, establishes the by assessing the contribution NEST has made to NEST scheme as if it were set up under trust. This increasing pension savings among its target membership. order is supported by the scheme rules. We consulted on the draft order and rules last year and responses In addition, the order covers areas that you would were positive. There was broad agreement that the expect to see in the trust deed of any pension scheme: order and rules contain the right measures, and we it provides powers to allow the trustee to make investments responded to comments by developing the drafts to on behalf of members, to make rules for the scheme increase clarity and understanding. and to charge members for the costs of running the scheme. It also includes provisions relating to the NEST will be a defined contribution occupational liabilities of the trustee, the payment of benefits to pension scheme, and will be broadly subject to the members and pension sharing on divorce. The features same statutory and regulatory regime as any other set out in the order are fundamental to our policy scheme of its type. We have, however, included some intentions for NEST. Therefore, the NEST corporation specific features that recognise the unique role and will not be able to change them: the order can be scale of NEST. We want NEST to focus on those changed only by Parliament. employers and workers not effectively provided for in the existing market. To achieve this, NEST will operate Setting up NEST is an unprecedented delivery with an annual limit on contributions and a ban on challenge. We estimate that NEST will have between transfers into the scheme. These measures, which will 3 million and 6 million members, and hundreds of be subject to review in 2017, will ensure that NEST thousands of participating employers. To ensure that focuses on complementing existing pension provision. we get the delivery right, NEST will be launched with a limited number of volunteer employers in spring To ensure that every employer and employee has 2011. This will provide an opportunity to test operations access to an appropriate low-cost scheme, the NEST before the automatic enrolment duty comes into force, corporation will have a public service obligation to so that any initial teething problems can be resolved in accept any employer that wishes to use it, and—once a controlled environment. To meet this timetable, the an employer is participating in NEST—to accept any NEST corporation will be established on 5 July. This worker enrolled by that employer. In addition, it will will allow the trustee to finalise the design and operation not be able to set different charge levels for providing of the scheme before it comes into being. In particular, the same service to different members. Workers who only the trustee can decide the investment strategy and move jobs frequently can find it hard to keep up their set the statement of investment principles. Noble Lords pension savings. However, membership of NEST will will be aware that we have appointed Lawrence Churchill be for the individual’s working life. Members will still as chair-designate of the corporation, and are running be able to save in the scheme if they move jobs, an exercise to recruit other trustee members. We expect become self-employed or even move out of the labour them to be recruited by Easter, enabling them to take market altogether. up their appointments in July. Occupational pension schemes are normally required With the NEST corporation established and in to have member-nominated trustees, and usually have place, the right course of action is to hand over the trustees nominated by the sponsoring employer. However, remaining implementation and operation of the scheme NEST will have millions of members and hundreds of to the new corporation, and to wind up PADA. The thousands of participating employers, making this PADA winding-up order makes provision to dissolve approach unwieldy and unworkable. Instead, NEST PADA on 5 July 2010 and to transfer its property, will have two panels, one to represent members and rights and liabilities to the NEST corporation. This one to represent employers. The job of the panels will will enable a smooth handover between the two be to ensure that the trustees take account of the views organisations and provide continuity, in order to minimise of members and their employers in the operation of delivery risks. GC 331 Personal Accounts Delivery Authority[LORDS] Personal Accounts Delivery Authority GC 332

[LORD MCKENZIE OF LUTON] Secretary of State should be able to use the power only Automatic enrolment will create a presumption to in certain specified circumstances. It is encouraging to save, so that planning for retirement becomes the see that this power has been removed in the final norm. NEST will ensure that those who do not currently version of the order. have access to a suitable low-cost pension have the I turn to the creation of the panels. The original opportunity to save towards a decent income in retirement. proposal said that employers and members panels These are ambitions, landmark reforms that will help should be established within one year of the to deal with the demographic change of an ageing commencement of the scheme. The NAPF argued society. I am grateful to noble Lords for their forbearance that they should be in place from the start. There is no during what has been a lengthy introduction. I commend change in the final version, so this remains a cause for the order to the Committee. concern. It is essential that strong governance is in place from scheme launch. Indeed, I would argue that Lord Taylor of Holbeach: My Lords, I thank the it is perhaps the most critical time to have the panels Minister for his thorough presentation of the three up and running. I hope that the Minister can reassure statutory instruments, two orders and important set of the Committee on this point. related regulations, and for his explanation of the A further question concerns default funds and arises background. They are derivative of the Pensions Act 2008, from Article 29(7). I note that the final version of the which the Minister steered through this House, and order gives NEST extra powers to limit the number of enable the implementation of the provisions of the occasions on which a member may choose where his Act. or her assets are to be invested and the number of Taken as a whole, I agree with him that they are investment funds to which the scheme’s assets may be not particularly contentious, although I suspect that directed. This was not included at all in the original were they subject to the forensic skills of my noble consultation draft. Will the Minister therefore explain friend Lady Noakes, the Minister might find himself the background to its inclusion in the final version? under some pressure to be light on his feet. As the Article 27 of the order, as the Association of British Grand Committee will appreciate, there is a degree of Insurers has said, provides that: consensus on the policy; indeed, my honourable friend “The Trustee must make deductions from members’ pension Mrs Theresa May has today published a pamphlet accounts to contribute to the general”— entitled Providing for Pensions: Principles and Practice a key word that does not appear in the original wording— for Success. For my own part, I declare an interest as “costs of the setting up, administration and management of the an employer in a family business and as chairman of Scheme”. the trustees of the Conservative Agents’ Superannuation Fund. What is the significance of the introduction of the word “general”—are there non-general costs that will We are initially invited to approve the winding up of not be so transferred? one acronym, PADA, and the establishment, with its property rights and liability, of NEST. However fond The Minister will be aware of the widespread concern any of us might have become of the Personal Accounts that NEST must not receive government funding that Delivery Authority and its personal accounts, we cannot would distort competition. Given that the setup costs pretend to be greatly exercised by its passing and for NEST and, for that matter, PADA, are to be reincarnation as the National Employment Savings reclaimed through scheme charges, how long is the Trust. We should ensure, though, that the new body is payback period projected to be, and at what point will constituted to reflect the concerns expressed during NEST be self-funding? It would have helped all of us the consultation process. Not all the elements raised in if the Government had published their decision on the the consultation are reflected in the order. Some will charging level and the structure for the personal accounts depend on the final version of the rules, which will be scheme. Why have they failed to do so to date, and a matter for the NEST corporation. Perhaps the Minister when can we expect it? It is the lack of transparency could confirm that that is the case. that disturbs the ABI. We agree with the National Association of Pension The Minister would acknowledge that spiralling Funds that the new body needs to remain focused on public expenditure on a new national pensions scheme employees without access to a workplace pension. We presents a barrier to reinstating responsible fiscal control also think it is important that NEST is as free as in the micro-economy. Secondly, a national scheme possible from political interference. It would be useful enjoying taxpayer subsidy and continued funding from to have the Minister’s assurance that that is an objective. the Government for a significant period distorts the There has been some modest movement in this direction market for existing pension provision, and could certainly on the power to remove trustees and on the area breach competition law. covering workers without qualifying earnings. The role of NEST in awareness-raising could distract from 4.30 pm its central purpose, which is to extend workplace pension I make one final comment on NEST. Its stated savings to low-income groups that do not currently policy objective is to provide a scheme for the target have access to them. Article 14 appears to tighten up market of moderate to low income earners. Accordingly, the wording, although it would be useful if the Minister Article 22(1) of the order provides that the maximum could elaborate on that. contribution that may be made by, or on behalf of, a I turn to the original proposal that gives the Secretary member of the scheme in tax is £3,600, to be adjusted of State the power to remove trustees. The National by the trustee in accordance with changes in the Association of Pension Funds rightly argued that the average earnings index. However, Article 22(5) provides GC 333 Personal Accounts Delivery Authority[1 MARCH 2010] Personal Accounts Delivery Authority GC 334 that the trustee may determine that paragraph (1) does As the NAPF points out, more flexibility would not apply to a member or a class of member in protect employers offering good quality schemes from relation to a particular tax year. It is not clear to us unnecessary costs and reduce the likelihood of employers why the trustees’discretion in the regulations is unfettered, levelling down. For example, the NAPF has repeatedly although the draft scheme rules for NEST seem to called for employers to be allowed more choice around indicate that that is possible only in a limited number staging dates. These changes are a considerable challenge of circumstances, notably in the year the member dies. to, and could place a burden on, employers. Whatever However, there are as yet no final scheme rules. The we require should be as straightforward as possible. unlimited discretion for the trustee to override the cap For example, it is essential that employers can take a seems incompatible with the policy objective for NEST. common-sense approach to opting out. These regulations Can the Minister clarify in exactly what circumstances set out a prescriptive framework that seeks to limit the trustee can override the contribution? Why were who can hold forms, when they can be given out and those circumstances drafted in the NEST rules rather to whom they can be returned. The real world is than in the regulations? complicated: things get lost, forgotten, filled in incorrectly and handed to the wrong person. Employers need to I turn to the regulations and the issue of auto- feel that they can deal with these situations in sensible enrolment. Conservatives have long believed in auto- ways. enrolment as a way of encouraging pensions savings. However, that does not mean that auto-enrolment is This lies at the core of the anxiety expressed by the dependent on the launch of personal accounts or other consultees, the EEF and the ABI, who spoke of NEST. We have a number of concerns about the the need for the Government to continue to listen to existing model, most notably the interaction with means- stakeholders and not to overcomplicate matters by tested benefits. Moreover, given the lengthy delays in insisting on onerous calculations and individualised implementing NEST, a Conservative Government would testing. I am reminded of the other activities that I bring forward auto-enrolment for existing company undertake in your Lordships’ House, and my view that pension schemes. all Ministers should have a sign above their desks saying, “Remember the Rural Payments Agency and Although the regulations are widely seen as an the single farm payment scheme”. improvement on the draft regulations, there are still In the most exposed position, of course, is the some areas of concern. For example, timescales may temporary work industry. It is not fashionable to prove to be unfeasibly short in some cases—I instance speak in support of temporary and contract work but information flows. I am pleased to note that the CBI is it has provided the UK economy with much-needed happy with the scheme quality requirements, but the flexibility, and the job opportunities it offers will be success of the 2012 reforms can in part be judged by very important in the recovery. It is essential that the rules which enable high-quality defined contribution workers in this market are provided for properly but, schemes to continue to operate. Those have not yet as the Recruitment & Employment Confederation points been laid—rightly, because they are too complex—but out, a common staging date would greatly reduce the when they are drafted after the election, they must bureaucracy and cost of their function and remove avoid individualised testing at all costs. confusion from workers engaged in this form of The most important part of the regulations is the employment. In these regulations there is an old-fashioned change to the 19-day rule, the amendment to the view of what constitutes a proper job. It is clear that Personal Pension Schemes (Payments by Employers) future work patterns will be more flexible. The regulations, Regulations 2000, and so on. The refunds procedure is which are designed to give proper protection to all, now significantly simpler, but the success of the new need to reflect this flexibility and the reality of the process depends on the amendment of the 19-day rule. modern economy. As the Government noted in their response to the first I conclude with an observation. Few areas of batch of regulations, the effect of this change is that government can produce more complex issues than money will not have to be paid by the employer to the those which these orders and regulations seek to address. scheme until after the opt-out period has passed, Whatever the vision we may share on the challenge of minimising the need for refunds. This will give employers providing adequate protection for all in their retirement, and schemes greater flexibility and enable them to we would be wise to keep this provision as simple as avoid some of the costs and red tape of making possible. It needs to be straightforward for employers refunds, primarily by eliminating third parties from to administer if it is not to be a bar to employment. the procedure. Complexity can confuse and confound the best of Amending the 19-day rule is a necessary adjunct to intentions and this is too important a development to the extension of the joining-up and opt-out windows end up bogged down in bureaucracy. and does not undermine the initial policy intent of the current rule, which was introduced in 1993. For the 2012 reforms to be successful, existing rules should be Lord Oakeshott of Seagrove Bay: My Lords, the modified in order to work in tandem with the new noble Lord, Lord Taylor, is selling himself short. He regulations. With a strong employer and compliance did at least as good a forensic job as the noble Baroness, regime, the changes will not bring in any additional Lady Noakes, would have done in his place and he risk for employees in the payment of contributions to should not be modest about it. We broadly support their pensions. It is this need to fit in comfortably with these orders. We support the principle of auto-enrolment existing good-quality provision which presents the and we believe there is now a desperate need to rebuild greatest challenge. private pensions after the collapse—that is not too GC 335 Personal Accounts Delivery Authority[LORDS] Personal Accounts Delivery Authority GC 336

[LORD OAKESHOTT OF SEAGROVE BAY] my interest at the beginning as a pension fund manager strong a word—of provision under this Government. for the last 34 years. I speak with some knowledge of In 1997, a third of private sector employees enjoyed a these matters. They are very important, and I was defined benefit—that is, final salary—public sector-style concerned to see those remarks. pension scheme. Today the figure is 12.3 per cent. That is a dramatic collapse by any standards. The latest The Minister will not be surprised to hear that the figure for private sector employees who have no private other key concern on these Benches is the gaping pension provision at all is 64.6 per cent. We are starting advice gap. It will not pay for people, particularly from a desperate position. those aged over 50, to save a small amount in NEST when there is clearly a high risk that many of them will On the detailed points, I do not propose to rehearse, lose it in means-tested benefits and therefore not be as the noble Lord, Lord Taylor, has, the now broadly any better off. Again, we are concerned that not enough sensible and supportive comments of the National serious attention is being paid to this worry. Having Association of Pension Funds, the Association of said all that, within the existing framework that the British Insurers and the Confederation of British Industry. Government are working to, this is a sensible way Having worked closely on the Bill and with these forward, but we are very concerned about the individual important interest groups over the last few years, I am points that I have raised. pleased to see that the Association of British Insurers in particular is now taking less of what started as a 4.45 pm rather “dog in the manger” attitude towards PADA and NEST. I think everyone is now working in the Lord McKenzie of Luton: My Lords, I thank the same way to try to make the scheme a success. noble Lords, Lord Taylor and Lord Oakeshott, for Having said that, the task is enormous and this will their contributions. I took from each that they were be a very modest and slow-moving contribution. We supportive of the broad thrust of what we are trying on these Benches are concerned about the slow staging to achieve, but they enunciated particular concerns, of bringing this in. Does the Minister see and share which I shall try to allay. I agree with the noble Lord, those concerns? It seems that people believe that their Lord Oakeshott, that the noble Lord, Lord Taylor, pension is being covered when a total 8 per cent should not feel outgunned by his noble friend Lady contribution to a DC scheme is very much on the Noakes. I am sure that she would have given me a hard fringe of whether, over a lifetime, it will provide a time. The noble Lord did equally well. decent pension. Starting off at the lower levels risks sending the wrong message. If people think thata1or He also said that he would not be exercised by the 2 per cent contribution will be enough, they are making passing of PADA because its activities would be inherited a very big mistake. by NEST. That is not completely correct, because PADA’s role was to advise the Government as well as The biggest concern is about the investment policy to prepare for the setting up of the scheme. NEST’s that NEST will now carry out. I should like to press role is to run the scheme in the interests of members. the Minister on this, although he may not have the full That is why the PADA order pushes assets and obligations answer today. I would be grateful if he could look into in two directions, one to NEST and the other to the it because it is a serious concern on these Benches. I do Secretary of State. The noble Lord asked when the not want to name the individual because I do not have employers and member panels would be up and running. any objection to him or even know him, but we are That will happen by the time auto-enrolment starts in particularly concerned about the background of the October 2012. investment director who has been appointed and comes from the hedge fund Thames River Capital. He has The noble Lord said that, should he and his colleagues been quoted as saying that hedge funds must certainly have the opportunity to implement such reforms, they be a part of the NEST investment policy. I was horrified would look to do so before 2012, with early enrolment to read that, given the tenor of our discussions on the into existing schemes to create greatest value—I think Bill and the Minister’s assurances that there would be that that was the point made by the noble Lord. It is a small number of low-cost, simple investment options— reassuring that others share our view on the critical probably a bond fund, a mixed fund, a default fund importance of automatic enrolment; however, it is not and maybe an ethical fund. I was shocked by the idea possible automatically to enrol workers into personal that there could be hedge funds or private equity funds pensions outside the employer duty, as it would not be with their very high charging structures and costs. I do consistent with European consumer directives, the not know what the recruitment process was, and I distance marketing directive and the unfair commercial wonder if, again, the Minister could look into that practices directive. Our work with our delivery partners and come back. One would have thought that the confirms that implementation of the employer duty investment policy and the people running this would cannot be achieved safely or effectively before 2012. come very much from the mainstream of the An integral part of the implementation process is the investment world, such as pension funds or big protection offered to individuals through the compliance insurance companies. This causes us serious concerns regime, and we need to make sure that this protection and I would be grateful if it could be looked into so is fully in place for individuals who automatically that we can be reassured about the options on that enrol. That simply will not be possible before 2012. front. It will be difficult to persuade many people that Thereby there are practical difficulties, although the part of their pension fund should be in even a mainstream noble Lord would not in any event expect me to equity index product—which, in my view if there is a concede that he would have the opportunity to test long-term horizon, it should. I should have declared those. GC 337 Personal Accounts Delivery Authority[1 MARCH 2010] Personal Accounts Delivery Authority GC 338

Lord Oakeshott of Seagrove Bay: While we are on cost of collecting contributions, investing those that point, I think that I heard the noble Lord, Lord contributions and managing members’ accounts. The Taylor, make an important announcement that the NEST corporation may cover other costs such as Conservatives sought to bring in auto-enrolment for excessive fund switches or non-default investment choice all private pension schemes, not just PADA. In that through further charges. The NEST corporation will case, irrespective of the date, can the Minister say also have some minor costs associated with its role as whether that would require separate legislation or an NDPB and in advising Government on pension whether that would be possible under European reforms. These will be met through grant-in-aid rather legislation? Is there a practical problem there? than through members’ charges. We therefore inserted the word “general” to draw an appropriate distinction Lord McKenzie of Luton: Under European legislation between the general costs of running a scheme and there is a practical problem with existing schemes. I specific costs where additional charges can be levied, am receiving reassurance from the Box on that. I know which are set out in Article 27(7) and (8). that from time to time that issue has been the subject of intense discussion, but I am advised that the position The noble Lord went on to ask about the contribution is that it is outwith European requirements. cap: whether in any circumstances the trustee has wide powers to disapply the contribution cap and if this Lord Oakeshott of Seagrove Bay: That was helpful. would go against the policy intent. It does not give the Will he write urgently to me and the noble Lord, trustee a mandate to disapply the contribution limit as because we may need to invite the Conservatives to go it sees fit. The circumstances in which the trustee can back to go back to the drawing board on this matter? exercise discretion are set out in the rules, and if the trustee wished to change the circumstances, it would Lord McKenzie of Luton: The noble Lord is tempting need to consult. The trustee needs a degree of operational me. At Question Time he already gave me a good flexibility so that it does not become unnecessarily opportunity, for which I thank him. I shall be happy restrictive to administer the limit, and the rules set out to drop a line to both noble Lords on a matter of fact. the precise circumstances in which the trustee may The noble Lord, Lord Taylor, asked who actually exercise this power; namely, where a member dies or determines the rules. It is for the trustees to do that. the trustee’s liability in respect of a member is discharged The first cut of the rules is made by the Secretary of in a tax year. State on the advice of PADA, but going forward it is The noble Lord asked about funding. My department for the trustees to manage these and to consult on any continues to work closely with the Personal Accounts proposed changes. Delivery Authority to develop a funding strategy to The noble Lord asked specifically whether it was establish the NEST scheme. However, it remains too intended that this would be free of political interference. early publicly to set out the cost of NEST or the detail Absolutely, yes—that is the cardinal principle that we of how it will be financed. We have always said that we are dealing with. can make final decisions only once procurement activity 4.50 pm is complete—that is, when the “i”s are dotted and the “t”s are crossed—and we must avoid the risk that, by Sitting suspended for a Division in the House. responding to understandable interest in the cost and financing of the scheme, we jeopardise PADA’s commercial 5.01 pm negotiations. It is vital that we do all that we can to Lord McKenzie of Luton: I was part way through support PADA in securing the best deal for NEST’s responding to the contributions from other noble Lords, members. We expect to be making announcements in so I shall continue. Perhaps I may turn next to the this area shortly. inquiry from the noble Lord, Lord Taylor, asking what Article 14 is about. It is important that employers The noble Lord also referred to state aid. This was have access to information about NEST so that they part of our debate during the passage of the Pensions can make an active and informed choice about which Act. We have always been clear that we will not give pension scheme best meets their needs. The Government NEST an unfair advantage compared to other schemes. believe that the NEST corporation will be in the best The structure of NEST as set out in the legislation is position to provide information about the scheme. explicitly designed to ensure that it complements the This sort of activity is not normally undertaken by good quality provision that already exists. We need to occupational pension schemes, as they usually have ensure that all employers and employees have access to close links to a specific employer, and therefore a a low-cost scheme, even those that other providers do group of companies. However, this is not the case for not want. That is why the regulations place a public NEST as it has not been established by a particular service obligation on NEST to accept all employers employer for a particular group of employees. Instead, and to charge all members on the same basis. Other NEST will simply be one of the many pension schemes providers would not do that. that employers can choose to use to enable them to Remember that automatic enrolment cannot operate fulfil their new duty. As a consequence, there is a clear unless all employers can access a suitable pension need to create awareness of NEST and its features so scheme, so NEST’s public service obligation will benefit that employers understand how it differs from other both those currently excluded from pensions saving pension schemes available to them. and the broader pensions industry, because it is necessary The noble Lord also asked about Article 27 and to enable auto-enrolment to be introduced, with what the reference to general costs entails. These are consequent benefits due to a subsequent expansion in the normal costs of a pension scheme, including the the market. However, this public service obligation, as GC 339 Personal Accounts Delivery Authority[LORDS] Personal Accounts Delivery Authority GC 340

[LORD MCKENZIE OF LUTON] The noble Lord, Lord Oakeshott, said that the well as the other limitations being placed on the scheme’s staging was too slow and could have an adverse impact operation, could place unique funding pressures on on individuals and their savings. The challenge of NEST,and this is something that we will better understand implementing these reforms is unprecedented, because once PADA’s procurement process is more advanced. they affect more than 1 million employers and more It seems only right, however, that at this stage we do than 10 million people. We are committed to providing not rule out compensating the scheme in some way for the right balance between getting people into pensions the burdens being placed on it if the alternative is to saving as quickly as possible, and delivering the reforms undermine its low-cost aims. That concept is recognised safely and fairly. We have done a lot of work with our in the European state-aid rules, whose purpose is to delivery partners to understand how they will implement prevent anticompetitive behaviour. the reforms, and we have concluded that staging over four years strikes the right balance to ensure that the The noble Lord referred to employment agencies effective systems will be in place to support employers and their significance in the current flexible labour in their new duties. market in the UK. Our estimates represent the aggregate costs of the reforms to business, and they factor in enrolment activity and job churn, and take employment Lord Oakeshott of Seagrove Bay: I am grateful to agencies and temporary agency workers into account. the noble Lord. I am sorry if I did not make it clear The administrative costs are calculated separately by what my reservation was. I appreciate that there is an firm size, but cannot be separated into those businesses enormous logistical problem with the system, and do with high and those with low job churn. not disagree with the timing. However, it is quite wrong and even dangerous to have a scheme come in The noble Lord referred to the length of the initial whenever it can on the basis of much less than a final 8 period in respect of the appointments of the NEST per cent. That is a snare and a delusion. The systems corporation. Prior to the corporation being established are the same whether the contribution rate is 1 per and during any initial period, all appointments to the cent or 3 per cent. I am sorry if I did not make it clear corporation are made by the Secretary of State. At the that my worry is about that and not about timing. end of the initial period, the corporation must have at least nine members in place. As I said, we have already recruited Lawrence Churchill as the NEST chair-designate, Lord McKenzie of Luton: I apologise to the noble and we are currently focusing on a second recruitment Lord: I did not pick up his point correctly. It was exercise to appoint a deputy chair and about seven always envisaged in the Act that there would be a other members. phasing-in that would interrelate with the staging arrangements. That is partly to help individuals who The noble Lord, Lord Oakeshott, referred to someone have not saved in pensions schemes before to adjust to being appointed to deal with investment matters. I the costs and consequences of doing so; and similarly think that that was an appointment to PADA, not to to help employers who have not previously engaged. the trustee corporation, but I will come to that point On the issue of staging, we recognise that some people in a moment. will have less time than others to build up savings. We estimate that somebody who enrolled last could have a The noble Lord, Lord Taylor, asked about certification pension fund 3 per cent lower than if they had enrolled and avoiding individualised testing. We are committed first—but that is because of the staging rather than the to developing a user-friendly certification model for phasing-in component. workplace money-purchase schemes. We understand The noble Lord asked about investment risk. These that this is a particular concern for employers with reforms are intended to enable individuals to make existing pension schemes who calculate contributions greater financial provision for their retirement by making based on basic pay. We decided to remove certification contributions to a defined-contribution pension scheme from the draft workplace pension reform regulations that meets defined quality standards. Like any DC to allow us more time to work with stakeholders to scheme—as the noble Lord is well aware, being an develop a model that meets the needs of employers expert in these matters—NEST will aim to earn a and ensures that individuals are protected. We have return on contributions by making appropriate returned to first principles and are talking to employers, investments. Inevitably, this involves making a judgment the pensions industry and consumer groups about on the balance between the anticipated return from what will work for them. My officials are already investment and exposure to risk. PADA is carrying engaged in early discussions with stakeholders, including out the initial work on the investment approach for the ABI, the CBI and the NAPF to discuss possible NEST. It will prepare recommendations for the NEST options. The engagement to date has been very corporation which will, as the trustee of NEST, make constructive. all investment decisions. PADA has consulted extensively The noble Lord, Lord Taylor, talked about restrictions with the pension investments industry, unions, employer on the times when members can change investment representatives, consumer groups and academics in funds. As I say, this is simply a matter of good order to develop recommendations that best meet the administration. It avoids the circumstances where a needs of NEST’s likely membership of low to moderate member makes unreasonable demands by changing earners. That consultation was widely praised for its funds with undue frequency. The trustee must be analysis and thorough coverage. reasonable in setting the detail of this provision. We PADA’s emerging thinking, following consultation, consulted on it, and for the sake of clarity it was suggests that the investment approach that many UK included in the draft scheme rules to the order. DC schemes take, whereby members’ contributions GC 341 Personal Accounts Delivery Authority[1 MARCH 2010] Personal Accounts Delivery Authority GC 342 are invested predominantly in the stock market, may Lord Oakeshott of Seagrove Bay: My Lords, I do not be appropriate for the members of the scheme, not think that that is right. I am sure that the noble who are likely to have a low appetite for risk. Certainly Lord will draw to the attention of PADA and NEST one would not imagine the involvement of hedge the detailed debates we have had about the investment funds. PADA is likely to recommend to the NEST policy and what the principle should be; I remember corporation a strategy that invests members’ contributions them well. I hope they are now drawn, fully and properly, in a range of asset classes such as government bonds, to the attention of the people taking these decisions so stocks and shares, cash and alternatives. Such an that they are aware of what Parliament’s intention approach would be designed to reduce volatility, as was. If they look at those debates and the noble Lord sharp falls or rises in the fund value would create the revisits them, they will see that there is no way that risk that some individuals would get back less than investment in hedge funds or private equity is appropriate. their contributions. In any DC scheme there are no I recall that we had a discussion on the PPF with guarantees of what an individual’s final pension will Lawrence Churchill, who initially did not seem to take be. A variety of factors can influence pension income, much notice of what Parliament had said. I am pleased such as future annuity rates, inflation and interest to say that he then very quickly took notice and rates, as well as returns on investment. I hope that that behaved in a more proper way. I hope that the Minister has given the noble Lord a flavour of where the will focus on this, take the matter away and draw it to exercise is heading. the attention of these people, who do not seem to be aware of what was said in Parliament. I am sure that if 5.15 pm he looks at what he said and what we said in Committee Lord Oakeshott of Seagrove Bay: Is that the end of on the Pensions Bill, he will see why I am concerned. the Minister’s answer? I raised a serious question about the appointment of Mark Fawcett, but the Lord McKenzie of Luton: My Lords, I am happy to Minister does not seem to be aware that he was take the matter away but the noble Lord should not appointed. He appeared to say that that is for PADA deduce from anything I have said that the way forward and that he would deal with it later, but he has not is likely to be other than on the basis we discussed in dealt with it—so could he please answer the question? Parliament. The debate on social and responsible As I understand it, Fawcett will continue to be employed investment did a couple of rounds through the various by NEST and lead the consultation and advisory courses of the Bill and that matter will also be before processes for it. Can I have a substantive answer to the the trust corporation and its members. question? Why was someone appointed from that We are setting up the trust corporation as an background in investment? What was the process? independent body to run the pension scheme in the Why were mainstream people from pension funds and best interests of its members. The people appointed to insurance companies not appointed? I am pleased to the board of the trust corporation should be experts hear his assurance that it would not be investing in lots and have knowledge in these fields. The direction of of hedge funds, but would hedge funds or private travel of investment policy that the noble Lord infers equity be appropriate at all for NEST? I cannot see is probably wide of the mark. However, I will take the how they would be. matter away. I am sure that those involved will take the I heard the word “alternatives” at the end of what opportunity to read what has been said in these debates the Minister was talking about. In the investment and the debates in the other place around this issue so world, “alternatives” is shorthand for hedge funds, that the noble Lord’s position, and the position we private equity and possibly currency speculation—I discussed as the Bill was going through Parliament, do not know. Can we face up to this issue? Will the are clearly understood. Minister take this back and look at it seriously? I am The noble Lord, Lord Oakeshott, also raised the horrified, and I believe that all the people who were issue of information and advice for individuals. Again, involved in the discussions that we had on the Pensions that was a significant issue that, reasonably, preoccupied Bill will be horrified, that even one penny of the us for much of our time when we were discussing the pensions and savings of low-paid people, who are Bill in Parliament. We are developing an information most at risk on a no-charging scheme, will be put into service as part of the Planning and Saving for Later dangerous investments of this kind. Life campaign. People will be able to access the information they need via the “better future” pages on Lord McKenzie of Luton: My Lords, this was a direct.gov or via a dedicated telephone helpline. public appointment and the noble Lord might be most We have already launched phase one of the service helped if I write to him setting out the background of covering state pensions. We are working closely with the process. other expert organisations and carrying out research On the issue of assurances about the investment to develop the content on auto-enrolment. We will be profile of NEST, this is a matter for the trust corporation providing information so that people can identify what and its members. It is not for the Government or options they have. Some individuals may wish to seek PADA to dictate how it should proceed, although it is further information—for example, those considering given and will give advice. I hope the noble Lord will paying off large, high-interest debt first. That is the have gleaned from what I have just said that it looks as case for any financial decision. We are working with though the thrust of that advice will be towards lower-risk other expert organisations, including TPAS and the operations. I do not want to say too much because it is FSA, to ensure that people with more complex financial not for the Government to determine these matters; it circumstances are provided with the information that is for the trust corporation to do that. they need. GC 343 Personal Accounts Delivery Authority[LORDS] European Union Order 2010 GC 344

[LORD MCKENZIE OF LUTON] Relevant documents: 7th Report from the Joint I remind the noble Lord that the analysis done at Committee on Statutory Instruments and 9th Report the time, which I think is the most up-to-date analysis from the Merits Committee. that we have, could not identify any one group of people who would likely to be worse off from saving in Motion agreed. personal accounts—or NEST, as it now is. Sorry, that covered auto-enrolment, not just NEST. The analysis European Union (Definition of Treaties) showed that 70 per cent were likely to get back twice (Stabilisation and Association Agreement) what they put in and 95 per cent would get back at (Bosnia and Herzegovina) Order 2010 least what they put in. That was the analysis done at the time, and I believe that it still holds good. Considered in Grand Committee

Lord Oakeshott of Seagrove Bay: While the noble 5.24 pm Lord is reminding me of that, I am sure that he will Moved By Lord Brett also remember and want on the record something that concerned us a great deal. The independent PPI identified That the Grand Committee do report to the that women aged over 50 were definitely a high-risk House that it has considered the European Union group. That remains our most serious concern. I am (Definition of Treaties) (Stabilisation and Association sure that the Minister will accept that they are at Agreement) (Bosnia and Herzegovina) Order 2010. higher risk of it not paying to save than other groups Relevant document: 8th Report from the Joint Committee on Statutory Instruments. Lord McKenzie of Luton: Again, I am speaking from memory, but I believe that that question was Lord Brett: My Lords, the stabilisation and association considered in the analysis at the time. It did not agreement, or SAA, is an international agreement conclude that we could assume that women aged over between Bosnia and Herzegovina and the European 50 were in large measure likely to lose out from the Union and its member states. This was signed on arrangements. I know that we had that debate at the 16 June 2008. This treaty has not yet entered into time. Clearly, no one can be certain of an individual’s force, but will do so once all 27 countries have ratified passage through life and what may beset or become of it. This order is a necessary step towards the UK’s them and therefore, from day one, what their pension ratification. The principal effect of the draft order is profile will mean, but the analysis that we did in to ensure that the powers under Section 2 of the aggregate could not identify a particular group of European Community Act 1972 would be available to people who would be missing out. give effect to any provisions of the agreement, and I hope that I have dealt with all the questions permit any expenditure arising from the SAA to be from raised. If I have not, I would be happy to have another the consolidated fund. go, but I think that that has covered everything that Like many other countries in the region, Bosnia was raised. If there are no further points, I commend and Herzegovina has a troubled past and experienced the orders. terrible suffering during the conflict of the 1990s. Since then, Bosnia and Herzegovina has made significant Motion agreed. progress. However, much more remains to be done to embed long-term stability and prosperity. We believe National Employment Savings Trust Order that the draw of EU integration will continue to be a crucial factor in motivating and enabling BiH political 2010 leaders to agree and implement the necessary reforms. Considered in Grand Committee Within Bosnia and Herzegovina, there is support from Moved by Lord McKenzie of Luton: all three constituent peoples and the main political That the Grand Committee do report to the parties for the objective of EU membership. Our task House that it has considered the National Employment today is to debate how this reform process can move Savings Trust Order 2010. forward. Relevant documents: 5th Report from the Joint I should underline that the UK remains a strong Committee on Statutory Instruments and 9th Report supporter of the principle of EU enlargement, including from the Merits Committee. the countries of the western Balkans. Enlargement has been one of the European Union’s biggest success Motion agreed. stories, creating stability, security and prosperity across our continent. The prospect of EU membership was an important factor in supporting the peaceful transition Occupational and Personal Pension to democracy in Greece, Spain, Portugal and central Schemes (Automatic Enrolment) and eastern Europe. It is a vital tool in helping us to Regulations 2010 spread our values and freedoms across the continent. Considered in Grand Committee A larger EU gives us stronger influence in shaping global action to meet today’s challenges and helps Moved by Lord McKenzie of Luton: business and our economy by providing access to a That the Grand Committee do report to the bigger market. Nevertheless, it is important that House that it has considered the Occupational and enlargement is based on conditionality—that a country Personal Pension Schemes (Automatic Enrolment) may only join the EU once it has met all the criteria Regulations 2010. for membership and has undertaken the necessary GC 345 European Union Order 2010[1 MARCH 2010] European Union Order 2010 GC 346 reforms to do so. The implementation of the stabilisation that, although Bosnia and Herzegovina still has much and association agreement is an important step in the work to do, it should be supported in its desire to join fulfilment of that conditionality. NATO? If so, what are HMG doing to encourage EU The SAA recognises Bosnia and Herzegovina as a members to work with them on their NATO membership potential candidate for the EU. It is not a reward; conditions? instead, it is an instrument to enable BiH to move Given Bosnia’s background, the positive measures forward. It sets out stages for Bosnia and Herzegovina’s contained in this SAA will unfortunately be in danger progress towards eventual EU membership via a closer of being held hostage in a fragile political environment. partnership with the EU, under the EU’s stabilisation These difficulties could increase in the run-up to the and association process. A track record of SAA elections planned for October this year. Will the Minister implementation is required before Bosnia and Herzegovina say what plans are in place to make certain that the can achieve candidate status. Bosnia and Herzegovina’s elections in October operate fairly and peacefully? SAA has now been ratified by 18 EU member states, Will he assure us that there are no plans to remove as well as by the Bosnia and Herzegovina Parliament EUFOR at least until the next Bosnian elections in and the European Parliament. The order is important October 2010? and I commend it to the Committee. The agreement aims to encourage free trade between the EU and Bosnia, and between Bosnia and its Baroness Rawlings: My Lords, as we have heard, neighbours. Will the Minister tell the Committee what the purpose of the order is formally to give parliamentary progress has been made in facilitating this, in the approval to an EU stabilisation and association agreement context of moving towards an overall free-trade area? with Bosnia and Herzegovina. The order that ratifies Finally, will the Minister tell us why the SAA is being the SSA will provide enhanced co-operation between ratified only now, when the agreement was signed in Bosnia and Herzegovina and the EU. The agreement 2008? What implications will this agreement have for was signed on 16 June 2008. It covers a wide range of visa and immigration arrangements? agreements, including accession to the WTO, promoting further regional co-operation and fostering fair trade between Bosnia and Herzegovina and its neighbours, Lord Dykes: My Lords, I thank the Minister for some of which are already undertaking similar processes. presenting these orders to the Grand Committee for There are additional measures on co-operation to approval. I also thank the opposition spokesman for her combat terrorism; on border and visa controls; on remarks and questions. I will support the questions assistance to support democratic, economic and that she asked, and look forward to positive answers institutional reform; and generally to help the country from the Minister. to conform to EU standards. This country has declared We considered a stabilisation and association agreement its interest in joining the European Union and is now for Montenegro on 2 December. There are similarities recognised by the EU as a potential candidate for here: we are dealing with the same geographical area. membership. Anxieties were expressed, not least by my noble friend We on these Benches agree that the SAA offers a Lord Ashdown, about the breakaway tendencies that powerful incentive for change. We hope that it will were referred to by the opposition spokesman today, build towards peace and stability in the area. Bosnia and about the disturbing signs in the area and in has made remarkable progress since the end of the Bosnia and Herzegovina. We are anxious that there war. However, although it is no longer on the verge of should be no encouragement from neighbouring states armed conflict, it remains deeply divided, especially for these tendencies, which would make it more difficult politically. There is still serious conflict over the nature for Bosnia and Herzegovina not only to make internal of the state and the role of the international community. geopolitical progress but also to keep to the conditions Bosnia has a significant way to go to provide better of the agreement. This is welcome and, as the Minister governance and services to its citizens. The SAA is not implied, is a stage towards possible future membership the most controversial treaty on European matters. I of the EU, although not a guarantee. However, there is doubt that the order will face much, if any, strong an implication that that is the will. It was handled very opposition. However, if the order is passed, it will well by the Slovenian presidency when this agreement represent an agreement to which the United Kingdom and treaty were first promulgated, and indeed at the will be party. Bearing this in mind, I have a few same time as Slovenia impressed us all by joining the probing questions for the Minister. euro—a long time before the United Kingdom, which Last month, Republika Srpska passed legislation to remains a pity for many of us as observers. enable it to hold a referendum on secession. It has also Having said that, there is now tremendous good attacked the work of impartial international judges will not only in the neighbouring states, apart from the and prosecutors in Bosnia. Undoubtedly, one factor rather disturbing examples I referred to while deliberately that would most help the political stabilisation of not mentioning too many names, but also in the Bosnia and Herzegovina would be the full co-operation western side of the European Union for what may be a of its neighbours, both Serbia and Croatia. What beneficial effect on the stability of the whole area and more could Her Majesty’s Government do to demonstrate indeed on Bosnia and Herzegovina itself. This has to Republika Srpska that secession will not be tolerated been a complicated agreement that was not easy to by the international community? What are Her Majesty’s reach. As we know, the UK is a strong supporter of Government doing to improve the authority of the EU enlargement, including to the countries of the international judges and of the Office of the High western Balkans, and that is why we on these Benches Representative? Does the Minister support the view welcome the order. GC 347 European Union Order 2010[LORDS] Health Protection Regulations 2010 GC 348

Lord Brett: I thank noble Lords for their contributions Montenegro all continue to underline their commitment and for their support for the important treaty that we to helping Bosnia and Herzegovina move forward. are moving towards. They have raised a number of They are all signatories to the Dayton peace accord; as questions that are of concern to us all in a candid and such, they are required to uphold the territorial integrity apposite way. It is important not to see the SAA as the and constitutional structures of Bosnia and Herzegovina, completion of the journey or even the completion of and they have all reiterated that commitment. Good the beginning of the journey, but as the beginning. I neighbourly relations are a key requirement for Serbia, am therefore grateful for the support expressed that Croatia and Bosnia themselves to make progress towards we should continue to offer encouragement to Bosnia EU accession. and Herzegovina while at the same time setting out The final point was about why this taken quite so the conditionalities to be met. If it aspires to EU long. Not least, there are the difficulties that we have membership, it must meet the values that most countries in putting these things before Parliament; the question would eagerly sign up to as a matter of pride. of scheduling for parliamentary progress in these matters The noble Baroness asked about the referendum in has played not a small part in the delay—but we are Republika Srpska. We are deeply concerned about the here where we are. We have an important decision to ongoing ethnic and nationalist rhetoric in Bosnia and make. I hope that I have been able to answer the noble Herzegovina, and in particular the challenges made to Baroness’s and the noble Lord’s questions. the authority of the high representative as set out in This is about the UK fulfilling its role as a member the Dayton peace accord. It is important to state that of the EU, and the EU’s role as a source of stability. we continue fully and strongly to support the high We believe that these are vital to the future peace of representative in his efforts to improve the functionality the western Balkans. The SAAs for the region are of the state and uphold the Dayton agreement. It is a important building blocks in this regard. Ratification view shared by our European partners and is a message of this agreement will serve as a strong political message that should be taken closely to heart by those in the that the EU firmly supports the perspectives of Bosnia country concerned. and Herzegovina and the wider region. As I say, we want to encourage the Government of I thank noble Lords for their contributions. Bosnia and Herzegovina, and we are doing that by preparing them for integration. We urge on the one Motion agreed. hand for the politicians in that country to find common ground and to make the compromises necessary to ensure further progress on the reform agenda, and on Health Protection (Local Authority the other by supporting the high representative and Powers) Regulations 2010 EU special representative in facilitating progress. We believe that by sticking to the principles of a firm Considered in Grand Committee application of conditionality, the draw of EU integration can be used to drive reform forward in the country. We 5.41 pm are prepared to fund and support a number of projects aimed at helping the country prepare itself for further Moved By Baroness Thornton EU integration, particularly by building capacity in key institutions and supporting civil society engagement That the Grand Committee do report to the in the political process. House that it has considered the Health Protection (Local Authority Powers) Regulations 2010. I was asked about the question of NATO membership. In December, NATO Foreign Ministers decided not to Relevant document: 6th Report from the Joint invite Bosnia and Herzegovina to join the membership Committee on Statutory Instruments. action plan. We strongly support the country’s ambitions for NATO membership and we recognise that progress— The Parliamentary Under-Secretary of State, impressive progress in some areas—has been made in Department of Health (Baroness Thornton): My Lords, defence reform, and emphasise regularly that the door there are three statutory instruments before noble remains open on individual partnership programme Lords today. The first set of regulations deals with status and ultimately to membership. Again, though, various matters relating to Part 2A orders, which a it is important to remember the need for conditionality. justice of the peace may make to protect human We therefore support NATO’s decision because we health. The second set of regulations relates to local believe that the credibility of Bosnia and Herzegovina’s authorities’ powers, while the draft order makes a application would be strengthened considerably by minor consequential amendment to the Water Industry making progress in addressing concerns about levels Act 1991. of legal and political functionality and by resolution of the outstanding issues of allocation and the disposal I will set out brief details about the regulations. The of defence property. These are not minor issues by any Health Protection (Part 2A Orders) Regulations require means, given the degree of concern that they cause in the local authority, if it makes an application to a that country. justice of the peace for an order, to notify certain people. This includes, as might be expected, the person Another question was whether Bosnia’s neighbours who is the subject of the application, unless the local are acting constructively. We believe that they are. I authority takes a reasonable view that the person is am certain that we have seen constructive action over likely to abscond or to act in a way that would undermine recent months. The authorities in Serbia, Croatia and the purpose of the application. GC 349 Health Protection Regulations 2010[1 MARCH 2010] Health Protection Regulations 2010 GC 350

Next, the regulations specify the evidence that a The draft Health and Social Care Act 2008 JP must have available before he or she can make an (Consequential Amendments) Order is also before the order about a person. These are quite detailed evidential Committee today. This makes a straightforward requirements and will be of considerable help to the consequential amendment which is needed as a result JP in determining whether the criteria for an order, of the repeal of Section 11 of the Public Health which are set out in the primary legislation, are indeed (Control of Disease) Act 1984. I do not need to detain met. the Committee any longer on this matter. However, that amendment to the 1984 Act reminds us that the Furthermore, the regulations provide a number of regulations are part of an important programme to safeguards for people who might be affected by an modernise the legislative powers available to those order. They ensure that all orders relating to people who deal with risks to public health from contamination are restricted to a maximum of 28 days. They set out or infection. who is an “affected person” with the right to appeal against an order, including the deceased’s next of kin The Committee will be aware that the Health and in the event that an order is made in connection with a Social Care Act 2008 made substantial changes to the dead body. They require the local authority to help Public Health (Control of Disease) Act 1984. Those people subject to an order to understand what the changes introduced powers to deal with significant order does, why it has been made and their right to threats to human health from dangerous infections or appeal against it; and to tell the person of any support contamination from chemicals or radiation. Out-of-date services that are relevant to their circumstances. concepts have been removed and new arrangements for health protection are in place to meet the needs of If a person’s liberty is restricted by an order—if modern society. However, we cannot bring these new they are detained or subject to quarantine—the local measures into force without first making regulations authority must have regard to the impact of the order to complement the changes made to the Act. These on the person’s welfare and that of any dependants regulations will complete the picture of domestic health they might have. protection powers and allow us to bring all the new The regulations also provide a discretionary power measures into force from this April. for a local authority to make a charge for any measures Some noble Lords may recall that I spoke in Grand it undertakes as a result of an order. This could Committee in May 2008 about these changes to health happen if an order requires someone to take certain protection law, then being introduced in the Health measures but the person cannot or will not do so, and Social Care Bill. In the course of those debates, whereby the local authority has to take action itself. my noble friend Lord Darzi of Denham and I made a Finally, the regulations require all applications for number of commitments to Members of that Committee orders and all variations and revocations of orders to as to matters to be included in regulations under the be reported to the Health Protection Agency. proposed new powers. I am happy to say that we have I turn now to the draft Health Protection (Local met all of those commitments in these regulations on Authority Powers) Regulations. These regulations set the Part 2A orders. I have briefly set out the provisions out what local authorities can do to respond to public of the regulations and I hope that the Committee will health threats, without needing to apply to a JP for an see how we have met, and indeed exceeded, those order. The powers are not very different to the powers commitments. local authorities have now. However, they are considerably I will mention one issue which was raised last year updated and brought into line with the principle of in the course of our consultation on the regulations. the new legislation that, with some limited exceptions, Most respondents broadly supported them as they powers imposing restrictions or requirements on a were then drafted, but a number raised concerns that person should be subject to judicial oversight. the legislation could have an adverse impact on people The regulations continue existing arrangements under with HIV or other sexually transmitted infections. We which a local authority may keep away from school a debated this very point in 2008 and I am sorry that it is child who could put others at risk from infection or still a concern for some stakeholders. We have tried to contamination, subject to strict criteria being met. In set minds at rest, because the legislation simply does the event that other children have been exposed, the not permit the use of compulsory powers other than authority can require a list of pupils at the school for in very narrowly defined circumstances, and certainly contact-tracing purposes. A local authority may also not just because a person has a particular type of prevent access to or contact with a dead body which infection. My honourable friend the Minister for Public presents a risk to health. Health recently met my noble friend Lady Gould of Potternewton about this matter. The regulations allow a local authority to make a formal request to someone to take certain action, or to My honourable friend endeavoured to reassure the desist from action, as the case may be, for health noble Baroness, and I repeat the assurance, that there protection purposes; and to disinfect or decontaminate are strong, effective safeguards in place to protect any thing—Members of the Committee will remember people against the misuse of powers. I am pleased to the discussion that we had about “thing”—or any say that, at the Minister’s invitation, stakeholders in premises on request. The local authority may, but is the field have been contributing to the preparation of not required to, offer compensation. These powers will guidance on the new legislation. That work is nearing usually be adequate to deal with a health protection completion, and I hope that the guidance that will issue quickly and with minimum fuss. But if not, the shortly emerge will reassure those who still have concerns. authority may consider applying to a JP for an order. In addition, I assure the Committee that we undertake GC 351 Health Protection Regulations 2010[LORDS] Health Protection Regulations 2010 GC 352

[BARONESS THORNTON] in paragraph 2(a) is surely to show that a person, P, to publish information from the reports of applications presents a significant risk. It is surely not sufficient to for orders, as required by regulations. That will ensure cite evidence of a general nature about the outcome of that their use is monitored. laboratory tests. I should be glad of the Minister’s Noble Lords will be aware that we cannot be comments on that. complacent about the threats to our health and society Paragraph (2)(b) of Regulation 4 relates to the from unforeseen sources. Infectious disease is estimated nature and characteristics of the infection or to cause about a fifth of all deaths across the world. In contamination in question; for example, the mechanism a global society, with swift and frequent travel, by which it spreads and how easily it spreads between international trade and movement of populations, humans. The problem with that, it seems to me, arises there is potential for new strains of infection to emerge with new infections such as swine flu, whose characteristics and spread. We also face increasing risks from and mode of spreading may be completely unknown contamination in various forms, whether accidental or when it first manifests itself. Swine flu is a particularly deliberate. good example, because not only were its characteristics Of course, most people suffering from infection or unknown when it first appeared, but it was thought contamination would not dream of putting others at to have a greater degree of lethality than later proved risk. Health protection legislation is needed for the to be the case. How is a local authority supposed to very rare circumstances where someone refuses to take present evidence to a JP about an infection if the action to protect others and there is no other way to relevant facts about that infection are not yet available? deal with the potential harm but through compulsory Does this mean that in circumstances of this sort local measures, proportionate to the risk presented. Any authorities will simply have to rely on their power to measure which includes powers to place restrictions request people’s co-operation, and that they will not on people, or requires them to do certain things, is be able to apply for a court order unless and until the rightly scrutinised rigorously for its implications for relevant facts about the infection are established? human rights. We believe that the amended Act and Regulation 7 provides for discretionary powers to the regulations we are debating today achieve the right enable local authorities to make a charge in relation to balance between the protection of human health and Part 2A orders as they apply to things and premises. I respect for individual rights. They provide an effective believe I am right in saying that this issue never came way to deal with threats, but at the same time contain up in our debates on the Bill, and I was therefore a safeguards. I commend the regulations and the order little surprised to see it. The power to make a charge is, to the Committee. I gather, not contained in the 2008 Act but rather in other local government legislation. In principle, this is Earl Howe: My Lords, the Committee will be grateful not an unreasonable provision. However, paragraph (3) to the Minister for introducing the regulations which, says: as she said, take us back to our debates on what is now “The amount of the charge imposed … must not exceed the the Health and Social Care Act 2008. Looking back actual costs (including staff costs) incurred by the local authority on those debates, I think that we can be quite proud of in taking measures in relation to the thing or premises pursuant the role that this House played in encouraging the to the order”. Government to make sensible and desirable changes Any student of accountancy will know that there is to the manner in which the provisions of the Act are no such thing as the actual costs. To take an example brought into effect. Most of those changes are designed of a different kind, if I have lunch in a restaurant, the in one way or another to safeguard the rights of the cost of my lunch could be reckoned as just the cost of individual in the face of the range of restrictions and the raw food; or the food plus the wages of the chef requirements which the authorities can deploy for the and the waitress who serves me; or those things plus a purpose of public health protection. I remain grateful share of the restaurant’s light, heat and power bill; or to the Government for being so receptive to the proposals those things plus a share of all the overheads of the that a number of us made in that regard. business including the overheads of its head office. I turn first to the Part 2A orders regulations, and to Any of these, taken as the basis of a calculation of Regulation 4, which covers the evidence required for a costs, could be presented as being reasonable, but each justice of the peace to be sufficiently satisfied as to gives a very different result. A person on the receiving make an order under the provisions of the Act in end of an invoice from the local authority might relation to a person. First, under paragraph (2), he regard a figure nearer to the marginal cost as being must receive a report giving details of the person more reasonable than one based on full-cost accounting concerned. The report need not be in writing and, as I principles. What guidance will be given to local authorities understand it, has to include only one of the four in this regard, and on what basis will local authorities elements listed in paragraph (2)(a). There is nothing be encouraged not to levy a charge where the person wrong with that, it seems to me, as long as the combination would find difficulty paying? of evidence presented is sufficient to purport to show The regulations set a time limit of 28 days on all that a particular person represents a significant risk to orders made in respect of a person. However, they do public health. In that context, my query relates to the not do this in relation to orders made in respect of third element, things or premises. Why is this? What are the remedies “the outcome of clinical or laboratory tests”. open to someone whose property has been seized and That is a rather non-specific phrase. I would have quarantined indefinitely? expected it to say “the outcome of clinical or laboratory One aspect of these regulations which has caused tests in relation to P”. The point of the evidence listed considerable concern is their potential use in relation GC 353 Health Protection Regulations 2010[1 MARCH 2010] Health Protection Regulations 2010 GC 354 to those infected with HIV and other sexually transmitted the cost incurred by the local authority in carrying out infections—an issue which the Minister raised. She the disinfection or decontamination. Again I ask the will remember very well that we debated this issue Minister, what the meaning is of the phrase, “the cost during the passage of the Act in 2008. The particular incurred”? concern in this area stems from the very nature of sexual health services, the effectiveness of which depends Baroness Barker: My Lords, I, too, thank the noble on people having absolute trust that any information Baroness, Lady Thornton, for the thorough way in about them will be kept completely confidential. If which she introduced the regulations. I have been individuals who may be infected with HIV are afraid looking forward to discussing them because, as the that the law may require them to disclose details about noble Earl, Lord Howe, said, they stem from a piece of themselves and their sexual partners, it is highly likely primary legislation that was subject not just to detailed that this will deter them from presenting for testing but to expert scrutiny in your Lordships’ House. I note and treatment in the first instance. That would be in passing that my main disappointment is that the against their own interests, as well as those of others word “fomite” does not appear anywhere in the with whom they may be in contact. regulations. That was one of the many issues on which Against that background, can the Minister give an the noble Lord, Lord Walton, educated those of us assurance that the Government will monitor the use of who took part in the discussion. these powers to ensure that they are not being deployed I will reiterate part of the discussion that your unjustifiably in relation to people with HIV and other Lordships had on the primary legislation. It is correct STIs? The Government have always been clear that the that we should update public health legislation, some powers would be used only in the most exceptional of which has been in existence since the 19th century. circumstances and I accept that that is their intention. It is right that we should take into account the exceptional Nevertheless, the all-hazards approach adopted in the nature of some of the new public health dangers that regulations makes it possible that local authorities have emerged in the past 10 years. However, it is may pursue an overzealous agenda. Therefore, I hope incumbent on us to remember that they are exceptional that the Minister will be able to confirm that the dangers. It is worth reminding ourselves before we go Government will keep a watch on these issues. The any further that the existing public health law is used annual reports from the Health Protection Agency largely in cases where people with mental health problems will provide them with the means to verify that the are a danger primarily to themselves rather than to powers are being used in accordance with the published others. While in future some public health risks may guidance. In addition, I hope that the Government be of a magnitude much greater than that, at the will be alert to any unforeseen or harmful effects of moment it is envisaged that the legislation will apply the powers on sexual health services and on the principally to the group of people to whom it applies communities most affected. now. That is why the general thrust of criticism in your Lordships’ House of the primary legislation was that 6pm there was insufficient protection for people who are I turn to the local authority powers regulations and vulnerable, and who may be ill. The Government have first ask the Minister what I hope is not a difficult addressed some of these concerns in the regulations, question relating to Regulation 8. This confers a power but there are some areas of emphasis where they have on the local authority to request that any person or got it wrong. Therefore I, too, wish to start by considering group of persons should co-operate with it for health the Health Protection (Part 2A Orders) Regulations. protection purposes. I am curious to know why we Like the noble Earl, the thrust of my concern starts need this regulation, because surely the local authority with regulation 4 in regard to clinical or laboratory can already make any requests that it likes of people in tests. As far as I can see, there is nothing in the pursuance of its statutory functions. regulations which states that the tests have to have Secondly, Regulation 3 contains a power for the been conducted upon a person; that that person should local authority to require a head teacher to provide it know the outcome of the tests; and that that person with a list of names, addresses and contact telephone should subsequently have behaved in a way which numbers for all the pupils of a school when certain indicates that they are wilfully ignoring the outcome conditions have been satisfied. I am concerned about of those tests. That is a problem. Many thousands of this: not in principle, but because of the apparent people in this country have been tested for HIV but do absence of safeguards over who may get hold of this not know the outcome of the test. They are not information—some of which, in the wrong hands, routinely told because the tests are conducted as part could lead to all manner of problems. The Minister of a battery of tests for other things. Can the Minister will doubtless tell me that the provisions of the Data clarify that that is the process which a person who is Protection Act will apply, but will she reassure me making an assessment of the level of danger posed by that safeguards will be in place to ensure that someone has to go through? In particular, the evidence untoward leakage of information to unauthorised persons that someone has wilfully ignored the level of threat does not occur and that there will be guidance to that that they may pose to other people is a crucial issue. end? Regulation 4(5) states that the evidence upon which Finally, I turn to the phraseology used in Regulations 4, the justice of the peace will base a decision, 5, 6 and 7 in connection with the charges that local “may be given orally or in writing”. authorities are empowered to levy for disinfection or Am I correct in assuming that evidence would be given decontamination of things or premises. The regulations orally only in a matter of extreme urgency and that it state that the local authority’s charge must not exceed would routinely be the case that evidence was submitted GC 355 Health Protection Regulations 2010[LORDS] Health Protection Regulations 2010 GC 356

[BARONESS BARKER] person. I am trying to imagine what that may mean, in writing and then recorded? The Minister may feel but it is probably correct; you may be testing P’s that I am being slightly pedantic, but when you increase environment as well. That is why that regulation does the likelihood of depriving someone of their liberty not mention P. you have to increase the level of protection for that Why does the legislation extend to those who may person. be infected or contaminated? The issue here is that I, too, want to focus on the issue of charges. The some diseases—for example, tuberculosis and mumps— marginal and direct costs of decontaminating premises are infectious before symptoms appear. New diseases will vary dramatically depending on what is involved. with these characteristics may arise in the future. The This can vary from sending in a squad to clean out a noble Earl indeed said that the unknown may be a house that has been left uncleaned for many years—which greater threat because it is unknown. Where there is a is the circumstance under which many orders have good reason to suppose that a person may have been been issued in the past—through to chemical infected and may be infectious to others, it may be decontamination. Is there a right of appeal for someone necessary to take appropriate measures straight away, who has such charges levied on them? If not, why not? either through a medical examination or quarantine. Some people lead unstable and chaotic lives that lead A community could be placed at serious risk if no them into situations where they come under the auspices action were possible until after the infection had been of this law, and they do not have much money. confirmed by conclusive diagnosis or the onset of Another issue that I wish to raise concerns the symptoms. next-of-kin lists. Quite rightly, donees give a lasting The noble Earl and the noble Baroness, Lady Barker, power of attorney, but do the next-of kin lists include raised the issue of the reporting of orders. We discussed people who have been given a power of attorney under this during the course of the Bill and outside. I had the old system, which pre-dated the current system, several meetings on how one monitors this and why it and who might therefore not be registered on the new is important to do so. Part 2A orders require local list? Many of the people we are talking about are likely authorities to report all applications for an order, and to become old and frail and they may have a power of all variations and revocations, to the Health Protection attorney under the old system which has not been Agency. registered under the new system. On the Health Protection (Local Authority Powers) Regulations, the noble Earl, Lord Howe, made a fair 6.15 pm point about people to whom lists of schoolchildren The Department of Health and the Health Protection could be given. I, too, want clarity on that. The Agency have agreed that that information will be question which underpins both orders is the training published in a way that does not allow the identification of local authority staff who have to make judgments of individuals, although the precise mechanisms have in both cases. We have a set of regulations that are yet to be agreed—that covers the point about designed to meet all circumstances. That means that confidentiality. However, there will be a central record the people who have the power and responsibility to of the orders, and centrally collected information will invoke these regulations need to know that they have be included in the HPA’s annual report. Although the available a variety of responses that are proportionate data will be anonymised, they could still contain sensitive to different levels of risk. In her introduction, the information that would enable an individual’s noble Baroness talked about people who pose a threat identification, so we have undertaken that the information to others. The majority of people who will fall under from the reports will be published in a way that does these regulations pose a threat not to others but to not identify individuals or details of cases that are not themselves. Therefore, the level of judgment which a appropriate material for an annual report. local authority officer has to take in that case is Both noble Lords raised the issue of HIV. We are somewhat different. very keen that the safeguards in place will ensure that I echo what the noble Earl, Lord Howe, said about the powers are not misused. We hope that they will monitoring and reporting on the imposition of these reassure people that they need not fear the new legislation. regulations nationally. I very much look forward to We have endeavoured to meet those concerns in guidance, the Minister’s response to my questions. and stakeholders are participating, as I said in my opening remarks. Those discussions are progressing Baroness Thornton: Before we started, when I was very well. The HPA will be alert to any detrimental talking to the officials, I think I spotted pretty much effect on sexual health services, and we have undertaken the sort of areas with which the noble Earl and the to publish the reports on orders, because we are concerned noble Baroness would be concerned, with one exception. that that does not affect people coming forward for The noble Earl did not ask about the safeguards for necessary tests. children, but I have a response on that. I shall work my On the proper use of information and how we way through various questions. safeguard it, the regulations provide that a local authority The noble Earl asked about testing and evidence, as can require children’s contact details from the head did the noble Baroness. Regulation 4(2)(a) makes it teacher only where strict criteria are met—in short, if clear that the details in the evidence must be, it is necessary to have them for the purpose of taking “insofar as known and relevant”. action to protect human health. We will be looking for “Relevant” is the important point there. The point reassurance that local authorities, which are used to about the clinical and laboratory tests is that tests may handling and safeguarding confidential data, should be carried out on things and premises, as well as on a do so. There is no reason to suppose that the position GC 357 Health Protection Regulations 2010[1 MARCH 2010] Health and Social Care Act 2008 GC 358 will be any different because the local authority will be under the circumstances and must not exceed the cost. requiring the information, but we will also make that It provides a safeguard for the person subject to the clear in guidance. charge, who ultimately has recourse to judicial review. The noble Baroness asked about legal powers, the In answer to the noble Baroness, Lady Barker, the spectrum of measures available to protect public health guidance that we are developing will set out the process and how we will ensure that the most vulnerable and that a local authority must go through, including a confused people are protected, to help them as well to risk assessment, before deciding to exercise its power ensure that they are not a threat. She is right to say or apply for a JP order. The noble Baroness also raised that often they are a threat to themselves rather than the issue, which was discussed when the Act was going to the rest of the world. We have to strike a hard through, of a representative. Somebody appointed balance here, because we want to ensure that surveillance, under the Mental Capacity Act is required to act on immunisation, advice and treatment can be deployed behalf of certain persons. That is something that we to deal with public health threats. We have anecdotal would need to take account of. evidence that very few orders made or considered in I think that covers most of the questions that have relation to people with drug-resistant infectious TB been raised by noble Lords. It was another useful have helped to contain the risk of the infection. That is gallop around this issue. to say, we are mindful of the need to ensure that the procedure is used proportionately. Motion agreed. Both noble Lords raised the issue of the reasonableness of requesting payments. We think that it is important Health Protection (Part 2A Orders) that local authorities have the power to request payment. That is a general, flexible power to ask people or Regulations 2010 groups of people to take or refrain from action to Considered in Grand Committee protect human health. The accompanying power to Moved By Baroness Thornton pay compensation or costs for expenses incurred as a result of complying would remove a possible disincentive That the Grand Committee do report to the to co-operation. A JP order is the last-resort measure House that it has considered the Health Protection for exceptional circumstances where voluntary (Part 2A Orders) Regulations 2010. co-operation is not forthcoming. The request power Relevant document: 6th Report from the Joint will allow local authorities to make a formal request Committee on Statutory Instruments. for compliance before resorting to a JP order. We think that the guidance will cover the issue of Motion agreed. costs and the scale of the charges. These must be reasonable—that is a requirement of the regulations. Local authorities are very experienced at calculating Health and Social Care Act 2008 full-cost recovery and how that needs to be charged. (Consequential Amendments) Order 2010 However, it is a discretionary power, so if it would be a Considered in Grand Committee pointless exercise, they should not go through with it. Moved By Baroness Thornton It would be absurd to try to retrieve costs when the person concerned has no resources at all, but it is very That the Grand Committee do report to the important that those powers exist. House that it has considered the Health and Social It would be disproportionate and unnecessary to Care Act 2008 (Consequential Amendments) provide a specific route of appeal for circumstances Order 2010. that would happen very rarely. The Act already provides Relevant document: 6th Report from the Joint in Section 45M that a person who has been ordered to Committee on Statutory Instruments. take a particular action, or who is an affected person in relation to such an order, may apply to the JP for Motion agreed. the order to be varied or revoked. Under regulations, a charge that the local authority makes must be reasonable Committee adjourned at 6.22 pm.

WS 153 Written Statements[1 MARCH 2010] Written Statements WS 154

agreements (EPAs) with African, Caribbean and Pacific Written Statements countries I encouraged the Commission to press forward Monday 1 March 2010 with negotiating full regional agreements that were truly development-friendly. We also needed mechanisms to implement and monitor existing EPAs. I pressed the EU: Trade Ministers’ Informal Meeting Commission to make progress on the review of the Statement general system of preferences (GSP). We needed increased transparency around the effective implementation of Lord Brett: I represented the United Kingdom at GSP+. I drew all member states’ attention to the the Spanish presidency’s Trade Ministers’ informal plight of Pakistan. I argued that there was an dinner on 21 February. I welcomed the presidency’s overwhelming moral and political case to support the constructive highlighting of the importance of external Pakistan economy at this time, and that an adjustment trade for the economic strength of member states, and of rules within GSP+ could bring trade benefits that the importance of open and fair markets globally as would have wider, mutually beneficial social and political the world emerges from the current economic crisis. I impact. Finally I emphasised the importance of decent pointed to the importance of trade and exports to work. I argued that working more closely with the help tackle unemployment, currently at 10 per cent ILO we could make important progress to ensure that across the EU-27 member states. The EU needed an standards were raised and secured without creating open, fair trading system for our global competitiveness. artificial barriers to trade. I was pleased that my comments were reflected well in the new Commissioner, Karel de Gucht’s response, and I look forward to the UK working closely with the Food: Public Sector Procurement new Commission to deliver this critically important Statement agenda. I emphasised the importance of reaching a balanced The Parliamentary Under-Secretary of State, conclusion to the Doha development round. Only Department for Environment, Food and Rural Affairs through the multilateral trade structures can we address (Lord Davies of Oldham): My honourable friend the the unfair and unbalanced array of trade barriers Minister for Food, Farming and Environment (Jim which prevent growth, particularly in developing countries. Fitzpatrick) has made the following Written Ministerial But I also said that the United Kingdom welcomed Statement. EU progress on reaching free trade agreements, which I have today deposited copies of the report giving were a stepping stone to a multilateral agreement. I the proportion of UK produce supplied to government welcomed the initialling of the agreement with Korea— departments and the Armed Forces, as well as the with potential value of ¤19 billion for the EU—and proportions supplied to prisons and hospitals under stressed the importance to the UK and EU of free contracts negotiated by HM Prison Service and NHS trade agreements with India and Singapore. On a free Supply Chain. A copy of the report is available on the trade agreement with Andean countries currently under PSFPI website at http://www.defra.gov.uk/farm/policy/ negotiation I was clear that we would need reassurances sustain/procurement/index.htm. of adequate and appropriate human rights provisions. I warmly welcomed a renewed focus on economic co-operation with our major trading partners, and the Government: 30-year Rule contribution this could make to EU competitiveness. We needed to prioritise relations with the US, Japan Statement and China. We should focus on regulatory co-operation, on international standards, and an intellectual property The Parliamentary Under-Secretary of State, Ministry framework that reflected emerging new technologies of Justice (Lord Bach): My right honourable friend the and supported greener economic growth. Lord Chancellor and Secretary of State for Justice I pointed to the importance of addressing trade (Jack Straw) made the following Written Ministerial barriers at the EU’s external borders. DG trade in the Statement on Friday 26 February 2010. Commission needed to work with other directorates- I yesterday laid before each House a copy of the general, in particular tax and customs, health and Government’s response to the 30 Year Rule Review consumers, and energy and transport, on a risk-based (Cm. 7822). Copies of this document are available in approach to trade regulation and improve or remove the Libraries of both Houses and also in the Vote disproportionately bureaucratic measures. Office and the Printed Paper Office. I strongly argued that we had to modernise our This publication will further the Government’s plans trade defence rules and ensure a transparent, economic to increase the accessibility of public information to and business-focused system that recognised the realities improve the culture of openness and transparency in of global supply chains. public life. International trade and investment have the potential The right to access information has become a to bring benefits not only to our own economies, but cornerstone of our democracy. On 25 October 2007, also to developing countries. I therefore applauded the my right honourable friend, the Prime Minister, overall EU member state provision of more than announced an independent review of the 30-year rule. 40 per cent of the global aid for trade. But I argued The review, chaired by Paul Dacre, published its findings that the Commission needed more effective and more in January 2009. The Government have carefully flexible systems for spending it. On economic partnership considered those findings. WS 155 Written Statements[LORDS] Written Statements WS 156

As my right honourable friend, the Prime Minister, The autism strategy will set out very clearly what announced on 10 June 2009 (Official Report, Commons, we want for people with autism, and indeed what they 10 June 2009 col. 797) the Government plan to reduce should expect from public services and their communities. the rule to 20 years via amendments to the Public This new national strategy is an ambitious statement Records Act 1958 and the Freedom of Information of intent focusing on five core elements: Act 2000. The Government believe that a 20-year rule increasing awareness and understanding of autism; offers the best balance between openness, affordability developing a clear, consistent pathway for diagnosis and the protection of the public interest in good in every area, which is followed by the offer of a government. personalised needs assessment; The new information access arrangements set out improving access for adults with autism to the in the Government’s response to the 30-year rule review services and support they need to live independently will provide earlier access to a wide range of public within the community; documents, while also ensuring that we are able to helping adults with autism into work, and protect the most sensitive information and the constitutional relationships that underpin our system enabling local partners to plan and develop of government. appropriate services for adults with autism to meet In order to bring forward these important proposals identified needs and priorities. the Government yesterday tabled amendments to the Each of these areas has its own chapter in the Constitutional Renewal and Governance Bill. Those strategy. amendments also provide protection to Royal records. They have been chosen to reflect the findings of the I would like to express my gratitude to Paul Dacre, consultation, the themes emerging from the external and his two colleagues on the review Sir Joseph Pilling reference group which supported the strategy’s and Professor Sir David Cannadine for all their work development and the conclusions of important studies on the review. such as the NAO report. Last year’s National Audit Office report (5 June 2009) Supporting People with Autism through Adulthood Health: Autism reveals widespread evidence of services not meeting Statement need and made a case that investment in services, particularly to support people with high-functioning autism (including Asperger’s syndrome) into employment The Parliamentary Under-Secretary of State, would deliver substantial savings to the public purse. Department of Health (Baroness Thornton): My honourable friend the Minister of State, Department The strategy is a practical document. It starts with of Health (Phil Hope) has made the following Written a long-term vision, but its core is in laying the foundations Ministerial Statement. for long-term change. The overall approach is shaped by existing policy, in particular: I am today announcing the Government’s intent to publish Rewarding and Fulfilling Lives: The Strategy tackling social exclusion; for Adults with Autism in England (2010) on 3 March. personalisation of public services as articulated in A copy will be placed in the Library and copies will be Putting People First; and available to honourable Members from the Vote Office. the emphasis on local solutions to meet local The Autism Act 2009 was a unique and needs; and above all the emphasis on fair chances groundbreaking piece of legislation which signalled and opportunities for all. this Government’s commitment to improve the lives of These form the backdrop to the strategy and give people with autism and their families—and it has been much of its underlying direction. More specifically the reinforced by a range of action across government to strategy recognises the breadth of existing policy and boost the profile of autism across public services. programmes that should deliver better for adults with The Autism Act committed the Government to autism. The strategy focuses on how to make these publishing a strategy for adults with autism in England existing policies work better for adults with autism. no later than 1 April 2010. We are indebted to the The strategy is reinforced by a range of actions honourable Member for Chesham and Amersham across government: (Cheryl Gillan) and the All-Party Parliamentary Group we are funding a study giving better data on the on Autism for its work in bringing forward this legislation. prevalence of autism in the adult population; Autism is a lifelong developmental disability and we will publish before end March a first year although some people can live relatively independently, delivery plan to set out in more detail the timescale others will require a lifetime of specialist care. for implementation in 2010-11; There are approximately 400,000 adults with autistic we will launch in early summer consultation on spectrum conditions (ASC) in England, around half statutory guidance for health and social care bodies of whom have a learning disability. to support delivery, and publish that guidance before Service-engendered barriers to education, employment the end of the year; and the wider community bring economic disadvantage, social isolation, and mental and physical ill health for there will be a new national programme board to adults with ASC. Therefore addressing social exclusion oversee delivery; for adults with autism is an issue which demands a we will develop delivery plans for years two and collective response from services across the public three of the strategy to maintain momentum; and sector. we will review the strategy in 2013. WS 157 Written Statements[1 MARCH 2010] Written Statements WS 158

I am confident that the strategy marks a key milestone independent Director of Service Prosecutions (analogous on the journey towards full inclusion and equality for to the DPP) will be able to take appropriate action people with autism. But real success will depend ultimately against anyone who might not have behaved in accordance not only on transforming services, but on changing with the standards which the MoD and the Armed attitudes across our society. This is not going to happen Forces expect of them. overnight. We need to work together to achieve our Setting up this new team is not an admission of common goal of full inclusion and equality for people fault. Nothing could be further from the truth. Rather with autism. it is a demonstration of the continuing commitment of the MoD and the Armed Forces to transparency and Iraq our respect for proper investigation. The time has come to deal with these unproven allegations once and Statement for all. We have nothing to fear and everything to gain by this approach, because the truth is important for The Minister for International Defence and Security the vast majority of British troops who behaved to the (Baroness Taylor of Bolton): My honourable friend the highest standards in Iraq. Minister of State for the Armed Forces (Bill Rammell) has made the following Written Ministerial Statement. The Armed Forces served with distinction in Iraq in successive Telic operations. A number of allegations Migration of abuse of Iraqi citizens by British service personnel Statement have been brought to our attention by public interest lawyers and more are anticipated. Many of them are sketchy and incomplete in their details; all relate to The Parliamentary Under-Secretary of State, Home events that occurred a long time ago; we are no longer Office (Lord West of Spithead): My honourable friend in Iraq in significant numbers; we do not have access the Minister of State for Borders and Immigration to the claimants; and the seriousness of the behaviour (Phil Woolas) has today made the following Written alleged varies considerably.Investigating these allegations Ministerial Statement. thus presents a huge challenge. Over 120,000 British I am pleased to announce the joint publication by service personnel have served in Iraq and the vast, vast the UK Border Agency and the Foreign and majority have conducted themselves to the highest Commonwealth Office of International Challenges, standards of behaviour, displaying integrity and selfless International Solutions: Managing the Movement of commitment. The uncertainty created by these allegations People and Goods. The document represents the close risks unfairly undermining their reputation and partnership that exists between our departments and achievements and we owe it to them, and to the our close co-operation on the international stage to claimants, that these allegations are properly investigated. secure our border and control migration for the benefit We are therefore determined to ensure that such of our country. investigations are carried out thoroughly and expeditiously, so that—one way or another—the truth behind them Today’s publication updates on progress since our is established. We firmly believe that open consideration 2007 international strategy and sets out how the UK of the issues will establish once and for all that the Border Agency and the FCO will strengthen existing vast, vast bulk of British forces behaved professionally partnerships and develop new ones to continue to and responsibly in Iraq in the most challenging of deliver our objectives overseas. It also shows how the circumstances. Government plan to do more to help developing countries to maximise the development benefits of migration The Special Investigation Branch (SIB) of the Royal and to mitigate the negative effects where they occur. Military Police (RMP) has made progress in investigating the claims. To date we have been treating these allegations We have made impressive progress towards the on a case-by-case basis, but as more have been brought goals we set out in 2007. Our overseas border controls to our attention we have decided to devote even more have been strengthened through the increased use of resource to this work. We are therefore looking to set risk and intelligence tools. The introduction of the up a dedicated team—the Iraq Historic Allegations points-based system has delivered a transparent system Team (IHAT)—to concentrate on these allegations, so which allows us to adapt entry criteria based on economic that these can be addressed as soon as possible. or labour market conditions in the UK. We have also worked closely with international partners to improve Some argue that the Government should hold a co-operation on the return of migrants who are not public inquiry into these allegations: we disagree. We entitled to be in the UK. do not believe that a public inquiry would uncover criminal behaviour, but in the unlikely event that it While our priority is to pursue the interests of the did, a public inquiry would unable to investigate it UK, the impacts of migration on other countries fully, even less impose punishments: that would be cannot be ignored. We are determined to keep improving wrong. Instead we want the court to be assured that, our migration policies so that we do more to facilitate so far as possible, the facts will be investigated—and overseas development. We are considering policies that this will be done transparently, fully and in a that aim to contribute towards this goal. reasonable timescale. The additional resource which Today’s publication sets out proposals to use our the IHAT represents will help to bring matters to as overseas networks to better manage migration and swift a conclusion as is possible. And with this assistance protect Britain’s borders. Copies will be made available the independent service justice system, including the in the Vote Office and the Library of the House. WS 159 Written Statements[LORDS] Written Statements WS 160

NHS: Foreign Nationals Office of the Public Guardian: Key Statement Performance Indicators Statement The Parliamentary Under-Secretary of State, Department of Health (Baroness Thornton): My right honourable friend the Minister of State, Department The Parliamentary Under-Secretary of State, Ministry of Health (Mike O’Brien) has made the following of Justice (Lord Bach): My honourable friend, the Written Ministerial Statement. Parliamentary Under-Secretary of State (Bridget Prentice) On 20 July 2009, my honourable friend the has made the following Written Ministerial Statement. Parliamentary Under-Secretary of State (Ann Keen) The Office of the Public Guardian (OPG) supports announced the outcome of the joint Department of the Public Guardian in discharging his statutory duties Health and UK Border Agency review of the rules on under the Mental Capacity Act 2005. overseas visitors’ access to the National Health Service in England, and the Government’s intention to consult The following list sets out the key performance publicly on the change proposals. Today, on her behalf, targets that have been set for the Office of the Public I am fulfilling that commitment by launching the Guardian for the year 2010-11. consultation. KPI 1: Lasting Power of Attorney/Enduring Power The proposals in the consultation strike a balance of Attorney between public health needs, managing migration and Register and return 90 per cent of applications for upholding humanitarian principles, ensuring that we registration of attorneyship within nine weeks of receipt. continue to deliver high-quality care to all those with a Target time for the registration of applications is legal right to it while protecting our NHS from those 90 per cent in nine weeks. This takes into account the who would take advantage of it. increased numbers of LPAs OPG expects to receive The consultation includes proposals to increase the and develops the aim from 2009-10 of 80 per cent in time that UK residents can regularly stay outside the eight weeks of receipt. Ninety per cent in nine weeks is UK before losing automatic entitlement to free NHS more challenging and provides a better service for a hospital care, and to protect unaccompanied children larger number of customers. who arrive in the UK. We propose to exempt from KPI 2: Supervision of Deputies charges failed asylum seekers who are co-operating with, and are supported by, the UK Border Agency All deputyship cases require the allocation of a prior to returning to their own country, but to charge supervision regime based on risk assessment. all other failed asylum seekers. The timescale to notify new deputies within 20 working In my honourable friend’s earlier Statement (Official days remains the same as last year. However, we have Report, col. 97WS) she said that the Government were increased the target percentage from 90 per cent to attracted to the principle that some visitors should be 95 per cent. This will improve service to more of our required to pay for their NHS treatment through customers. personal health insurance, as is already the case in KPI 3: Supervision of Deputies—case review some other countries. Although developing a scheme A full case review of all deputyship cases subject to that is fair and effective will be challenging, we are supervision will be carried out at least every three determined to take this forward. We will now seek years, and this year the target is to review a minimum views on the merits and feasibility of key principles of 40 per cent of cases. A case review could be a and mechanisms for making this work, which have the combination of, review of annual report; carrying out potential to both increase the income that the NHS a visit; review of supervision level following short-term receives from overseas visitors, and to act as a deterrent intervention. to those seeking to abuse the NHS. Last year the target was to review 10,000 cases that We have also taken the opportunity to consolidate require intermediate and light-touch supervision will the current regulations that underpin the policy on the be subject to a case review during 2009-10. The reviews charging of visitors, and to improve the supporting in the coming year will be more specific to the individual guidance that we provide for the NHS. Neither of issues within the case, and we see this as a key element these updates reflects any change in entitlements or to helping deputies understand and appreciate the PG operating practices, but they are provided in draft supervisory function. form for people to examine and comment on prior to them being launched. KPI 4: Investigations The Minister of State for Borders and Immigration Where concerns are raised about actions of an is today also launching a consultation on the proposal attorney or deputy we will assess risk in 95 per cent to refuse entry to the UK to those who have significant within two working days. Upon receipt of an investigations outstanding debts for NHS treatment. This will help case in the relevant team it is allocated to a specific the NHS to recover debts and discourage further caseworker. We will conclude 75 per cent of investigations those visitors who travel to the UK to seek treatment within three months and 95 per cent of investigations without paying. within six months. The period for responding to the consultation will The new element in this KPI is to conclude 95 per run until 30 June 2010. I have placed the consultation cent of investigations within six months. This provides document in the Library and copies are available to a challenge to ensure the large majority of cases are honourable members from the Vote office. concluded within a reasonable timescale. WS 161 Written Statements[1 MARCH 2010] Written Statements WS 162

KPI 5: Finance committed to electrify the Great Western main line Based on the statutory instrument for fees approved from 2016. The Government have identified appropriate by Parliament, we will aim to achieve 100 per cent full adjustments to the original programme to take account cost recovery. of these developments. This has inevitably extended the contractual negotiations, which are not yet complete Full cost is defined as: and would not be so until mid-March at the earliest. The total cost of carrying out the provision of The negotiations are for a contract of nearly 30 years, services to the taxpayer, less social subsidy/fee remission; a multi-billion pound spend over the course of many financial losses over and above a yearly notional premium; Parliaments. In all the circumstances, the Government in year bad debts write off and exceptional items. do not believe it would be appropriate to enter into KPI 6: Customer Satisfaction this particular contract in the immediate run-up to a Achieve 70 per cent customer satisfaction with OPG general election. To ensure that a decision is taken at service delivery. the beginning of the next Parliament on the basis of This is a new measurement to ensure the OPG the fullest evaluation, the Secretary of State has today maintains and improves the quality of service to its asked Sir Andrew Foster, former controller of the customers. Audit Commission, to provide an independent assessment of the value for money of the programme and the Copies of the Office of the Public Guardian business credibility and the value for money of any alternatives plan have been deposited in the Libraries of both which meet the programme’s objectives. It is critical Houses. It is also available from the OPG website for rail passengers that the right long-term decision is (www.publicguardian.gov.uk). made about the next generation of intercity trains, which will have a life of 30 years or more. Questions for Written Answer: Correction The existing rolling stock dates back to the 1970s Statement and needs to be replaced. If Sir Andrew Foster reaffirms that the Intercity express programme is better than the alternatives, the Secretary of State’s intention would The Parliamentary Under-Secretary of State, be to proceed with the project in the next Parliament, Department of Health (Baroness Thornton): My right subject to satisfactory resolution of all the contractual honourable friend the Minister of State, Department issues. of Health (Mike O’Brien) has made the following Sir Andrew Foster will consult Agility Trains, the Written Ministerial Statement. department, the relevant train operating companies, In answer to a Question following my Statement to the Office of Rail Regulation, Network Rail, passenger the House on 9 February 2010 (Official Report, col. 764), groups and the devolved Scottish and Welsh I stated as understood at that time that on “on 21 April, Administrations. Dr Ubani was convicted, received a four-month suspended Sir Andrew Foster will report within three months. sentence and made a payment, although it is disputed The report and the Government’s response will be whether it was a cost or a fine”. published and reported to Parliament. A copy of the It has come to light that proceedings in Germany letter from the Secretary of State to Sir Andrew Foster against Dr Ubani were finalised on 15 April 2009 has been laid in the Libraries of the House. where he received a suspended sentence of nine months and made a payment of ¤5,000. The CPS understands the sum was a fine, rather than costs. I hope this clarifies the situation. Regional Development Agencies: Northwest Railways: Rolling Stock Statement Statement The Minister for Trade and Investment (Lord Davies The Secretary of State for Transport (Lord Adonis): of Abersoch): My right honourable friend the Minister In order to replace Britain’s ageing fleet of InterCity for Regional Economic Co-Ordination (Rosie Winterton) 125 trains and to invest in capacity and passenger has today made the following Statement. journey improvements on the east coast and Great I am pleased to announce that I have decided to Western main lines, the Government began the InterCity appoint three new board members to Northwest Regional express programme procurement in 2007. The Development Agency. These are Clive Elphick and programme’s key objective has been to achieve value David Goldie to fill the two vacant business positions for money across the lifetime of the trains, taking and Frank Hont to fill the trade union vacancy. account of costs right across the rail industry. Regional development agencies are playing a crucial Good progress has been made, including the role in addressing short-term issues as well as maintaining announcement of Agility Trains as preferred bidder in a long-term vision to help build a resilient economy February 2009. Over the course of the procurement, for the future. The appointees to Northwest Regional however, there has been a reduction in the capacity of Development Agency Board bring a wealth of experience the debt market to support the transaction as originally and knowledge which will be extremely valuable to the envisaged, and passenger growth has also slowed. In contribution that the board can make towards the addition the Government and Network Rail have region’s economic recovery. WS 163 Written Statements[LORDS] Written Statements WS 164

The appointments will commence on the 1 March it is essential to reduce the risk to human health 2010 and expire on 13 December 2012. and prevent negative aesthetic impacts; I have placed further details of these appointments, the unsatisfactory intermittent discharges cause including biographies, in the Libraries of both Houses. reputational risk to the UK, detracting from the I can confirm that the appointments were made in appeal of the river in the nation’s capital, which is accordance with the Commissioner for Public otherwise a great asset to residents and visitors Appointments code of practice. alike; the unique scale and complexity of development will lead to an equally large and complex planning Thames Tunnel process and the Government have a clear interest Statement in ensuring that the planning process goes as smoothly as possible, to ensure that there are not The Parliamentary Under-Secretary of State, significant delays in addressing the problems Department for Environment, Food and Rural Affairs caused by these sewage overflows, while ensuring (Lord Davies of Oldham): My right honourable friend the process is transparent and that all interested the Secretary of State (Hilary Benn) has made the points of view are given a proper opportunity to be following Written Ministerial Statement. heard; and The building of the Thames tunnel is vital for the these improvement works are needed to enable us future health of Londoners and for the environment to continue to meet our obligations under the and reputation of our capital city. I would like to urban waste water treatment directive. The urgency inform the House that I am minded to direct applications of the works is increased by the infraction for the tunnel to the Infrastructure Planning Commission proceedings being pursued against the UK by the (IPC) under Section 35 of the Planning Act 2008 European Commission for an alleged breach of the because I believe that this is likely to be the most directive. appropriate and effective way of reaching a decision I believe that a Section 35 direction is likely to offer on this unique and complex project. the most efficient route for a decision on development Around 32 million cubic metres of untreated sewage of the Thames Tunnel. The announcement that I am and rainwater pollute the River Thames tideway every minded to direct the project to the IPC will allow year from combined sewer overflows (CSOs) when Defra to work with the directly affected London boroughs, stormwater capacity is exceeded. A CSO is a feature of Thames Water and other London stakeholders to a combined system, introduced for the purpose of discuss what a Section 35 direction is likely to involve. relieving the system of flows in excess of a selected It will also allow us to include consideration of the rate, the excess flow being discharged to a local receiving Thames tunnel in the national policy statement for water. A combined system is a system that takes in waste water. both rainwater and sewage. The discharges occur, on The ongoing input of local planning authorities average, once a week and have a significant environmental and local stakeholders will be vital. Under the Planning impact on the river. These discharges can increase the Act, scheme promoters have a duty to consult, and likelihood of fish kills, create a higher health hazard local authorities can make representations if they for users of the river and damage the aesthetic appeal think promoters have not adequately consulted with of the Thames. Following the Thames tideway strategic local authorities on how they carry out their consultation study the Government identified the tunnel, which with local communities. This can result in an application will intercept around 30 million cubic metres of the not being accepted as valid by the IPC. Local authorities average annual discharge, as the best solution to protect will also be invited to submit local impact reports as the River Thames and to ensure that the capital has a part of the IPC’s consideration of applications. sewerage system able to cope with the impact of A final decision on whether to direct the project to population growth, more intense rainfall patterns and the IPC will not be made until after planning applications the reduction of green space available to soak up are submitted under the Town and Country Planning rainfall. Act. I do not expect Thames Water to submit these I believe the project to be of national significance applications before the autumn of 2011. and I am minded to direct it to the IPC for the Further information on the Thames Tunnel and following reasons: Defra’s involvement is available on Defra’s website at it is essential to meet the ecological water quality http://defraweb/environment /quality/water/waterquality/ objectives of a major river; sewage/overflows/index.htm. WA 317 Written Answers[1 MARCH 2010] Written Answers WA 318

involved in the operation, including troops from the Written Answers UK, US, Canada, Denmark and Australia. While the dam does not operate to its full capacity, currently it Monday 1 March 2010 does provide electricity to the population of Helmand. Two generators are in place and being used, along with diesel-powered, local generation to increase supply. Afghanistan While the security situation in the area makes access Question and delivery to Kajaki challenging, supplies, including oil, are being delivered. USAID is leading the work on Asked by Lord Hylton the refurbishment of the power station. It continues to To ask Her Majesty’s Government how many plan to make the facility fully operational. people are held in detention in Afghanistan without charge or prospects of trial (a) by NATO forces, (b) Alcohol by the Government of Iraq, and (c) by United States forces; and whether they will take steps towards Question creating review procedures. [HL2013] Asked by Lord Jones of Cheltenham To ask Her Majesty’s Government what is their Lord Brett: UK Armed Forces are operating in a forecast of the cost to HM Treasury of introducing dangerous environment in Afghanistan. It is essential zero duty on beers of 2.8 per cent ABV and below. that they have the authority and capability to deal with individuals who pose a serious threat to UK and [HL1982] other International Security Assistance Force (ISAF) The Financial Services Secretary to the Treasury troops, the Afghan security forces as well as the local (Lord Myners): No estimate has been made of the cost population. to the Exchequer of introducing zero duty on beers of ISAF, the North Atlantic Treaty Organisation-led 2.8 per cent ABV and below. security and development mission in Afghanistan, is not responsible for charging or prosecuting detainees. ISAF forces are mandated to either transfer detainees Armed Forces: Body Armour to the Afghan Government for prosecution through Question their judicial system or release them. As a sovereign Asked by Lord Astor of Hever nation, responsibility for prosecution lies with the Government of Afghanistan. The question of how To ask Her Majesty’s Government what action many prisoners detained without charge or prospects they are taking following the Osprey Assault body of trial by the Governments of Afghanistan and the armour not passing safety testing, to ensure that US is a matter for those governments to answer. members of Her Majesty’s Armed Forces are provided The London conference held on 28 January welcomed with protective body armour. [HL2041] the Government of Afghanistan’s determination to take on increasing responsibility for detentions. The The Minister for International Defence and Security UK will continue to work with the Afghan authorities (Baroness Taylor of Bolton): We are continually seeking to build capacity within their detention and judicial ways to improve the protection provided to our Armed systems. The Government of Afghanistan will decide Forces personnel, and body armour is part of a constant what review procedures should be put in place. scientific development process. A contract was let to manufacture Osprey Assault body armour plates. These were to offer the same Afghanistan: Dams ballistic protection as the Osprey plate but of a slightly Question thinner design. This contract is being reviewed because after testing we found the plates did not meet our Asked by Lord Maginnis of Drumglass stringent standards. No Osprey Assault plates were To ask Her Majesty’s Government what progress ever issued to troops. has been made in installing the third turbine at the The current Osprey plates, which are second to Kajakai Dam; what was the total financial and none in the world, continue to be issued with the more manpower cost of Operation Oqab Tsuka; and comfortable Osprey Assault covers to form the Osprey whether the position has been affected by financial Assault body armour system. constraints or the level of planning. [HL1053]

The Minister of State, Foreign and Commonwealth Armed Forces: Medals Office (Baroness Kinnock of Holyhead): USAID, the Question US Federal Government agency responsible for the Asked by Lord Astor of Hever US effort in the field of development and reconstruction, is committed to installing a third unit at Kajaki which To ask Her Majesty’s Government how many would increase the generation capacity to 51 megawatts, recommendations for gallantry medals for service and to constructing a new transmission line from in Afghanistan have been submitted in each year Kajaki to Kandahar when the security situation becomes since 2001. [HL2044] permissive. The Ministry of Defence does not calculate To ask Her Majesty’s Government how many the financial cost of individual operations. Four thousand gallantry medals have been awarded for service in International Security Assistance Force troops were Afghanistan in each year since 2001. [HL2045] WA 319 Written Answers[LORDS] Written Answers WA 320

The Minister for International Defence and Security To ask Her Majesty’s Government who will set (Baroness Taylor of Bolton): Citations that demonstrate the remit for the quinquennial review of the activities the highest levels of excellence will be recognised of the British Transport Police; and whether views through the award of medals for gallantry. Therefore, from the public will be sought. [HL2327] there may be other acts of individual gallantry which Asked by Lord Bradshaw are not recognised in this way for a variety of reasons. Nevertheless, all who deploy, and meet the criteria, To ask Her Majesty’s Government whether the receive a campaign medal which recognises the risks discussions about policing of transport interchanges they face in the arduous circumstances in which they during the passage of the Policing and Crime Act are deployed. 2009 will be taken into account in the quinquennial review of the activities of the British Transport Recommendations that are not approved are not Police. [HL2328] retained or recorded. All such records are destroyed, thus enabling impartial consideration of any future The Secretary of State for Transport (Lord Adonis): citations. No information on the number of A review of the British Transport Police Authority is recommendations can therefore be provided. due to take place this year. In accordance with Cabinet Office guidelines, its remit will be set by the Department Recommendations for gallantry awards are made for Transport and I expect one of the areas for through the chain of command. Recommendations consideration to be the possibility of extending the are screened at various levels and a committee comprising jurisdiction of the British Transport Police. senior military officers (all with operational experience) Those carrying out the review will want to take makes the final decisions. It has always been this, and account of the views expressed on the subject during previously, Government’s view that Ministers should the passage of the Policing and Crime Bill and the not be involved in the process of awarding gallantry undertakings given by the Government at the time. medals. The arguments for extending the British Transport Police’s remit are well known and I would expect those Notice of all awards for gallantry is published in with a direct interest to be given the opportunity to the London Gazette. The following table lists the number comment further before any significant changes were of gallantry awards for service in Afghanistan in each made. year. Buying Solutions Year Gallantry Awards Question 2001 0 Asked by Lord Oakeshott of Seagrove Bay 2002 32 2003 3 To ask Her Majesty’s Government how much 2004 4 was paid by HM Revenue and Customs and its 2005 6 agencies to (a) PricewaterhouseCoopers, (b) KPMG, 2006 64 (c) Deloitte, (d) Ernst & Young,(e) Grant Thornton, 2007 49 (f) BDO Stoy Hayward, (g) Baker Tilly, (h) Smith & 2008 119 Williamson, (i) Tenon Group, (j) PKF, (k) McKinsey 2009 157 and Company, and (l) Accenture, in each of the Total 434 past five years for which information is available; how they monitor contracts with those firms; and how the department reports (1) during, and (2) at the end of contracts, to Buying Solutions. [HL2082] The Financial Services Secretary to the Treasury British Transport Police (Lord Myners): HM Revenue and Customs (HMRC) Questions spend information prior to 2006 is held on legacy HM Customs and Excise and Inland Revenue systems and Asked by Lord Bradshaw is not available at the level of detail requested for the To ask Her Majesty’s Government when is the period 2005-06. Information is available at the level of next quinquennial review of the activities of the detail requested for the periods 2006-07 onwards and British Transport Police. [HL2326] is provided in the table below:

Service Provider HMRC—Spend per financial year (£) 2006/07 2007-08 2008-09 2009-10 to date

Accenture 2,337,256 478,997 0 30,920 Baker Tilly 4,000 15,394 0 72,681 BDO Stoy Hayward 23,275 21,799 18,069 4,967 Deloitte MCS Ltd 7,300,231 444,735 7,517,609 11,570,451 Ernst and Young 185,517 106,429 2,358,492 3,803,793 Grant Thornton UK LLP 28,146 13,101 21,537 25,908 KPMG LLP 1,198,652 2,422,338 5,462,555 5,653,448 WA 321 Written Answers[1 MARCH 2010] Written Answers WA 322

Service Provider HMRC—Spend per financial year (£) 2006/07 2007-08 2008-09 2009-10 to date

McKinsey and Company 0 0 0 0 PKF 69,680 87,704 138,827 65,957 PricewaterhouseCoopers LLP 1,302,253 828,427 2,949,391 2,032,219 Tenon 0 0 0 0 Smith & Williamson 0 0 0 0

The increase in expenditure in 2008-09 and 2009-10 The Valuation Office Agency (VOA) is able to is to support delivery in departmental transformation provide detailed information from 1 April 2005 and programmes: government banking, modernising PAYE this is provided in the table below. processes for customers (MPPC), pacesetter/lean, data security and compliance and enforcement.

Service provider VOA—Spend per financial year (£) 2005-06 2006-07 2007-08 2008-09 2009-10 to date

Accenture 0 0 0 0 0 Baker Tilly 0 0 0 0 BDO Stoy Hayward 0 0 0 0 0 Deloitte MCS Ltd 0 0 0 0 708,093 Ernst and Young 0 0 0 0 0 Grant Thornton UK LLP 0 0 0 0 0 KPMG LLP 1,362,188 29,823 0 0 0 McKinsey and Company 0 0 0 0 0 PKF 0 0 0 0 0 PricewaterhouseCoopers LLP 1,245 1,111 0 0 0 Tenon 0 0 0 0 0 Smith & Williamson 0 0 0

Contracts awarded are monitored by the business for Human Rights, who monitored the trial. We are in area (within HMRC or VOA) receiving the services. discussion with EU member states regarding further The service providers are monitored against the agreed representations. contract, which may include assessment of: The UK and its EU partners have on a number of delivery against the agreed key performance indicators; occasions raised concerns with the Government of delivery of agreed outputs, within agreed timescales; Cambodia about treatment of opposition members of the National Assembly.We have also urged the opposition payment, in accordance with the agreed proposal parties to engage constructively with the political process. and fees structure; and In August 2009 the UK as local EU presidency carried skills transfer to staff (where appropriate). out a demarche at the Cambodian Ministry of Foreign HMRC and VOA may on occasion choose to use Affairs to raise concerns about respect for freedom of Buying Solution framework contracts but there is no expression, democracy and the rule of law. The subjects reporting relationship to Buying Solutions since it acts raised included a legal case brought against an opposition as an agent to departments. HMRC and VOA hold MP for criminal defamation. Concerns about the regular business relationship meetings with Buying prosecution of opposition MPs, and respect for democratic Solutions at director level but these do not involve norms and freedom of expression more generally, individual contract spend discussion. were also raised by a number of member states on 1 December 2009 during the UN Human Rights Council’s Universal Periodic Review of Cambodia. Cambodia Mr Rainsy provided Foreign and Commonwealth Questions Office officials with a briefing on his situation during Asked by Baroness Northover his visit to the UK. To ask Her Majesty’s Government whether they Asked by Lord Avebury have made representations to the Government of Cambodia about the conviction and sentencing of To ask Her Majesty’s Government whether they opposition leader Sam Rainsy and two others. will propose that the European Union makes [HL1989] representations to the Government of Cambodia about the convictions and prison sentences passed Lord Brett: The UK is aware of the case of Sam on the leader of the opposition, Sam Rainsy, and Rainsy and two local farmers. Our embassy is in close two Members of Parliament belonging to his party. contact with the Office of the UN High Commissioner [HL1991] WA 323 Written Answers[LORDS] Written Answers WA 324

Lord Brett: The UK is aware of the case of Same The Parliamentary Under-Secretary of State, Rainsy and two local farmers. Our embassy is in close Department for Business, Innovation and Skills (Lord contact with the Office of the UN High Commissioner Young of Norwood Green): The Rural Project, part for Human Rights, who monitored the trial and expressed of the BIS face-to-face debt advice project, employs a number of concerns about its conduct. We are in 24 advisers providing advice to around 4,800 financially discussion with other EU member states to consider excluded clients each year. Since the 2006 launch, they further representations. have helped 16,535 clients (to the end of 2009). The UK and its EU partners have on a number of The project has a fixed budget which is primarily occasions raised concerns with the Government of provided from the Treasury’s Financial Inclusion Fund. Cambodia about treatment of opposition members There are no current plans to increase this although of the National Assembly. We have also urged the the Government’s July 2009 consumer White Paper opposition parties to engage constructively with the did provide the face-to-face debt advice project with political process. In August 2009 the UK as local EU an extra £300,000 which has allowed the Rural Project presidency carried out a demarche at the Cambodian to help an additional 50 clients during a particularly Ministry of Foreign Affairs to raise concerns about busy period. respect for freedom of expression, democracy and the rule of law. The subjects raised included a legal case Department for Communities and Local brought against an opposition MP for criminal Government: Faith Advisers defamation. Concerns about the prosecution of opposition MPs, and respect for democratic norms and freedom Question of expression more generally, were also raised by a Asked by Baroness Warsi number of member states on 1 December 2009 during the UN Human Rights Council’s Universal Periodic To ask Her Majesty’s Government what are Review of Cambodia. (a) the names, and (b) the terms of contract, of each of the recently appointed faith advisers in Communities and Local Government. [HL1627] Council Tax The Parliamentary Under-Secretary of State, Question Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Asked by Baroness Turner of Camden Luton): The new panel of faith advisers is comprised To ask Her Majesty’s Government why the name of the following individuals: of council tax benefit has not yet been changed to Rev Dr Alan Billings; council tax rebate; and why there must be consultation Dr Harriet Crabtree; before this change can take place. [HL2156] Marcia Dixon; Dr Doreen Finneron; The Parliamentary Under-Secretary of State, Jenny Kartupelis; Department for Communities and Local Government & Wakkas Khan; Department for Work and Pensions (Lord McKenzie of Alveena Malik; Luton): By taking swift action to include order making Mehri Niknam; powers in the Welfare Reform Act 2009 to change the Rosalind Preston; name of council tax benefit to council tax rebate we Dr Jasdev Singh Rai; have demonstrated that we are committed to making the Rt Rev Timothy Stevens; this change at the earliest opportunity. We believe that the change of name could have a positive impact on Arj an V ekaria; and take-up and help more pensioners with council tax Professor Paul Weller bills. The members of the panel advise my department in There are no plans for a formal consultation exercise. a voluntary, personal capacity. They are not employees and therefore do not hold contracts. However, they are We have been and will continue to work closely bound by the Civil Service Code in relation to their with local authorities and their IT suppliers to assess conduct while advising my department. the impact and costs of these changes and the fit with In addition, we have appointed a faith policy adviser other initiatives the department and local authorities on a 12-month fixed term contract in line with Civil have to deliver, so that renaming can be introduced at Service recruitment principles. the earliest opportunity. European Public Prosecutor Debt: Rural Areas Question Question Asked by Lord Pearson of Rannoch Asked by Lord Taylor of Holbeach To ask Her Majesty’s Government further to the Written Answer by Lord West of Spithead on To ask Her Majesty’s Government what plans 9 February (WA 111), what stage any proposal for a they have to increase the number of face-to-face European Public Prosecutor has reached; and whether debt advisers operating in rural areas; and what is they will refuse to opt into or veto it in due course. their target. [HL2187] [HL2191] WA 325 Written Answers[1 MARCH 2010] Written Answers WA 326

The Parliamentary Under-Secretary of State, Home materials, trade goods, and people into Gaza. The EU Office (Lord West of Spithead): There is no proposal Foreign Affairs Council made this clear in its statement at present to create a European Public Prosecutor of 8 December 2009. (EPP). The Government have consistently opposed the creation of an EPP. Gross Domestic Product Question Further Education: Vocational Training Asked by Lord Smith of Finsbury Question To ask Her Majesty’s Government what is their Asked by Lord Taylor of Warwick estimate of the proportion of gross domestic product in the United Kingdom represented by the creative To ask Her Majesty’s Government what is their industries. [HL2032] assessment of vocational teaching in the further education sector. [HL2256] Lord Davies of Oldham: According to the Creative Industries Economic Estimates bulletin released on The Parliamentary Under-Secretary of State, 10 February 2010, the creative industries (excluding Department for Business, Innovation and Skills (Lord crafts and design) accounted for 6.2 per cent of gross Young of Norwood Green): The quality of vocational value added in 2007, the latest year for which figures education and training in the further education (FE) are available. sector is improving significantly. For example, colleges achieved a qualification success rate of 81 per cent in Immigration 2007-08, against the target of 80 per cent that was set for 2011. Our apprenticeship programme also saw a Questions record successful achievement rate of 71 per cent in Asked by Lord Foulkes of Cumnock 2008-09—up from 37 per cent in 2004-05. The second To ask Her Majesty’s Government what assistance inspection cycle of 2005-09 by the Office for Standards they offer to European Union migrants who are in Education, Children’s Services and Skills (Ofsted) unemployed but have not paid 12 months of national shows that 65 per cent of colleges were judged to be insurance contributions. [HL1755] good or better. This is significantly better than the first cycle (2001-05) where less than 50 per cent of colleges To ask Her Majesty’s Government what assistance were judged to be good or better. they offer European Union migrants who are homeless We are also seeing increasing professionalism in the but have not paid 12 months of national insurance FE teaching workforce. Through a series of reforms, contributions. [HL1756] including requirements for teachers to hold appropriate The Parliamentary Under-Secretary of State, qualifications; work towards qualified teacher learning Department for Communities and Local Government & and skills status; and be professionally registered with Department for Work and Pensions (Lord McKenzie of the Institute for Learning (IfL), we are ensuring that Luton): European Union nationals who are unemployed both pedagogical and subject specialist skills are but seeking work may be eligible for income-based maintained and enhanced. All teaching staff must jobseeker’s allowance. They may also be eligible for undertake a minimum of 30 hours continuing professional housing benefit and council tax benefit in respect of development (CPD) each year and there is evidence any housing costs. that this minimum is generally being exceeded. The Business Interchange programme is providing European Union accession country nationals are opportunities for the workforce to update vocational subject to particular rules. They are eligible for income- skills through employer placements. There is early based jobseeker’s allowance but only if they have been evidence from Ofsted inspections of the benefits of working and registered on the worker registration these reforms to teaching practice and learners. scheme or worker authorisation scheme for at least 12 months, and are seeking work. They may also be eligible for housing benefit and council tax benefit in respect of any housing costs. Gaza Jobcentre Plus personalised services, such as personal Question advisers, are available to European Union nationals claiming benefits. European Union nationals who are Asked by Baroness Tonge not claiming benefit may access the universal Jobcentre To ask Her Majesty’s Government what action it Plus services for job seekers, such as job points and is taking with its European partners to persuade Jobseeker Direct. Israel to lift the blockade of Gaza. [HL2239] In addition, the Government provide funding to support local authorities and homelessness charities in helping homeless EU nationals to find work, or The Minister of State, Foreign and Commonwealth in some instances, to pay for travel back to their own Office (Baroness Kinnock of Holyhead): The UK and countries. its key partners, including the EU, continue to press Notes: the Israeli authorities to ease border restrictions and 1 People from Poland, Czech Republic, Hungary, Slovakia, permit the flow of humanitarian aid, reconstruction Slovenia, Lithuania, Latvia, Estonia, Bulgaria and Romania WA 327 Written Answers[LORDS] Written Answers WA 328

National Insurance The Minister of State, Department of Energy and Climate Change (Lord Hunt of Kings Heath): The Questions Road to 2010 White Paper (Cm7675) set out the Asked by Lord Newby Government’s commitment to establish a nuclear centre of excellence. Since publication of the White Paper the To ask Her Majesty’s Government what was the National Nuclear Centre of Excellence Steering Group, amount of employee national insurance contributions chaired by the Government’s chief scientific adviser, which were not due on benefits in kind which were has overseen development of the centre, including the subject to employers’ national insurance contributions appointment of an interim director and agreement on in the latest year for which figures are available. the business model to be adopted. The project has [HL1965] strong support from key government, industry and academic stakeholders including the Technology Strategy To ask Her Majesty’s Government how many Board, the National Nuclear Laboratory, the Nuclear employees benefited from employee national insurance Industries Association, UK research councils and contributions not being levied on certain benefits in universities. There has also been international interest kind which are subject to employers’ national insurance in the centre of excellence. contributions in the latest year for which figures are available. [HL1966] Asked by Lord Harris of Haringey To ask Her Majesty’s Government what other The Financial Services Secretary to the Treasury countries support the Global Threat Reduction (Lord Myners): HM Revenue and Customs estimates Programme; and what are its achievements so far. that 3.4 million individuals receive benefits in kind [HL2154] that are subjected to employers’ national insurance contributions but not employees’ national insurance. The Minister of State, Foreign and Commonwealth The estimated value (using current valuation methods) Office (Baroness Kinnock of Holyhead): The Global of employee national insurance contributions that are Threat Reduction Programme delivers the UK not levied on these benefits is £350 million per year. contribution to the Global Partnership against the spread of weapons and materials of mass destruction. The Global Partnership was established at the G8 Non-Proliferation Treaty Review summit in June 2002. The contributions made by Conference other states are set out in the G8 Global Partnership Working Group 2009 annual report, annex A consolidated Question data sheets (http://www.g8italia2009.it/static/G8_Allegato/ Asked by Lord Harris of Haringey GPWG-Report-2009-AnnexA-Consolidated-Data- Sheets,2.pdf) To ask Her Majesty’s Government what progress Asked by Lord Harris of Haringey is being made to achieve agreement on including a fourth pillar to the non-proliferation treaty to cover To ask Her Majesty’s Government how many nuclear security at the United Nations Review countries have now ratified the Amendment to the conference in May. [HL2152] Convention on the Physical Protection of Nuclear Material; and what changes are being implemented in the United Kingdom following ratification. The Minister of State, Foreign and Commonwealth [HL2155] Office (Baroness Kinnock of Holyhead): As the Government stated in the Road to 2010 (http:// www.cabinetoffice.gov.uk/reports/roadto2010.aspx), The Minister of State, Department of Energy and “nuclear security must be seen as the fourth pillar of Climate Change (Lord Hunt of Kings Heath): Thirty-four any nuclear regime, alongside non-proliferation, countries have ratified the Amendment to the Convention disarmament and the right to peaceful uses of nuclear on the Physical Protection of Nuclear Material (CPPNM). technology”. It is not our intention to reopen the There are 142 states which are parties to the CPPNM. non-proliferation treaty. We will use the Washington The amended convention will enter into force once it summit in April to press for more work, co-ordinated has been ratified by two-thirds of these parties. The globally, to secure a stronger international consensus amendment to the convention will strengthen its for making nuclear security an essential underpinning effectiveness by making it legally binding for states of the multilateral nuclear framework. parties to protect civil nuclear facilities and material in peaceful, domestic use, storage and transport. It also provides for expanded co-operation between parties Nuclear Disarmament on rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological Questions consequences of sabotage, and prevent and combat related offences. Asked by Lord Harris of Haringey The Criminal Justice and Immigration Act 2008 To ask Her Majesty’s Government what progress contains provisions, brought into force on 30 November is being made in establishing the United Kingdom’s 2009, which implement the amendment. The relevant nuclear centre of excellence. [HL2153] provisions are Section 75 and Schedule 17, which WA 329 Written Answers[1 MARCH 2010] Written Answers WA 330 created a number of new criminal offences—including The Minister of State, Foreign and Commonwealth extraterritorial offences. These new offences relate Office (Baroness Kinnock of Holyhead): We do not principally to acts directed at a nuclear facility, the comment on intelligence matters. misuse of nuclear material with intent to cause damage to the environment, and involvement outside the UK in the unlawful importing, exporting or shipping of nuclear material. It was also necessary to increase the Pensions penalty for existing UK offences relating to the import, Question export and shipment of nuclear material. Asked by Lord Taylor of Holbeach To ask Her Majesty’s Government whether the Pakistan percentage uplift to the basic state pension will be Questions applied to the extra portion earned by those pensioners who used the state pension deferral scheme (as set Asked by Lord Patten out in booklet SPD1 of April 2006). [HL2001] To ask Her Majesty’s Government whether they have made, or intend to make, representations to The Parliamentary Under-Secretary of State, the Government of Pakistan about the use of child Department for Communities and Local Government & labour under 14 years of age. [HL2149] Department for Work and Pensions (Lord McKenzie of Luton): The proposed 2.5 per cent increase in the rate The Minister of State, Foreign and Commonwealth of the basic state pension from April 2010 will not be Office (Baroness Kinnock of Holyhead): The UK is applied to the extra state pension payable to those committed to working with the Government of Pakistan recipients who have deferred their state pension. The to address the issue of child labour. Together with our Retail Prices Index showed that prices had fallen for EU partners, the UK regularly raises its concerns the 12 months ending in September 2009. Given this about the use of child labour and has lobbied the evidence the Government have decided to maintain Government of Pakistan to implement existing legislation the value of increments at 2009-10 rates. which protects children from such abuse. The most People with increments who deferred their state recent EU demarche on this issue was in December pension for at least one year since 2005 get a state 2009. The issue of child labour will also form part of pension that is 10.4 per cent higher than if they had the forthcoming EU-Pakistan Human Rights dialogue. not deferred. They will also benefit from the 2.5 per cent increase in the basic state pension announced at Asked by Lord Patten the Pre-Budget Report. We are writing to every individual To ask Her Majesty’s Government whether they in receipt of state pension with an uprating notification will make representations to the Government of which clearly states that, while basic state pension is Pakistan about the family of the housemaid Shazia increasing by 2.5 per cent, increments and additional Masih being able to obtain access to legal pension are not. representation. [HL2150] In addition, the increase in the basic state pension will be reflected in the value of increments being accrued by those who are currently deferring their Baroness Kinnock of Holyhead: The allegations state pension. surrounding the treatment and death of Shazia Masih are deeply disturbing. They highlight the challenges The booklet SPD1 State Pension Deferral—Your facing Pakistan in dealing with issues such as child Guide is being updated to reflect the change from labour, the treatment of religious minorities and access April 2010 and the other leaflets and website are being to education. Shazia Masih’s case is currently sub updated to reflect the Pre-Budget Report. judice in Pakistan, and so direct representations from the Foreign and Commonwealth Office are not possible. Nevertheless, we continue to raise our concerns on the Pensions: Taxation issue of child labour with the Government of Pakistan. These concerns were most recently raised alongside Questions our EU partners in the demarche of December 2009, Asked by Lord Newby and will form part of the forthcoming EU dialogue on Human Rights. To ask Her Majesty’s Government how many pensioners, and what percentage of all pensions, they estimate have received pension tax relief at the Passports higher rate of income tax, and subsequently in Question retirement pay income tax at the basic rate, in each of the past three years for which information is Asked by Lord Hylton available. [HL1749] To ask Her Majesty’s Government whether, following the alleged abuse of British passports in The Financial Services Secretary to the Treasury Dubai, they will suspend intelligence co-operation (Lord Myners): Around £18.9 billion of tax relief was with Israel. [HL2228] given on pension contributions across all taxpayers in WA 331 Written Answers[LORDS] Written Answers WA 332

2008-09. Within this total, an estimated two-thirds of The Secretary of State for Transport (Lord Adonis): the relief was on contributions made by higher rate Four trust ports in Northern Ireland are designated tax payers. under the Freedom of Information Act 2000. No However, HM Revenue and Customs does not have others in England or Wales are designated. sufficient data for enough years about individual taxpayers The Government announced last year the outcome to build up a history of rates at which pensions tax of a consultation on the designation of additional relief is given, compared with tax rates in retirement, public authorities and decided not to extend coverage necessary to provide the exact information requested. to harbour authorities beyond those already designated by virtue of being run by an existing public authority. Asked by Lord Newby The Government’s guidance to trust ports states To ask Her Majesty’s Government what is the that they should aim to comply with the spirit of the forecast revenue to the Exchequer of the restriction Act in responding to reasonable requests for information of pensions tax relief to 20 per cent in respect of from the public. taxpayers earning in excess of £150,000 in each year to 2015–16. [HL1785] Shipping: General Lighthouse Authorities Lord Myners: At Budget 2009 the Government Questions published the forecast revenue to the Exchequer from Asked by Lord Berkeley the measure “Pensions Tax: restrict tax relief to 20 per cent above £150,000” as follows: To ask Her Majesty’s Government how much Trinity House has spent on developing the e-LORAN 2009 0 navigation system; and whether, following the decision 2010 0 of the government of the United States to cancel 2011 £200 million their development work on that system, Trinity 2012 £3.1 billion House plans to cease work on it. [HL2108]

The above may be seen on table A1 of the Budget The Secretary of State for Transport (Lord Adonis): 2009 Report (see item 45 and footnote 4). The Research and Radionavigation Directorate of the There are no published forecasts for this measure General Lighthouse Authorities of the United Kingdom for yield beyond 2012-13. and Ireland have spent around £0.75 million to date developing the eLORAN navigation system in Cumbria. At Pre-Budget Report 2009 it was announced that The Department for Transport has provided 50 per the income definition would be updated to include the cent of the funding in the form of a grant. value of the benefit from the pension contributions from the employer subject to an income floor (excluding No decision has been made about the long-term employer contributions) at £130,000. The floor protects future of the UK eLORAN service. The US decision individuals with relatively low net incomes from being to cease funding the older LORAN-C service should caught by the measure, as well as providing certainty not affect the eLORAN service for northern Europe. for many individuals around whether they are affected, Asked by Lord Berkeley and reducing administrative burdens for schemes. The forecast revenue resulting from the change in To ask Her Majesty’s Government further to the income definition was shown as follows (£ million): Written Answer by Lord Adonis on 22 February (HL1979), why Trinity House and the Commissioners 2009-10 -10 for Irish Lights are not designated as public authorities 2010-11 -40 under the Freedom of Information Act 2000 when 2011-12 0 the Commissioners of Northern Lighthouses are so 2012-13 +500 designated. [HL2110]

Lord Adonis: Neither Trinity House nor the The above may be seen in table B4 of the Pre-Budget Commissioners of Irish Lights are designated as public Report 2009. authorities under the Freedom of Information Act There are no published forecasts for this measure 2000, because they are neither listed in Schedule 1 to for yield beyond 2012-13. the Act nor designated under Section 5. The list in Schedule 1 may be added to by order under Section 4(1), but to be added a body or office Ports: Public Authorities must satisfy two conditions: Question that the body or office is established by virtue of Her Majesty’s prerogative or by enactment or by Asked by Lord Berkeley subordinate legislation, or by certain Government To ask Her Majesty’s Government which trust or Welsh Assembly Government authorities; and ports are (a) designated, and (b) not designated, as in the case of a body, that it is wholly or partly public authorities under the Freedom of Information constituted by appointment made by certain Act 2000; and what criteria are used to make the Government or Welsh Assembly Government decision. [HL2111] authorities. WA 333 Written Answers[1 MARCH 2010] Written Answers WA 334

The Commissioners of Northern Lighthouses were in 2012-13. (These estimates are as shown in the added to the list in Schedule 1 as they met both the Budget 2009 Report: the estimates for 2010-11 and criteria above. This amendment was made by the 2011-12 are obtained by adding line 44 of table A1 of Freedom of Information (Additional Public Authorities) the report to line h of table A2 of the report, and the Order 2002 (SI 2002/2623) that came into force on estimate for 2012-13 is given in footnote 3 to Table A1.) November 2002. Trinity House and the Commissioners Updated estimates of the revenue expected to be of Irish Lights meet the first condition but not the collected from the 50 per cent rate of income tax will second, as no appointments to their boards are made be published at Budget 2010. These estimates will take by any government entity, nor by the Welsh Assembly into account latest information including updated Government authorities. economic assumptions. Under Section 5, any other body that is regarded as performing a public function can be designated a public authority for the purposes of the Act. However, Waterways: Canals the Commissioners of Irish Lights primarily operate Question in the territory of a separate sovereign nation (Ireland) and Trinity House has substantial charitable functions Asked by Lord Berkeley beyond its remit as a General Lighthouse Authority. To ask Her Majesty’s Government what is their However, the department expects both Trinity House strategy for encouraging more passenger and freight and the Commissioners of Irish Lights to comply with services on English canals. [HL2107] the spirit of the Act in responding to reasonable requests from the public for information relating to their functions as a General Lighthouse Authority The Secretary of State for Transport (Lord Adonis): under UK law. The Department for Environment, Food and Rural Affairs has recently published a consultation document, Waterways for Everyone, chapter 8 of which details Taxation: Income Tax the current government view of the role inland waterways Questions play in moving people and freight. The consultation, which closes on 26 March, asks some key questions Asked by Lord Oakeshott of Seagrove Bay about the future of inland waterways. I would urge all with an interest in this to respond to the consultation. To ask Her Majesty’s Government what is their estimate of the revenue that will be raised from the introduction of the 50 per cent rate of income tax Waterways: Transport on incomes over £150,000 in (a) 2010–11, (b) 2011–12, and (c) 2012–13. [HL1835] Question To ask Her Majesty’s Government what have Asked by Lord Berkeley been the effects of revisions to (a) gross domestic product forecasts, and (b) expected behavioural To ask Her Majesty’s Government whether they responses since Budget 2009 on the revenue forecast will follow the recommendation of the House of to be collected from the 50 per cent rate of income Commons Transport Committee to transfer tax on incomes over £150,000 in (a) 2010–11, responsibilities for the inland waterways to the (b) 2011–12, and (c) 2012–13. [HL1836] Department for Transport (Sixth Special Report, Session 2007–08). [HL2109] The Financial Services Secretary to the Treasury (Lord Myners): The estimated revenue to be raised The Secretary of State for Transport (Lord Adonis): from the introduction of the 50 per cent rate of The Government responded to this recommendation income tax on incomes over £150,000 is (a) £1.13 billion from the Transport Committee on 17 September 2008. in 2010-11, (b) £2.52 billion in 2011-12, and (c) £2.4 billion Their position has not changed.

Monday 1 March 2010

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. EU: Trade Ministers’ Informal Meeting...... 153 NHS: Foreign Nationals ...... 159

Food: Public Sector Procurement...... 154 Office of the Public Guardian: Key Performance Indicators ...... 160 Government: 30-year Rule ...... 154 Questions for Written Answer: Correction...... 161

Health: Autism ...... 155 Railways: Rolling Stock ...... 161

Iraq...... 157 Regional Development Agencies: Northwest ...... 162

Migration...... 158 Thames Tunnel ...... 163

Monday 1 March 2010

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Afghanistan ...... 317 Gross Domestic Product...... 326

Afghanistan: Dams...... 317 Immigration...... 326

Alcohol...... 318 National Insurance ...... 327

Armed Forces: Body Armour ...... 318 Non-Proliferation Treaty Review Conference ...... 327

Armed Forces: Medals...... 318 Nuclear Disarmament ...... 327

British Transport Police ...... 319 Pakistan...... 329

Buying Solutions...... 320 Passports ...... 329

Cambodia ...... 321 Pensions...... 330 Council Tax ...... 323 Pensions: Taxation...... 330 Debt: Rural Areas...... 323 Ports: Public Authorities...... 331 Department for Communities and Local Government: Faith Advisers...... 324 Shipping: General Lighthouse Authorities...... 332

European Public Prosecutor ...... 324 Taxation: Income Tax ...... 333

Further Education: Vocational Training ...... 325 Waterways: Canals...... 334

Gaza ...... 325 Waterways: Transport ...... 334 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL1053] ...... 317 [HL1785] ...... 331

[HL1627] ...... 324 [HL1835] ...... 333

[HL1749] ...... 330 [HL1836] ...... 333

[HL1755] ...... 326 [HL1965] ...... 327

[HL1756] ...... 326 [HL1966] ...... 327 Col. No. Col. No. [HL1982] ...... 318 [HL2149] ...... 329

[HL1989] ...... 321 [HL2150] ...... 329

[HL1991] ...... 322 [HL2152] ...... 327

[HL2001] ...... 330 [HL2153] ...... 327

[HL2013] ...... 317 [HL2154] ...... 328

[HL2032] ...... 326 [HL2155] ...... 328

[HL2041] ...... 318 [HL2156] ...... 323

[HL2044] ...... 318 [HL2187] ...... 323

[HL2045] ...... 318 [HL2191] ...... 324

[HL2082] ...... 320 [HL2228] ...... 329

[HL2107] ...... 334 [HL2239] ...... 325

[HL2108] ...... 332 [HL2256] ...... 325

[HL2109] ...... 334 [HL2326] ...... 319

[HL2110] ...... 332 [HL2327] ...... 320

[HL2111] ...... 331 [HL2328] ...... 320 Volume 717 Monday No. 47 1 March 2010

CONTENTS

Monday 1 March 2010 Questions Unemployment...... 1185 Finance: Debt...... 1187 Sure Start...... 1189 St David’s Day...... 1192 Third Parties (Rights against Insurers) Bill [HL] Third Reading ...... 1194 Personal Care at Home Bill Committee (2nd Day) ...... 1194 Mortgage Repossessions (Protection of Tenants Etc.) Bill First Reading...... 1217 Digital Economy Bill [HL] Report (1st Day) ...... 1217 Jobseeker’s Allowance (Skills Training Conditionality Pilot) Regulations 2010 Motion to Approve ...... 1262 Digital Economy Bill [HL] Report (1st Day) (Continued)...... 1279 Grand Committee Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010...... GC 317 Data Protection (Monetary Penalties) Order 2010...... GC 321 Personal Accounts Delivery Authority Winding Up Order 2010...... GC 326 National Employment Savings Trust Order 2010...... GC 343 Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010...... GC 343 European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Bosnia and Herzegovina) Order 2010...... GC 344 Health Protection (Local Authority Powers) Regulations 2010 ...... GC 348 Health Protection (Part 2A Orders) Regulations 2010...... GC 358 Health and Social Care Act 2008 (Consequential Amendments) Order 2010 Debated...... GC 358 Written Statements...... WS 153 Written Answers...... WA 317