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Lords Chamber

Volume 699: debated on Wednesday 12 March 2008

House of Lords

Wednesday, 12 March 2008.

The House met at three o'clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Rochester): the LORD SPEAKER on the Woolsack.

Afghanistan: Humanitarian Aid

asked Her Majesty’s Government:

Whether the central government in Afghanistan are the most cost-effective channel for humanitarian aid and reconstruction.

My Lords, the UK Government firmly believe that the Government of Afghanistan are the most cost-effective channel for reconstructive aid. The Peace Dividend Trust conducted a study and estimated the local economic impact of aid spent through government systems to be more than four times greater than aid spent through international contractors or even non-governmental organisations. The United Nations in Afghanistan has a mandate for humanitarian aid and at present we believe it is best placed to deliver this.

My Lords, I thank the noble Baroness for that Answer. Of course, I agree with her that the Afghan Government are the main channel of assistance but with $2 to 3 billion dollars flowing into this country every year, there is a limit to government capacity and to what they can absorb. Does she agree that donor co-ordination is essential at this time? Money is coming in unco-ordinated from many different sources. Does she further agree that we need to give more long-term funding to civil society organisations so that projects such as the national assistance programme, which has been very successful, can be secured and become an example for other projects?

My Lords, I agree very much with the noble Earl, who is a strong champion of NGOs. I assure him that while we will continue to help through the Afghan Government structures the 18,000 community development councils with building schools, health clinics and other things, we believe that we need to engage further with NGOs. He is absolutely right that they face huge constraints and we need to support them as much as we can. As regards the donor co-ordination that he raised, we believe that the UN has potentially a far stronger role to play in that.

My Lords, has the noble Baroness seen the latest Oxfam report entitled Community Peacebuilding in Afghanistan and, if so, does she agree with its opening statement that,

“existing measures to promote peacebuilding in Afghanistan are not succeeding”?

Given that there is a danger of losing hearts and minds as we lose the security battles there, what proposals do the Government now advocate to try to put this situation right and to bring peace and cohesion at local level?

My Lords, we do not beat about the bush on this. There is a huge problem. Afghanistan is still one of the poorest countries in the world. However, real progress is being made in parts of Afghanistan. Five million children are going to school, 2 million of whom are girls. The economy is growing and 82 per cent of people now live in districts where they have access to some basic healthcare; in 2001, the figure was 9 per cent. So some progress is being made. However, the noble Baroness is right that we need to have local schemes on the ground that really help people. Through the national solidarity programme there are 31,000 small-scale projects to improve clinics, schools, water supplies and electricity generation. Half a million families, comprising ordinary people such as shopkeepers, tailors, farmers and builders, are engaged in microfinance, which enables them to take up loans and start building small entrepreneurial organisations.

My Lords, what training are the Government giving, or are willing to give, to non-governmental organisations, voluntary groups and faith groups to make the delivery of their aid more cost-effective?

My Lords, the noble Lord is right. The UK Government, through DfID, the FCO and other government departments, make help available to NGOs. Part of that help will be training. We are directly helping Womankind, empowering women in Afghan society, which is very important. We are helping the Halo Trust, which looks at demining, another very important area. I will get back to the noble Lord on the religious aspect.

My Lords, what assistance is being given in rural communities, particularly to women? They seem to do the farm work, growing their own crops and tending animals. This was all very much destroyed by the Taliban. Rather than just grow poppies, they need to grow other things.

My Lords, the noble Countess is absolutely right. Empowering and supporting women is important. Hardly any girls were in school before 2001. Under the Taliban it was illegal to educate young women, so it is important to support women. Seventy per cent of those receiving small microfinance loans, on which we touched earlier, are women. That is very important and we will continue to support women.

My Lords, I welcome the noble Baroness’s answer to that question. Does she accept that aid which is not passed through government can have the effect of undermining the Afghan Government when we should be strengthening them? If there is a problem with capacity in the Afghan Government, surely the answer is not to change the way we give aid but to give more of it to strengthen governmental institutions.

My Lords, the noble Lord, who has tremendous experience and expertise in this area of building capacity in post-conflict areas, is absolutely right. The most effective way of getting money down to local people in the most need is through government and building up their capacity and, particularly in Afghanistan, their legitimacy, which has not been recognised over many decades. That is achieving value for money.

My Lords, what efforts are being made to engage with and empower the Pashtun communities in Helmand province and the south of Afghanistan?

My Lords, an enormous amount of activity is going on with communities in Helmand province. On the Pashtun community in particular, I will have to write to my noble friend.

My Lords, going back to the noble Earl’s question, exactly how much financial aid does the Treasury give to Afghanistan’s central government, either directly or through the UN, each year? What percentage of it is from the international aid budget?

My Lords, the aid that goes directly through the Afghan Government from DfID is 80 per cent of £345 million. We are a very big contributor to Afghanistan.

House of Lords: Reform

asked Her Majesty’s Government:

Whether they will publish the minutes of proceedings of the cross-party Front-Bench working group on House of Lords reform.

My Lords, the Government have no plans to do so. We want the group to be able to debate options frankly so that implications can be worked through fully and consensus reached wherever possible. The group has discussed possible electoral systems and whether any changes should be made to the powers of a reformed second Chamber. It is currently looking at issues around a transitional House, as well as a range of other matters, including remuneration and disqualification. The outcome of the group’s discussion will be reflected in a White Paper, which the Government will publish before the Summer Recess.

My Lords, I thank my noble friend for that reply, which I am afraid was as predictable as it was disappointing. Does he not accept that a working group that, with the exception of the noble Baroness, Lady D’Souza, consists entirely of members who believe in a fully or largely elected House of Lords can in no way reflect the opinion of those of us on these Benches or the Benches opposite who believe that to move to a wholly elected or largely elected House would destroy the primacy of the House of Commons and damage the reputation and effectiveness of this House? Does he not see that to deny us the opportunity to read the minutes of the proceedings of the cross-party group adds immensely to the suspicion that the Government have now abandoned his predecessors’ undertaking that the next stage of reform would be based on consensus and that this House would be part of that consensus?

My Lords, I am sorry that my noble friend did not like my Answer. The cross-party group was re-established following the votes in both Houses. My noble friend has referred to worries about the primacy of the Commons if this House were wholly or mostly elected. The expression of the Commons vote, which was to support an 80 per cent or 100 per cent elected House, is the very foundation of the work that we are now taking forward.

My Lords, encouraged by the Leader of the House to believe that the cross-party group would welcome submissions from formed committees in this House, may I ask whether those submissions will be taken into serious consideration before the drafting of the group’s final report is undertaken?

My Lords, I am sure that the members of the cross-party working group would be delighted to receive submissions, but I have to tell the noble Lord that the work of the group, which will inform the Government’s production of a White Paper, is predicated on the votes in the Commons last year.

My Lords, I assure my noble friend that, although his Answer may have been disappointing to the noble Lord, Lord Faulkner, to a number of us on this side of the House it was predictable but totally accurate. Is my noble friend also aware that it would be quite impossible for the cross-party group to do its job properly if minutes were to be published, dissected, analysed and brought back to the Floor of this House and perhaps the other place? That is a recipe for total inaction.

My Lords, as ever on the question of Lords reform, I find my noble friend’s comments wholly believable.

My Lords, this is a self-regulating House, but it has to regulate itself, so somebody has to give way or we have to intervene. I suggest that we hear from the noble Baroness.

My Lords, the Minister said that the results of the Division in the Commons would be reflected in the draft report. Will there also be in the draft report or the White Paper comment on the votes that took place in this House?

My Lords, I cannot anticipate what will be in the White Paper because that is the subject of discussions in the cross-party group and a decision for the Government to make. Of course, we are all aware of the votes in your Lordships’ House on Lords reform. When it comes to a division of opinion between the Commons and the Lords, as noble Lords constantly remind me, the primacy of the Commons must hold sway.

My Lords, can the noble Lord clarify what will happen when we get the White Paper, which will be from the Government, of course, and not from the cross-party group? What is intended on the draft clauses that have been promised? Will they be the subject of pre-legislative scrutiny? Do the Government now accept the merits of consideration by a Joint Committee so that there is not so much misunderstanding in this House about the other House and vice versa?

My Lords, it is very important that once the White Paper is produced there should be—and will be—parliamentary scrutiny. The Government are attracted by the idea of producing draft clauses and I am sure that, if a joint Select Committee were to be established, Ministers would be very pleased to co-operate and appear before it.

My Lords, is my noble friend wise to rely so comprehensively on the snapshot vote in the House of Commons? He is presumably aware that a majority of Labour MPs voted against 80 per cent election and that, even more surprisingly, a majority of Conservative MPs voted against it. Unless he feels that the Liberal Democrats will form the next Government—

My Lords, I am not a betting man, even in Cheltenham week, but I think that either Labour Members or Conservative Members will form the next Government, in which case how likely is it that a wholly elected House would meet with approval on the government Benches in the next Parliament?

My Lords, I do not deal in fantasy. On the question that my noble friend raises, these could not be described as snapshot votes. The votes followed extensive debate after a comprehensive paper was produced, again from the joint group. As for what will happen after the next election, the importance of this group’s work is the effort made to achieve as much consensus as possible across the party-political spectrum, so that there is the consensus to take forward legislation after the next election.

Police: Flanagan Review

asked Her Majesty’s Government:

What steps they intend to take to place the recommendations made by Sir Ronnie Flanagan in his final report, The Review of Policing, into the wider context of policing.

My Lords, Her Majesty’s Government are grateful to Sir Ronnie Flanagan for his thoughtful and incisive report and will respond to his recommendations shortly. The wider context of policing was addressed by Sir Ronnie Flanagan himself in the introductory chapters of his interim and final reports. The Government will further address this matter in our forthcoming Green Paper on policing.

My Lords, in thanking the Minister for that short reply, I draw the attention of this House to the fact that the Flanagan report concludes unequivocally that police numbers must fall in this country in the future. Will the Minister comment on this quite extraordinary statement, totally at odds with pleas from all sides that police numbers in England and Wales should be increased? The ratio of police to public in England and Wales is among the lowest of any developed country. There are 264 police officers to 100,000 population in England and Wales, but 387 in France, 457 in New York and 467 in Chicago. Does the Minister anticipate that the police task here will diminish in the coming years?

My Lords, police officer numbers are at an historic high, at about 140,000. We have 16,000 PCSOs, 74,000 other staff and 14,000 special constables. To be precise, Sir Ronnie Flanagan referred to an unhelpful party political debate around police officer numbers as the sole measure of police success. He said that the current numbers would be unsustainable in coming years when he looked at resources. Since then, he has publicly said that he would expect any fall to be very small. As I say, there are more than 140,000 police officers now compared with 127,000 in 1997.

My Lords, in the chapter on developing police workforce reform, Sir Ronnie states,

“Meeting these changing demands will require strong and effective leadership from all those involved in policing—from the Home Secretary and chief officers, right through to sergeants and individual officers”.

What do the Government intend to do about addressing this vital question of leadership?

My Lords, the noble Baroness raises an important point. We will be looking at this in our detailed response to the report. We are making an initial response and hope to produce a detailed response within a month.

My Lords, as recommended by Sir Ronnie, should the recently established Risk and Regulation Advisory Council begin a national debate on enhancing professional discretion and managing risk? This is in the context, as I understand it, of the police often having to avoid incidents because of health and safety. Has that consultation started? If not, when will it start and how long will it last?

My Lords, I do not know the exact detail and will come back to the noble Baroness in writing. We are looking closely at all the points that have been raised on increase of resources, the myriad changes of context in which policing operates and some of the other detail, but I do not know the precise answer to the noble Baroness’s point.

My Lords, given the need identified in Sir Ronnie Flanagan's review, in the Government's view, do enough police forces have a policy and a pay structure to attract people with relevant qualifications and experience to apply to join the police force at a mature age and provide the extra expertise that is clearly identified in the report?

My Lords, we have that structure in place. In fact, we have historically high numbers of people wanting to join the Police Service and we are getting extremely high-quality people in the service.

As an aside, I am sure that the whole House would agree that we feel the great tragedy of the loss of Chief Constable Mike Todd, a man whom I met twice and was most impressed by, with a very distinguished career. It is very unfortunate that this has happened—clearly, there has to be a post-mortem. He was typical of the very high quality of people we have in the Police Service.

On pay in general, the Home Secretary has written to the Police Negotiating Board and wants to discuss the possibility of a multilayer deal looking forward with the Police Arbitration Tribunal, post the 2007 award.

My Lords, we associate ourselves with the Minister's remark about the chief constable of Manchester.

Further to the Question from the noble Lord, Lord Dear, Sir Ronnie Flanagan talks about not only the unsustainable level of the current police forces but the need for workforce reform. Has the Minister considered that aspect of Sir Ronnie Flanagan’s report? What strategy do the Government have in mind to address that problem?

My Lords, I fear that I have to say again that that is part of the detailed work being done at the moment. We will coming back with a response within a month, so those issues will be covered, but I cannot talk about them at the moment.

My Lords, my noble friend mentioned PCSOs. Are PCSOs police officers? Do they hold warrants? The same applies to Highways Agency traffic officers. They are not police officers. They do not hold warrants.

My Lords, my noble friend raises a useful point in some ways, but PCSOs have been extremely valuable. They have done a remarkably good job. We are finding in local areas that people want more of them around. They are extremely valuable even though, clearly, they do not have all the powers of a proper police constable.

In which case, my Lords, surely they cannot be counted in statistics as if they were constables.

My Lords, I do not agree, because they are helping to do what is the responsibility of the police: protecting the public from anti-social behaviour right up to levels of terrorism. They help us in all those areas, so they are valuable.

Colombia: Terrorism

asked Her Majesty’s Government:

What is their response to the recent terrorist activity on the Colombia-Ecuador border.

My Lords, we have expressed our concern about the tensions along Colombia's borders. In discussions with representatives of the Governments concerned, we have encouraged all parties to show restraint and pursue a political solution. We therefore welcome the outcome of the Rio Group summit on 7 March, where the Governments of Colombia, Ecuador and Venezuela, together with other members of the Rio Group, made a commitment to peaceful co-operation in the region and to tackling the ongoing activity and influence of illegal terrorist groups, which was at the root of this crisis.

My Lords, I thank the noble Lord for that Answer, not only because is it very helpful but because it is good news that he has just brought us. However, is he aware that captured computers from the recent military operation revealed that some financial assistance is going to the FARC from the Government of Venezuela? Does he not think that that is rather unsatisfactory?

My Lords, we are aware of those allegations. Clearly, it would be a matter of concern if any country were supporting a terrorist organisation, wherever that was and whatever form that support took. We therefore found it encouraging that the Rio Group members reiterated on 7 March their,

“commitment to fighting the security threats to all states from the activities undertaken by irregular groups and criminal organisations, in particular those with ties to drug trafficking activities”.

My Lords, has there been any application by the Colombian Government to Her Majesty’s Government for the extradition of the Irish republican elements who were giving assistance to FARC?

To my knowledge, my Lords, no. If I am wrong about that I will let the noble Lord know at once.

My Lords, one of the problems throughout countries in that region has historically been impunity from the law. The Government have made bilateral efforts with some countries to strengthen the capacity of the rule of law. What is the Government’s reaction to the rewarding of one FARC member for executing another, which was announced last night?

My Lords, the measures taken by states to combat terrorism must be legal, proportionate and justifiable. We in the UK abide by our commitments under international law and we expect all countries to comply with their international legal obligations. It is vital for all states to provide security against atrocities carried out by terrorists, while, of course, respecting the rule of law.

My Lords, some of the Irish republican persons who were found guilty in Colombia of assisting FARC and who then absconded to the Republic of Ireland are walking openly around the Republic of Ireland. Why are Her Majesty’s Government not pursuing that matter?

My Lords, if I may say so, that is rather wide of the mark in relation to the recent crisis in this part of South America. I understand precisely why the noble Lord asked the question. I do not have an answer for him today but I will write to him.

My Lords, when I was in Colombia some years ago, I saw the terrible damage, torture and misery inflicted on peasants and farmers because of the cocaine habit in the West. Would the Minister consider setting up some sort of exchange scheme, whereby celebrities and City types who think that it is so fashionable and fun to snort cocaine could go there, take the farmers’ place, and grow the stuff themselves?

My Lords, I have a great deal of sympathy with what the noble Baroness has suggested, although it is not the policy of Her Majesty’s Government. She is quite right: much of the cocaine on our streets and perhaps in our drawing rooms comes from Colombia.

My Lords, not, of course, Members of this House. The noble Baroness knows what I mean.

Much of that cocaine passes through the hands of illegal terrorists and paramilitaries. Cocaine is also a significant driver of regional instability, corruption and poverty, as the noble Baroness pointed out. It is important that the Government continue to work with Colombian authorities, which we do, to fight drug trafficking.

Consolidated Fund (Appropriation) Bill

Brought from the Commons, certified by the Speaker as a money Bill; and read a first time.

European Union (Amendment) Bill

Brought from the Commons; read a first time and ordered to be printed.

Regulatory Enforcement and Sanctions Bill [HL]

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, that the amendments for the Report stage be marshalled and considered in the following order:

Clause 1

Schedule 1

Clause 2

Schedule 2

Clauses 3 and 4

Schedule 3

Clauses 5 to 27

Schedule 4

Clauses 28 to 36

Schedules 5 and 6

Clauses 37 to 61

Schedule 7

Clauses 62 to 75.—(Lord Jones of Birmingham.)

On Question, Motion agreed to.

Criminal Justice and Immigration Bill

My Lords, on behalf of my noble friend Lord Hunt of Kings Heath, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 191 [Disclosure of information about convictions etc of child sex offenders to members of the public]:

175: Clause 191, page 134, line 34, leave out “presumption” and insert “discretion”

The noble Lord said: I am pleased to see that the Bill retains the interest of your Lordships, even though we are in the eighth day of Committee. We move to the part of the Bill—Clause 191—that relates to the disclosure of information about convictions of child sex offenders to members of the public. Noble Lords will recall that as long ago as 2000 there was a campaign to introduce Sarah’s law, as it was called, into this country to mirror, or perhaps to follow, Megan’s law in the United States.

It is interesting that the report commissioned in 2006 by the NSPCC on the impact of Megan’s law in the United States found that there was no single version of Megan’s law but that there were many variations of community notification. The laws were given legitimacy by assumptions about the nature of sexual offending, but there was little empirical evidence that community notification had had a positive effect on preventing reoffending and protecting children.

It was found that the level of registration of sex offenders in the United States had fallen since the implementation of Megan’s law. In this country, the level of notification of sex offenders under the Act is 97 per cent. In the United States, only 80 per cent of sex offenders comply with registration requirements and, in some areas, since Megan’s law was introduced the registration is as low as 50 per cent. Furthermore, in the United States, efforts to locate offenders again after they have gone missing are limited and ineffectual. That gives rise to the concern that we share on these Benches that compliance with the registration requirements in England and Wales will also fall if offenders are constantly moving and hiding themselves to avoid their details being accessed.

There are other problems. In this country, 80 per cent of children subjected to sexual assault will know their attacker, and in a high proportion of the cases it is a family member or a friend. Wider disclosure of the details of sex offenders would, we argue, lead to the identification of a previous victim where that victim is their child. There is also evidence that victims of intra-familial abuse may be deterred from reporting crimes because of fears related to community notification.

In this country, the Sex Offenders Act 1997 created notification obligations for persons convicted of certain offences to inform the police of their address and their changes of address. The current position is that there is multi-agency involvement in sex offender notification concerning offenders who present a risk to children. If information is received by the agencies concerned that an offender represents a significant risk, for example, to a specific school, further notification may take place, but it is a matter for discretion. Following a risk assessment review, it may currently be felt necessary to inform the head teacher of the risk. Such disclosure takes place only with the authority of the local multi-agency public protection panel. That is the current system.

Clause 191 introduces measures concerning the disclosure of information that create a presumption of disclosure about the conviction of sex offenders to members of the public. The notification scheme clearly goes far beyond that envisaged and created by the Sex Offenders Act 1997. The responsible authority under the clause must consider whether to disclose information about the conviction of sex offenders to particular members of the public. As I have said, there is a presumption of disclosure: if the responsible authority has reasonable cause to believe that the sex offender poses a risk, disclosure is necessary to protect a child or children from harm. The presumption exists whether the person to whom the information is conveyed asks for it or not. It is also subject to conditions, which are not spelt out in the Bill. It may be a condition that you would not be able to tell your neighbour. It would be a very odd way of protecting children if information is passed to person A in order to protect the children of person A but they are prevented from passing it on to person B next door in order to protect their children. The conditions potentially impose at least a moral responsibility on the person to whom the information is disclosed to convey that information to others.

In any event, how are these conditions imposed on disclosure to be enforced? Let us suppose that a person who receives the information breaks the conditions under which it has been given. Does that create some form of criminal offence, civil liability, or what? It is not at all clear. It may be that the Government envisage passing on to a parent details of a sex offender’s convictions, saying, “You may not pass it on to anybody else, act on it or do anything against the individual with the convictions. We are just telling you”. That does not seem to be a very useful provision.

We propose in our amendments to replace the presumption of disclosure with a discretion on the part of the authority concerned to pass on information. We also propose that the presumption in new Section 327A(4) as inserted by Clause 191 should not arise,

“whether or not the person to whom the information is disclosed requests the disclosure”.

If there is to be disclosure to an individual, the very first condition should be that that person seeks it because they have fears for their child in relation to a person. Those are the proposals in our amendments. I beg to move.

I very much support the amendment. This is one of those areas where I think many of us feel that far more time and prelegislative scrutiny should have been given because the issue brings worry and concern. As an old—and I mean old in every sense of the word—juvenile court chairman of many years, one went through the whole procedure of sending children off to approved schools. In those days, we did not know that those schools were natural gathering ground for paedophiles. It is therefore very much at the back of one’s mind.

It is particularly important that the amendments are supported by both the NSPCC and Barnardo’s. That in itself gives a pretty clear indication of everyone’s concern about these areas, which are very troubling indeed. I urge the Government to think carefully about the wording and any disposition to change it. However, I would much rather urge them, as they have done on other occasions, to take back this bit of the Bill and to give it the consideration that it should be given.

Two things struck me about what the noble Lord, Lord Thomas, said. One was: what happens if someone who is told not to tell consequently does tell and there is nothing that one can do about it? The other is the fact that the cat is out of the bag. We must be very careful about the lynch mob in these circumstances. We saw this in Portsmouth, and when a lot of people gathered because they got paedophilia muddled up with—

Paediatrics—I thank your Lordships for helping me with my oratory. One must be very careful about those two things.

Furthermore, as the noble Lord, Lord Thomas of Gresford, said, the vast majority of this unattractive behaviour happens in families. The noble Lord made a very strong case for a problem which the Government seem to have handled quite well up to now, so why should one change it, except in the way in which the noble Lord has urged?

Although the noble Lord, Lord Thomas of Gresford, made an interesting and pretty convincing argument, at the risk of nit-picking I suggest that the grammar of his amendment—substituting “discretion” for “presumption”—is not quite right. I realise that he does not intend to press the amendment to a Division today, but I suppose he will return to it the next time around if he does not get a satisfactory answer today. When he does, perhaps it might be altered slightly.

A number of amendments have been tabled to Clause 191 both by the Government and by the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble Baroness, Lady Falkner. I venture to suggest that we share the same overall aims for the clause. We wish to ensure the effective protection of children from sex offenders while wishing to guard against the perils of inappropriate and unduly widespread disclosure, for the reasons that have been given by a number of Members of the Committee. Those aims are shared by the organisations and agencies which we consulted during the review of the protection of children from sex offenders, the conclusions of which, including the recommendation to introduce a statutory duty to consider disclosure, were welcomed by those organisations.

In direct answer to the noble Lord, Lord Thomas of Gresford, this is not Megan’s law. It builds on the existing practice of controlled disclosure, and we took account of the NSPCC representations during the review and the passage of the Bill. It might be useful to give the example of an offender who is convicted of sexual assault against a child and becomes subject to the notification of requirements imposed by the Sexual Offences Act. That would place him under the management of MAPPA. The offender meets a new partner—a single mother with young children—and subsequently moves in with her. Under the notification requirements, he is obliged to inform the police of his new address, which he does. This being brought to the police’s attention triggers a risk assessment as part of the MAPPA process. It is identified that the offender poses a risk to his partner’s children who also reside at his new address and under the new duty imposed by this Bill, the MAPPA responsible authority is under a duty to consider disclosure. MAPPA has identified that there is a risk to children and concludes that disclosing information on this risk to his new partner is necessary to protect these children from serious harm. Disclosure is made in accordance with all the relevant principles to ensure that this is done sensitively and in a planned and appropriately managed way, taking account of all the risks, including to the offender. I put that in just to give a flavour of the way this would apply.

We acknowledge that there are concerns about the nature of this clause, motivated particularly by the fear that it may lead to disclosure of information in inappropriate circumstances or to an unnecessarily wide extent. I wish to emphasise that this is not our aim. Our aims, as we made clear in the review, are to extend the use of controlled disclosure where it is an appropriate and necessary response to a risk of serious harm to a child or children to ensure that there is consistency—consistency is important—in the practice of disclosure and to ensure that the decision to disclose results from a formalised and auditable process. When these provisions were debated in another place, there were some concerns about the liability imposed on MAPPA authorities, for example in circumstances where they decided against disclosure. Consequently, I think it would be helpful for me to make it clear that the amendments to the Criminal Justice Act 2003, which Clause 191 will introduce, are not intended to impose liability on the MAPPA authorities for breach of their statutory duty to consider disclosure in accordance with these provisions or for a failure to disclose, despite the presumption applying.

The amendments we have tabled maintain our overall aim but address concerns that aspects of this clause, as drafted, could lead to inappropriate disclosure. The amendments tabled by the noble Lord and the noble Baroness appear to be motivated by similar concerns but would undermine the need for a consistent approach to the practice of controlled disclosure and would also remove safeguards against inappropriate disclosure. Amendment No. 175 seeks to provide the Multi Agency Public Protection Arrangements authorities, commonly known as MAPPA, with the discretion to disclose information about convictions of child sex offenders to members of the public. These authorities already have this discretion and use it where appropriate in accordance with the statutory guidance. This amendment therefore would not provide further assistance to the MAPPA authorities in determining the circumstances in which information should be disclosed. Providing such assistance with the aim of ensuring consistency is the purpose of Clause 191.

Amendment No. 176 seeks to remove the whole of subsection (4) of new Section 327A of the 2003 Act. Government Amendment No. 176A will remove subsection (4)(b) but we wish to retain subsection (4)(a), which indicates that the presumption to disclose arises whether or not the person to whom the information is disclosed requests the disclosure. It is important that the Bill makes it clear that the presumption to disclose does not depend on a request being made by a member of the public and that this clause relates to the proactive consideration of disclosure by MAPPA authorities while they are discharging their general duty to co-operate in the management of child sex offenders. I wish to emphasise at this stage that Clause 191 does not grant any new right to the public to receive information automatically on request.

With regard to government Amendment No. 176A, the MAPPA responsible authorities already disclose to those who are not related to the child at risk, such as head teachers, landlords and leisure centre managers and it is intended that the presumption to disclosure should apply to any member of the public where disclosure to them is necessary to protect the child, whatever their connection to the child. However, as the paragraph was only intended to clarify the position rather than encourage the authorities to introduce significantly more widespread disclosure than occurs currently, we are prepared to remove this paragraph from the Bill.

Amendment No. 177 would remove subsection (5)(b) of new Section 327A which provides that any MAPPA responsible authority, when making a disclosure, will be able to place conditions on the recipient to prevent that information being disclosed to others. Such conditions may well be necessary and the ability to impose these conditions will be an important safeguard against the inappropriate dissemination of information. It is necessary therefore to retain this aspect of the clause. If there is a breach of conditions in keeping information confidential, there is no specific penalty—the noble Lord, Lord Thomas of Gresford, raised this—provided in the clause, but an action can be brought for breach of confidence in the civil courts. This may result in an injunction being made. Existing communal penalties could also be available if it was felt that that was appropriate. This is mainly to put a block on people so that they understand that they should not just talk loosely about this. That is the prime reasoning behind it.

We acknowledge concerns that the wording of the presumption as currently drafted could lead to unduly widespread disclosure, which was never the Government’s intention. However, we have tabled government Amendments Nos. 175A and 175B in order to address these concerns and to make clearer the circumstances in which the presumption will apply. Our amendments have been developed in consultation with the NSPCC and Barnardo’s, and address concerns that they have raised with us during the passage of the Bill. The NSPCC and Barnardo’s support these amendments and we are grateful for their contribution.

If government Amendments Nos. 175A and 175B are agreed by the Committee the presumption to disclose would arise only if a child sex offender managed by a MAPPA responsible authority in a particular area poses a risk in that or any other area of causing serious harm to any particular child or children, or to children of any particular description, and the disclosure of information is necessary to protect the particular child or children, or the children of that description. This is a reasonable basis for such a presumption and will help to ensure that the MAPPA authorities have a clearer indication of the circumstances in which disclosure should be made.

Government Amendment No. 177A is a technical amendment to Schedule 34, which inserts new Schedule 34A into the Criminal Justice Act 2003. It will ensure that a service conviction for an attempted or other secondary or inchoate child sexual offence is relevant for the purposes of defining a child sex offender, and determining what convictions should be disclosed under the presumption.

I reiterate that the NSPCC and Barnardo’s have welcomed our amendments and they oppose Amendment No. 177. I hope that the noble Lord, the noble Baroness and other speakers will consider that our amendments address their concerns. We are not able to amend the Bill precisely as they would like, because to do so would undermine key aspects of the intention of this clause, but we believe that our amendments move in the same direction as they would wish. I hope that our amendments will persuade the noble Lord to withdraw his amendment.

As written, new Section 327A(1) of the Criminal Justice Act 2003, under Clause 191 of the Bill, states that the responsible authority must,

“consider whether to disclose information … to a particular member of the public”.

As written, new Section 327A(2) has this presumption in it. Even if that is altered in language, something along those lines will be there. I thought that I understood the Minister to say that there is no sanction for enforcing this, while under the old law mandamus a local authority could be compelled to carry out its duty. Is he saying that there is no way that any member of the public could enforce this provision and is there no criminal sanction? Is it an unenforceable “must”?

No criminal proceedings or anything can be taken against a MAPPA authority if it does not fulfil these statutory obligations. I shall have to check, but I am sure that one can look at judicial review with those sorts of authorities, but there is no other statutory punishment.

I wish to ask a question that is not intended to be a trick question and may turn out to be a silly one. What are the circumstances in which a presumption may be rebutted? I can understand a requirement that particular action should be taken, but where one comes across a presumption that it shall, one expects to see an explanation as to how that presumption may be rebutted. Perhaps that can be answered at some later time, if not today.

The noble and learned Lord raises an interesting point, to which I do not have an exact answer. I would like to come back in writing on that point. As I understand him, the noble and learned Lord is asking if this relates to MAPPA and whether it should rebut something, but I am not quite clear about his question.

Wherever a presumption is targeted, one looks to see whether there is a means by which that can be rebutted. One assumes that there can be, but at the moment—and I dare say that this is my fault—I do not see where that arises or how that is explained.

I think that the noble and learned Lord is probably absolutely right and that it probably is done on a case-by-case basis, but if I may I will get back to him in writing on that.

I want to clarify the Minister’s remarks on Amendment No. 177. As I understood him, he said in response to our concerns about conditions that would be imposed on those people who were given the information that there would be no sanctions against those who breached the conditions on non-disclosure. Did the Minister intend to say that?

Perhaps I did not really make myself clear to the noble Baroness. If there is a breach of the conditions to keep information confidential the clause provides no specific penalty—but action can be brought for breach of confidence in the civil court, which may result in an injunction being made. Existing communal penalties could also be available. That will have to be looked at on a case-by-case basis, but primarily this amendment is to reinforce the realisation on these people that this is extremely important. We do not want this to go wider, but in those areas there could be some penalty on just that basis.

I am grateful to the Minister for his considered reply. We are also very grateful for the way in which the Government have moved from the wide provision originally set out in Clause 191 after consulting with the organisations concerned about children. However, we have not quite got to the end of the matter at all. I take on board the criticism of the noble Lord, Lord Neill of Bladen, on the use of the word “must”; it might be better to say that the local authority or responsible authority has a duty to consider whether to disclose information. That might make the responsibility a little clearer.

As for subsection (2) of new Section 327A, the noble and learned Lord, Lord Mayhew, rightly raised the difficulties in using the word “presumption”; other criticisms have been made of my English. Drafting on my knee, I wonder whether it might not be better to say that in a case mentioned in subsection (3), a responsible authority may, in its discretion, disclose information in its possession about the relevant previous convictions of the offender. I see that the noble Lord, Lord Monson, agrees with that quick drafting in order to accord with the rules of the English language.

On enforcing conditions against an individual, it is not attractive to propose that the way to do that is to take them to court for breach of confidence and to obtain an injunction against them. For a person to be involved in court proceedings of that nature seems a sledgehammer approach.

Would the very fact of going to court not also publicise the damage that has already been done? I think that we are concerned that that damage will cause the demonstrations and all those things with which we associate Megan’s law.

That is a valid point, because only in very exceptional circumstances will the court sit in camera to consider any issue. I do not know whether it would be possible, in circumstances like these, to use initials or something that might conceal the identity of people concerned.

Obviously, this issue requires further thought on all sides. For the moment, I will withdraw my amendment; I express my gratitude for some movement from the Government. It would be useful to have further conversations with Ministers to get a little nearer to a satisfactory result. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

175A: Clause 191, page 135, line 2, leave out “children generally or any child” and insert “any particular child or children or to children of any particular description”

175B: Clause 191, page 135, line 6, leave out “children generally or any child” and insert “the particular child or children, or the children of that description,”

On Question, amendments agreed to.

[Amendment No. 176 not moved.]

176A: Clause 191, page 135, line 11, leave out from “disclosure” to end of line 14

On Question, amendment agreed to.

[Amendment No. 177 not moved.]

177ZA: Clause 191, page 135, line 22, at end insert—

“( ) Where the responsible authority makes a disclosure about any child or young person below the age of 18 under this section—

(a) the case must be referred to the local children’s safeguarding board and the decision to disclose taken in conjunction with them, and(b) a management plan must be drawn up to include a risk assessment of the consequences of disclosure for the child and steps to address these.”

The noble Baroness said: I would like to acknowledge that the amendment is supported by the NSPCC, Barnardo’s, the Lucy Faithfull Foundation and the NCH. It expresses our view that there are inadequate safeguards for those children who commit sexual offences against other children. Our concern is based on the inappropriateness of using adult-focused legislation that, in terms of disclosure, treats young people as adult sex offenders.

In our early debates on Part 1, which concerned the bulk of measures regarding young people, many noble Lords spoke about the appropriateness, or otherwise, of recognising that young people, by virtue of their youth, should be treated differently. Our desire to see a difference in treatment between adults and young people is not simply based on age alone. As we know, large numbers of young people who encounter the criminal justice system come to it from backgrounds of great disadvantage, including factors such as learning difficulties, behavioural problems, domestic violence, sexual abuse or essentially having the misfortune to come from a dysfunctional family.

In the case of sex offenders, even if such factors do not figure as mitigating ones in their defence, their moral and emotional development may be such that they do not, or cannot, rationalise about their wrongdoing and the harm that they may have inflicted on the other child or young person. Therefore, they may be extremely vulnerable and the interventions employed by the state in regard to their crime require a different approach from that needed for adults.

I turn to some key factors about young people who display sexually harmful behaviour. First, there are concerns about the scale of the problem. According to the charities which support the amendment—and I have mentioned them—we do not know how many children display sexually harmful behaviour. It is likely to be underreported by parents, carers and professionals working for children because a great deal of harm can come from simply suspecting a young person of something that they may not be able to validate or prove. Moreover, there is no central method of data collection on young people who sexually harm. Research from criminal justice statistics shows that between 25 per cent and 40 per cent of all alleged sexual abuse involves young perpetrators. I understand that approximately one-third of sexual offenders in contact with the criminal justice system each year are adolescents.

We have the profile of young people who display sexually harmful behaviour, and we know that in terms of this profile a significant proportion of service users across programmes are described as having a learning disability. I have already touched on that point, but it is worrying that we do not know what the parameters of the problem are. We find that the majority of these children and young people have been or are being sexually, physically and/or emotionally abused themselves.

Furthermore—and this is particularly pertinent to the clause under review— consistent findings indicate that the majority of children who display sexually harmful behaviour do not go on to commit sexual offences as adults. In other words, where there are interventions in the aftermath of committing these offences, there is every hope that the behaviour might be changed. In fact, the success rate for interventions among young offenders is higher than that for adults.

Moving on to specific concerns about the use of disclosure in relation to children and young people, we understand that the current MAPPA guidance makes no reference to the disclosure of an offender’s details where the individual is under the age of 18. We consider this to be a significant shortcoming. We believe that safeguards must be in place when disclosure of information about children is made, including specific guidance. The consequences of disclosure can be devastating for children and can lead to bullying, harassment, discrimination and the loss of future opportunities. It may be counterproductive to disclose the offence details of young people where the offending is in the past and where they have received treatment and have been assessed as no longer presenting a risk. Disclosure after rehabilitation can only lead to harm and may bring little future risk deferral. Children have a much greater ability to develop out of their offending behaviour and disclosure may mitigate against change by labelling and stigmatising them.

I turn now to the proposals for the four pilot programmes that will deal with adult sex offenders. Even if the pilot studies are successful, we nevertheless wish to be reassured that there would have been an empirical demonstration that the system can operate safely in relation to adults before it is extended to children and young people. I beg to move.

I accept the spirit of this amendment and acknowledge the particular issues that arise when a MAPPA authority is considering the disclosure of information on the convictions of a child sex offender who is under the age of 18. The noble Baroness is right that this often concerns people who have been abused themselves over prolonged periods and who are extremely vulnerable. It is important that the welfare of young offenders is taken into account in these circumstances, but equally I know we all accept that the risk posed by young sex offenders to others still needs to be managed.

The processes established by the existing duty to co-operate under Section 325 of the Criminal Justice Act 2003 ensure that such issues will be considered and assessed. In particular, social services and youth offending teams are under a duty to co-operate with MAPPA and will normally be expected to attend MAPPA meetings. Their involvement will help to ensure that the particular needs and welfare of the young offender are discussed when MAPPA decides whether to disclose information on that offender’s convictions to a member of the public.

Any young person who becomes the subject of a disclosure would have been referred to MAPPA by the youth offending team who would be responsible for the management of that particular case and involved in the decision and the ongoing risk management plan. MAPPA does and will consider the children’s interests, as required by Article 8 of the Human Rights Act 1998. Youth offending teams should be involved in any disclosure decisions and the existing legislation clearly envisages MAPPA managing young offenders. Any young person who becomes the subject of a disclosure would, as I say, have been referred by the youth offending team.

While I accept the intention of the amendment—I discussed this in some detail with my team—I did not feel it necessary to require the involvement of local safeguarding children boards. The noble Baroness has spoken very eloquently on this point and I would like to think further about it. Perhaps we can arrange a meeting before Report. I might possibly be convinced but I do not want to have unnecessary legislation in the Bill when this has already been covered. On that basis I ask the noble Baroness to withdraw the amendment.

As the noble Lord recognised, our concern is to ensure that the safeguards are adequate. While we understand that the youth offending teams would bear in mind mitigating circumstances in making a decision about disclosure, we welcome the Minister’s idea of considering this matter further and going into some examples that we might have of how the system would operate. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 191, as amended, agreed to.

Schedule 34 [Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”]:

177A: Schedule 34, page 316, line 2, at end insert—

“and section 48 of that Act (attempts etc. outside England and Wales) applies for the purposes of paragraph (b) as if the reference in subsection (3)(b) to any of the following provisions of that Act were a reference to that paragraph”

On Question, amendment agreed to.

Schedule 34, as amended, agreed to.

Clauses 192 and 193 agreed to.

Clause 194 [Persistent sales of tobacco to persons under 18]:

177AA: Clause 194, page 138, line 14, at end insert—

“( ) In section 7 (sale of tobacco, etc. to persons under 16) after subsection (1A) insert—

“(1B) If an offence under subsection (1) has been committed on any premises, the person having management functions in respect of those premises must be notified within 14 days.””

The noble Lord said: In moving the amendment I shall speak also to Amendment No. 177AF.

We have moved on to Clause 194, and—in this rather extraordinary Bill—from sex offenders to tobacco sales. I think that the noble Lord will be familiar with the three groups of amendments which I shall deal with because they were discussed in another place. The British Retail Consortium and the Association of Convenience Stores have also been in touch with the department to put their concerns to it. They have also briefed me and suggested the amendments which I now raise.

Clause 194 brings in new powers to take away the licence to sell tobacco from shops if they persistently sell it to underage people or commit other tobacco offences. We have no objection to that. These probing amendments are designed to tone down the strength of the proposals and bring in some safeguards.

Currently, when the offender has been convicted of a tobacco offence, he can have his licence taken away if he has also committed other tobacco offences within the previous two years; that is, if this is the third offence in two years. The first group of amendments, Amendments Nos. 177AA and 177AF, suggest that it would be fairer to the individual accused of such offences if he could be notified after the first time that some such offence had been committed. We think it vital that the retailer or his staff are provided with the opportunity to address the breakdown in their internal procedures that has allowed the sale of tobacco to underage people.

It is bad practice and possibly counterproductive to allow the situation to develop whereby an enforcement officer could withhold information about an offence having taken place so as to pursue a prosecution and a sanction later. In the interests of natural justice it would be fairer to the individual if he was told, “We believe that you have been selling tobacco inappropriately to young people”—or whatever the relevant wording is for such a tobacco offence—“Tighten up your procedures so that it does not happen again. I have to warn you that if it does happen again, or twice more, on the basis of ‘three strikes and you’re out’, you might lose your licence to sell tobacco”. I hope that the noble Lord finds that a fairly simple concept to grasp. I beg to move.

Our general approach to this group of amendments is that we would like education to be used as the first weapon in the fight against children smoking and would prefer that further criminalisation of sections of the community was adopted as an absolute fall-back position. There is a lot of sense in the probing that the Conservative Front Bench is undertaking in this amendment. I am sure that this measure would pose less of a problem to larger retailers as they have more personnel overseeing this area and many more policies in place. However, we are concerned about small shopkeepers. Although they should not break the law and sell tobacco to underage customers, it is essential that they should, as a minimum procedure, be properly notified of the measure. We should bear in mind that they often comprise one-man bands trying to do a thousand different jobs. This is a necessary probing amendment. We certainly support it more than we do one or two others that we shall discuss shortly.

I declare an interest as an officer of the All-Party Parliamentary Retail Industry Group, which is supported by the retail consortium of which the Co-operative movement is a member. I have a declared interest there which I readily admit.

One has to bear in mind that the representations that have been made, for instance by the retail consortium, represent 90 per cent of retail sales in this country. The Government should explain why they are not prepared to give due weight to, or why they should put aside lightly, the views of a body of that size. I am told that the relevant figure in connection with the Association of Convenience Stores is over 30,000. The noble Baroness on the Liberal Benches rightly pointed out that it is comparatively easy for the very large supermarkets, if they are found guilty of enabling these sales, to subject the individual who is alleged to have agreed to the sale in question to some stricture. However, as regards a small business—of which there are still very many—one has to be reasonably fair.

The amendment moved by the noble Lord, Lord Henley, strikes me as sensible. Retailers are sensitive about their responsibilities as regards the sale of not only tobacco but alcohol. I hope the Minister will comment on comparability of treatment in these matters. I understand that guidance is to be issued on how effect will be given to this. The Minister will be well aware that guidance has no relevance in law; it is guidance. Therefore, some trading standards officers may operate under the guidance and some may not. Then you have a situation where small shops which trade fairly and legally fall by the wayside for one reason or another and are not treated in the same way as other retailers.

I am certain that the law-abiding small trader whose attention is drawn to a dereliction will be quick off the mark to put it right, because his livelihood is at stake. Tobacco sales figure much larger for some shops than for others, but tobacco accounts for a sizeable proportion of sales even in big supermarkets. The Minister needs to take account of that. As far as I am concerned, the Government are right to respond to the general public’s plea that something should be done about the sale of alcohol and tobacco, but they also have a responsibility to recognise that it is sometimes not the fault of the retailer.

Dawn Primarolo, the Minister for Public Health, has said that there is little evidence that the underage purchasing of tobacco is widespread. If it is not widespread, it is present. It is right that government should bring forward some sanction. I have no disagreement with the two manners under which the retailer is punished. Two of the three strikes which may be applied may come at the beginning of the two-year period, and the other might not take place until towards the end, but the whole of the two-year period is under review. That is inequitable and unfair.

The Minister should take from this debate the genuine desire of the retail industry not only to comply with the law but to help the Minister to make good law. Most retailers are not only good citizens but good members of the community and the public. They do not want to see rogue traders deliberately and underhandedly aid and abet the purchase of tobacco by the underage—or even by those of age who purchase for the underage—and get away with it. I support the amendments in general and look forward to hearing what the Minister has to say.

I am grateful to noble Lords who spoke to Amendment No. 177A, which draws attention to the provisions on the sale of tobacco. The Government believe that more needs to be done to tackle the problem of underage smoking. Children still have far too easy access to cigarettes. In a recent survey, less than a quarter of 11 to 15 year-olds who tried to buy cigarettes from small shops found it difficult to do so. We need to do more to educate young children in this regard, but we also need to do more to encourage retailers to comply with the law on the age of sale and prevent the sale to children and young teenagers of a product which, as the Committee well knows, can cause lifetime addiction, disabling illness and, too often, premature death.

That is why we have introduced Clause 194—to enable magistrates to impose orders on retailers prohibiting the sale of tobacco for up to one year for persistent flouting of the law and restricting the sale of tobacco to people under the minimum age of 18. These orders are intended only for the most serious cases, let me make that clear. There will need to be three proven instances of breaking the law before trading standards officers can apply for a banning order. At least one of these must be a conviction that supports the application for the order. That will mean, in practice, that such an order will affect only those retailers who repeatedly flout the law and have been proven to do so through failed test purchases supervised by trading standards officers.

The point has rightly been made that the vast majority of small retailers are law abiding and perform a wonderful service for their local communities. Of course, it is for trading standards in the various local authorities to apply the law as they see fit. They are advised by their local authority body, LACORS, to do so with a light touch and not always to move to prosecution at the very first instance. That is why we intend that the noble Lord’s objective should be achieved in comprehensive guidance on how trading standards should respond to this particular wrong. Although my noble friend Lord Graham makes a point about differences in trading standards between different areas, we hope the guidance will be accepted by trading standards across the board,

I hope the Committee will welcome the provision. Of course we recognise that noble Lords have a more than legitimate concern that it should be delivered fairly, particularly for small retailers. If a legitimate retailer has trained his staff not to sell tobacco to people under 18, he will have a legitimate interest in knowing whether a rogue member of staff has breached the law. We understand why the amendment has been tabled and why it proposes a notification requirement. We support the introduction of such a requirement but believe that it should be delivered through guidance and not in the Bill.

The tobacco provisions will be subject to the guidelines for implementation which, as I said, will be drafted by the Local Authorities Coordinators of Regulatory Services in consultation with retailers.

Will the Minister deal with my point that trading standards officers who receive evidence and are satisfied that a prosecution would be right often take time to formulate their procedures for the court? The amendment would provide that that advice and guidance—or that intention—should be conveyed quickly to the retailer. If the proposed guidance provides for that, it will partially meet the point, because trading standards officers will in practice be advised by the Government to immediately inform the shopkeeper that there has been a dereliction. That would go some way towards what we want.

Although I understand that that is what the guidance will do, it is subject to consultation with all interested parties and I cannot guarantee what it will say. Certainly our view is that it should go close to saying that there should be early notification to retailers if it is thought that they have sold to underage children. We believe that working through guidance will allow time for consultation on the details of notification requests and provide for a more flexible process than a statutory notification requirement would.

The amendment proposes an unrealistic and expensive obligation on trading standards that could divert some of their limited resources from their core functions, which is to prevent the sale of tobacco and alcohol to young people, one of the points made by the noble Baroness, Lady Miller. We think that an absolute duty to notify within 14 days would impose an obligation to trace and contact everyone performing a management function for a premises. That could be very difficult, expensive and impracticable to fulfil. It will not always be possible to identify and contact everyone working in a management position for a tobacco retailer within 14 days of an offence being committed; sometimes they are at one remove, but at big stores they could be much removed.

We think that guidance is a much more appropriate way of addressing this issue. It is also not common to put this sort of amendment into primary legislation. I therefore hope the noble Lord will be satisfied with the offer and undertaking I have given.

It would be churlish of me not to thank the noble Lord for giving me at least some of what I asked for. However, I found his closing remarks fairly extraordinary—and the look on the face of the noble Lord, Lord Graham of Edmonton, implied that he found them extraordinary as well. To suggest that 14 days is not long enough to notify all those in the management of a small corner shop, in particular, seems extraordinary.

Is the noble Lord suggesting that the statute should distinguish small retailers from large supermarkets? If so, I would be grateful to know how he would plan to do that.

No, I was not suggesting that. The noble Lord and I know perfectly well that the problem is more likely to apply to the smaller shops. Getting hold of their management would be relatively easy. Getting hold of the management of a large supermarket is also pretty straightforward—one just goes into the supermarket and asks to see the manager. That is another matter.

I am grateful for the noble Lord’s offer of guidance. I still do not understand why this matter cannot be dealt with in statute. As the statute currently stands, it would be possible for an overzealous trading standards officer, no doubt trying to meet some target probably imposed by central government, to build up his record by not notifying the shop about the offence being committed. In due course, that shop would find itself prosecuted on the third occasion, not aware that it had committed offences on earlier occasions.

The noble Lord says that those offences will have to be proven offences and that, in most cases, there had been a conviction. However, he also made it clear that there could be occasions when there had not been a conviction; that is, when he was tried for the third offence, they could show that he had committed offences on the earlier occasions. It would be more satisfactory, and more in keeping with natural justice, if the shop was notified on the first occasion so that it could improve the training of its staff and ensure that such offences did not happen again. I am sure the Minister will agree that, in the main, it is better to pursue an educative approach of that sort rather than add to the number of those acquiring criminal convictions when there would have been no need to do so if the proper approach had been pursued earlier.

I am nevertheless grateful that the Minister has said that guidance will be available. Will he let me know in due course whether we might see some of that guidance before the Bill reaches the statute book, or can he offer at least some intelligence on when it is likely to appear? If he can respond now, I shall withdraw the amendment afterwards.

If Parliament passes these measures, it is not likely that they will come into force until April 2009. The guidance, having been consulted on, will obviously be published before then. I cannot say that it will be done before the Bill passes through Parliament, as that would be completely unrealistic, but it will be done before the legislation comes into force. The proposed implementation date is April 2009 and the guidance will be available by then.

If the voices of 90 per cent of the retail trade and 33,000 small traders combine to disagree with the guidance when it is issued, can we have an assurance that reflection will be the name of the game?

I want to give my noble friend whatever assurance I can. I do not know whether I can give him the actual assurance he seeks, but the consultation will be with the retailers—small retailers, and no doubt large ones too—as well as with other sections of the community. Remember the evil that we are trying to deal with: the sale of killer tobacco to young children.

I will try to bear this in mind in April 2009, although we may have other things on our minds at that stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

177AB: Clause 194, page 138, line 32, leave out “one year” and insert “3 months”

The noble Lord said: I shall speak also to Amendments Nos. 177AC to 177AE. These amendments relate to the second point that I wanted to make about dealing with the sale of tobacco, which is the length of the reference period and the length of the ban. First, on the length of the reference period—three offences over two years—I understand that in broadly similar legislation relating to the sale of alcohol the reference period is not two years but three months. It seems only fair that the same rules should apply to both. I should be interested to hear what the Minister has to say about that.

Similarly, on the length of the ban, one year is a heavy sentence, especially for some of the smaller shops, a large proportion of whose turnover will be from the sale of tobacco. It may be helpful to give the figure that I have from the British Retail Consortium and the Association of Convenience Stores, which the noble Lord, Lord Graham, mentioned. On average, 22.3 per cent of the turnover of such stores can be made up of tobacco sales, so this sanction would be a hefty one to impose on them.

I add one other, purely personal, argument, although I do not suppose that it will receive much support from the noble Lord. It is perfectly legal to smoke tobacco, but he is also imposing an inconvenience on the smoker himself, who may want to buy from a particular store that has lost its licence. To impose the sanction on that store for a year rather than three months seems to be rather overdoing it. I beg to move.

The amendments that we have more problems supporting are those that suggest that the ban should stay in place for only three months. The ban is to be imposed only after persistent offences and in a way that is very clear for members of the public, but how are the public to know that a ban has been imposed? I see nothing in the Bill about notices having to be issued. Will it just be left to the shopkeeper to say that a ban is in place? Three months is a difficult period, because it is just about long enough for the public to know that there is a ban before the shop is able to sell tobacco again. If the shopkeeper persists and offends again, there will be another three-month ban. The Government are more correct here in going for a more understandable period.

I hear what the noble Lord, Lord Henley, says: it will be a huge burden on shopkeepers who fall foul of the law, albeit that they have knowingly transgressed that law, as will be the level of fine, which we shall discuss shortly. I want to check how the Government arrived at that tariff for this offence. In legislating about this, we are talking about children, but there is still a bit of a schizophrenic attitude in society in general—I am not suggesting that it is here this afternoon. The view is that smoking is very bad but, on the other hand, the Treasury and the shopkeeper must still be allowed to profit from it. Adults are still allowed to smoke if they want. I think that we are half way through an evolutionary process and it is right that we should take some time over it.

I emphasise the need for more money to be spent on education, so that the children do not go to the shops in the first place. That is where local authorities come in. Enforcement will come down to LACORS. Trading standards officers are a bunch of people for whom I have tremendous admiration. They have a pretty unenviable job. Usually, they tread a fine line in trying to enforce things and doing so with the consent of the community, whether on the sale of tobacco or on other things. In the regulation of markets, it is difficult to keep the retailers onside. In this case, education must be the front line and I would expect local authorities to take that to heart. These measures will always be a last resort.

I am grateful to the noble Lord, Lord Henley, for moving the amendment and to the noble Baroness for speaking to it. Of course, the amendments were tabled out of legitimate concern that the new measures should be implemented fairly. However, I hope to persuade the Committee that, while the amendments have obviously been tabled for the best of reasons, they would seriously undermine the aim of the new orders, which is to deter unscrupulous retailers from selling tobacco to children and young people aged under 18. This is a serious sanction for a serious breach of the law.

Amendments Nos. 177AB and 177AD would reduce the maximum penalty for persistently flouting the law and selling tobacco to under-18s from a one-year ban on selling tobacco to a three-month ban. That would have the unfortunate effect of removing the deterrent against unscrupulous retailers selling tobacco to children. If the maximum penalty were only three months, an unscrupulous retailer might consider that he could afford to risk a restricted premises closure whereby the premises would be closed for up to three months for the sale of tobacco, after which he might resume business and continue to sell tobacco to people under the minimum age. While we appreciate the potential impact of a lengthy order on retailers, we are determined to deter all shops, whether large, small or medium, from selling tobacco to young people.

Of course, the orders will be reserved for serious cases where the law is persistently being flouted. Twelve months is the maximum period for a ban on the sale of tobacco, not the minimum or the guidance period. Magistrates will determine the actual length of a ban in light of all the circumstances of the individual case. It is perhaps common sense to say that the 12-month period is likely to be reserved for the most serious cases.

Amendments Nos. 177AC and 177AE would reduce, from two years to three months, the period over which persistent breaches of the law on selling tobacco to under-18s have to be demonstrated. Before an order is given, at least three tobacco offences must have been committed over the two years up to the date of the order. In practice, offences relating to the sale of tobacco to under-18s are typically demonstrated through test purchasing for compliance with age of sale for tobacco, undertaken by trading standards. On average, such test purchasing takes place for each tobacco retailer about once or twice a year. Also, it will take some time from the commission of an offence to the date when the magistrates’ court considers the order.

The amendments would reduce the period over which that persistent sale must be proven to such a short period—from two years to three months—that the proposed orders would not be usable. Given that test purchasing takes place only once or twice a year, it would simply not be possible to demonstrate that three offences had taken place over a three-month period. We think that the two amendments would kill off the legislation. New orders would become entirely ineffective; they would become a laughing stock. I hope that the noble Lord will reconsider his amendments and be kind enough not to press them this afternoon.

The noble Baroness, Lady Miller, has twice mentioned the primacy of education for young people. On behalf of the Government, I agree that it is absolutely crucial. National communications campaigns, which she will know about, have been highly effective and are continuing. They encourage people of all ages to stop smoking—of course, it remains legal for adults to smoke if they choose to do so—and they outline the dangers of smoking to people’s health. The noble Baroness will know that there is a lot of education going on for young people; there can hardly be too much. We agree that it is the primary way of stopping young people smoking—certainly not the measure that may or may not be proposed in the next amendment.

I thank the noble Lord for his response. I have only one question. Was I right in saying that there is similar provision for alcohol sales, but the reference period is three months rather than two years? Would it not be fairer to have the same provision for sales of tobacco as for sales of alcohol?

I apologise for not answering that. I do not know the answer to that question, but no doubt I can find out by the time we complete our discussions on Clause 194. I will come back to the noble Lord on that.

I thank the noble Lord for that. There is no desperate hurry; he can write to me in due course to let me know. I may come back to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 177AC to 177AF not moved.]

177AG: Clause 194, page 140, line 29, at end insert—

“12E Purchase of tobacco by or on behalf of children

(1) An individual aged under 18 commits an offence if he buys or attempts to buy tobacco or cigarette papers.

(2) But subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of—

(a) a constable, or(b) a weights and measures inspector who is acting in the course of his duty.(3) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.

(4) Where a person is charged with an offence under subsection (3) it is a defence that he had not reason to suspect that the individual was aged under 18.

(5) A person guilty of an offence under this section is liable on summary conviction—

(a) in the case of an offence under subsection (1), to a fine not exceeding level 3 on the standard scale, and(b) in the case of an offence under subsection (3), to a fine not exceeding level 5 on the standard scale.””

The noble Lord said: I am always loath to bring forward amendments that bring in new offences; the Government, with their 3,000 or so new offences since 1997, seem to manage to do that job perfectly well themselves. On this occasion, however, the amendment proposes some new offences. At this stage, it is purely a probing amendment.

As I understand it, at the moment the under-18 year-old who purchases tobacco is not himself committing an offence; the offence is committed by the person selling it. Nor is someone committing an offence if they go in and buy tobacco for someone who is under 18. The amendment proposes, first, that it should be an offence for the under-18 year-old to buy or to attempt to buy tobacco and, secondly—this is the much more important part, because I am not particularly sold on proposed new subsection (1)—an offence would be committed by someone purchasing tobacco on behalf of an under-18 year-old to get around the law. I would be grateful to hear the Government’s response before I consider whether I want to come back to this on Report. I beg to move.

No, please let us not make any more offences. There are enough of them cluttering up the children’s courts without more. No, no, no.

May I ask the noble Lord, Lord Henley, for a little clarification? Proposed new subsection (2) states that,

“subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of … a constable, or … a weights and measures inspector”.

Does that mean that a constable or a weights and measures inspector may ask a child to go into a shop and buy cigarettes or tobacco papers in order for him to see whether he can catch the shopkeeper out selling them?

I, too, find subsection (2) rather sinister because it seems to encourage agent provocateurs. Subsection (3) would catch parents who bought a packet of cigarettes and who were seen later to offer one to their 17 year-old son or daughter. Surely that is not what the noble Lord, Lord Henley, intends; I would be interested to hear from him on that.

I would never want to be seen to speak up on behalf on anyone trying to sell tobacco to those who are under age, but I am a little confused over the amendment’s wording and I would be grateful for clarification on subsection (3). I note that the proposed offence is about buying or attempting,

“to buy tobacco on behalf of the individual aged under 18”.

I hope that that has been deliberate in omitting cigarette papers because there is a very particular position for young people who play musical instruments. Cigarette papers are very useful for drying the keys of flutes, clarinets, saxophones and other woodwind instruments during a concert. Apparently, they dry them better than anything else, so musicians will often slip a cigarette paper in a damp key to it get to function better. I hope that parents and, indeed, music teachers would be able to buy cigarette papers for such purposes and would not be committing an offence because it is in the interests of children’s education.

Although I do not want cigarettes sold in any way to young people—we know the danger for young people in starting smoking—if they acquire a criminal record they get labelled and stigmatised later on. I have some concerns about giving to a teenager who may be at an experimental stage a criminal record that sticks on their file for life. They have a record of an offence and I am concerned about the issues involved with joining a group of people who have a criminal record. There may be an unintended adverse consequence from a proposal that is designed to stop young people getting cigarettes.

Does my noble friend agree that another adverse consequence is that the young person in question would have their DNA compulsorily taken?

I rather side with the view of the noble Earl, Lord Onslow; that is, that it would not be right to add more offences at this stage for these purposes, with agent provocateurs—whether a constable or whoever—trying to catch out some wretched young person. I also endorse the comment of my noble friend Lady Finlay about children of that age not being criminalised; there clearly is an opportunity for them to grow up, and they do so at slightly different speeds. I hope that the Minister and the Government will not go down this road.

I will briefly make an extra comment: this is the first time that the Government have had any support on any amendment in the Bill.

I thought that the noble Lord, Lord Henley, was very brave when he moved his amendment. Indeed, he said as much in his opening comments. I will not detain the Committee for long. The noble Earl, Lord Onslow, put it succinctly when he said no, no, no; we thoroughly agree with that. We do not want to criminalise more young people. The amendment talks about buying tobacco on behalf of individuals aged under 18; people who are just 18 might be doing that for their younger friends and we will have a swathe of criminals before we know it.

I absolutely agree with the comments on the DNA database, which we do not support. People will go through their life with a criminal record on the DNA database that cannot be removed unless the chief constable says so, which he almost never does. I simply come back to the fact that it is a matter of education. I could not disagree more with the amendment.

I am not sure that education works very well in this matter. The more you tell young people not to smoke, the more they do it, especially if teachers do it. I am therefore a little cynical about that. It is extremely difficult and we must struggle with it. It is extremely important that we stop them smoking, but it is not quite as easy as noble Lords seems to think.

I should say to my noble friend Lord Henley that tobacconist friends of mine tell me that it is extremely difficult to know who is and who is not a child, and that an enormous number of 18 and 19 year-olds come in looking rather elderly and buy tobacco for young people. The problem is not easily solved. We would have a lot of new criminals of 18 and 19, which we probably do not want. I do not know what the Minister will say. I do not like to undermine the yeoman efforts of my noble friend on the Front Bench to improve the Bill, but he is on slightly shaky ground here.

I must comment on the noble Baroness’s remarks on education. The Speaker of your Lordships’ House has a wonderful outreach programme, which has meant that I have gone to lots of schools recently. However, the evidence, which is not mine—it goes much wider than that—is that if you tell young people simply not to do something or make it criminal, such as speeding, they tend to still do it. Indeed, it is sometimes much more exciting to do it. When you tell them why they should not do it, they start to take notice.

It is perhaps not surprising that the Committee shows great interest in this important social problem. I am delighted that so many noble Lords have taken part in the debate on these amendments, or, if they have not taken part, are present to listen to it.

Before I deal with the amendment, I shall come back to the alcohol point that the noble Lord, Lord Henley, mentioned in our debate on the previous amendment. Alcohol test purchases are much more frequent than tobacco test purchases, so three months is reasonable for alcohol, whereas it would not be reasonable for the much less frequent test purchases of tobacco.

Amendment No. 177AG would make it a criminal offence for someone under 18 to buy or attempt to buy tobacco, or for an adult to buy or attempt to buy tobacco on behalf of someone under 18. We believe that criminalising young people who attempt to buy tobacco is not the best way to go about reducing the number of children who smoke, and is not in the best interests of young people themselves. It is far better to discourage children from smoking in the first place and to help young smokers to quit than to criminalise them. Our aim is to do everything possible to discourage young people from wanting to smoke by promoting, as the noble Baroness, Lady Miller, has just told the Committee, the health benefits of not taking up the habit when young. It is also important to try to help children who have taken up smoking—there are many of them—to quit. To achieve this, we are encouraging young people to get help from the NHS Stop Smoking Service. We are also making available nicotine replacement therapy to teenagers on prescription.

Nor do we think that making an offence of purchasing tobacco by someone under 18 would be likely to be effective. I was delighted to see those who have quite rightly complained many times during this long Committee at the Government for introducing new offences, or for not doing enough to decriminalise young people’s behaviour, get to their feet. I would have been disappointed if the noble Earl, Lord Onslow, and many others in the Committee had not got to their feet to make the points that they have made.

We have heard time and again in Committee that the welfare of the child must be at the heart of the youth justice system. The Government have received support where they have sought to divert young people from the formal court system through measures such as the youth conditional caution. The message has been loud and clear from all sides of the Chamber that, where possible, we should aim to ensure that young people are kept out of the youth justice system and that minor offending does not escalate. Frankly, creating an additional relatively minor offence which would criminalise large numbers of young people would hinder these aims and would not necessarily be very effective. In practice, prosecuting authorities properly do not favour prosecuting children for minor offences unless absolutely necessary because criminalising young people often does further damage to their prospects. The noble Earl was right when he said that on this issue the Government were solidly against the amendment.

Public consultation supports our position on this amendment. In the summer of 2006 there was virtually unanimous support for raising the age for the sale of tobacco to 18. Most respondents felt that it was fair for the onus to be on the retailer for ensuring that children and young people under 18 do not purchase tobacco. As everyone knows, the law changed on 1 October 2007. Research carried out by the Department of Health since the introduction of the age change shows that most retailers and teenagers, including 16 to 17 year-olds, support the change. We recognise that the problem of under-age smoking is a complex issue involving various factors, not just the supply of tobacco to children and young teenagers. That is why the education programme that we have talked about is so important.

I turn to what the noble Lord himself identified as the more interesting part of his amendment—the issue of whether to criminalise the proxy purchasing of tobacco by adults for children. Buying tobacco for a young person is plain wrong but there may be difficulties with enforcing such an offence were it to come into being. The noble Lord, Lord Monson, raised a most interesting point about something which would happen in practice a great deal. It would cause many problems for the prosecuting authorities and for families. New laws should generally be grounded on a solid evidence base. We are not aware of any hard evidence that the proxy purchasing of tobacco is a common practice. We know it takes place but surveys tend to show that the most regular smokers under the minimum age usually obtain the tobacco themselves by buying it from shops. I hope I give some comfort to the noble Lord by saying that we will keep the last part of what he has suggested under review—no more than that—and return to it if, as the years pass by, there is evidence of a real problem of adults buying tobacco on a young person’s behalf. So we do not reject out of hand that part of his amendment but, as for the first part of the amendment, I am afraid—in the now no doubt famous words of the noble Earl— “No, please not”.

I cannot say I received overwhelming support for this amendment. As I made clear earlier, I am always rather loath to introduce new offences in government Bills. After that experience I will refrain from introducing any new offences for some considerable time. I acquired one fascinating piece of information from the noble Baroness, Lady Finlay of Llandaff, about the use of cigarette papers, which incidentally would be covered in Clause 194—page 139, line 29. My amendment merely replicates what is in the Bill. Perhaps the Government would want to look at the sale of cigarette papers in their own drafting of Clause 194. However, having acquired that information, the best thing that I can do is, on behalf of all flautists, saxophonists and others, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

177B: Clause 194, page 140, line 33, at end insert—

“(4) After section 17 (interpretation of Part 1) insert—

“17A Report to Parliament

Within one year of the commencement of section 194 of the Criminal Justice and Immigration Act 2008, the Secretary of State shall lay a report before both Houses of Parliament on the effectiveness of arrangements for preventing tobacco offences being committed against persons under the age of 18.””

The noble Lord said: With this last non-government amendment, we are very nearly at the end of Committee stage of this Bill. I must congratulate my noble friends on the Front Bench on timing the discussions of these clauses on tobacco control on national No Smoking Day. The fact that that has gone otherwise unremarked in this House indicates the success of the measures in the Health Act 2006. There are one or two veterans of that campaign—one on one side and a couple more with me—who are applauding the legislation which went through and which is proving to be such an enormous success.

The indications are that the prevalence of tobacco smoking is generally falling. However, as we have heard in these very interesting recent debates, there is still a substantial problem of smoking by under-age children, which is what I would call them. They are certainly young people and the number of young people who have their first experience of smoking as a child is very high. We must remember that if your first experience of smoking is as a child, the likelihood is that you will stay smoking, because 82 per cent of adult smokers say that they started smoking as teenagers.

We also know that there are huge numbers of under-16s who successfully buy cigarettes. Something like half of under-16s bought cigarettes during 2003. Yet—this is the reason for my amendment—there were only 117 prosecutions in England and Wales for selling cigarettes to under-age people. As we have heard, there are around 65,000 tobacco retailers and I have a concern about the measures in the Bill on this subject. If the number of prosecutions is so small, it will be difficult effectively to implement these very important provisions, which I wholeheartedly support. Unless we know what the impact of those orders is, how will the Government monitor how successful they are?

A number of organisations have written to me and I was told about a Nottinghamshire trading standards response. It said that the orders in the Bill,

“will in reality not prove much of a deterrent for retailers bent on selling tobacco to minors. At present, it is understood both by trading standards officers and retailers that the majority of magistrates do not treat this breach of the law particularly seriously when cases go to court”.

These comments worry me, as they suggest that the very people who are charged with tackling under-age tobacco sales—the trading standards officers—are seriously concerned about how much adherence to the law there is. We should remember that proper enforcement of under-age sales would protect retailers—we have heard a lot on behalf of them today—who abide by the law and would help to clamp down on the sale of smuggled cigarettes.

The lack of seriousness with which adherence to the law is taken is highlighted by the disparity between how licensing differs for tobacco products and other items with a minimum age of sale of 18, such as alcohol and fireworks, the sale of which are subject to licensing. Fireworks account for approximately 1,000 injuries per year, which is, of course, far too many. But in the UK, around 114,000 people die from smoking-related illnesses each year. There are strong arguments for introducing a similar licensing system for the sale of tobacco as applies to alcohol or fireworks. A number of countries, such as Spain, Greece, Poland, Hungary, Belgium and Italy, have such licensing systems. It was put to me that perhaps we should discuss an amendment to introduce a positive licensing system of that sort. Certainly, organisations such as ASH, Cancer Research UK, the British Heart Foundation and the Royal College of General Practitioners—as well as, interestingly, a major tobacco manufacturer that has written to me—all say that they would prefer a positive licensing system requiring a retailer to apply for, and to be granted, a licence to sell tobacco. That, however, is for another day.

Today, I seek the Committee’s support for a simple amendment to give the Government and Parliament the opportunity to monitor the success of their policy in discouraging underage tobacco sales. I beg to move.

The noble Lord, Lord Faulkner, and I have crossed swords over tobacco on many occasions in the past two or three years, so he may be surprised to hear that I have no quarrel, in principle, with his amendment—in principle, that is—although I wonder whether one year is sufficiently long to evaluate the success of the new legislation. Two years might be better.

However, I am puzzled by the wording at the end of the noble Lord’s amendment. It refers to,

“tobacco offences being committed against persons under the age of 18”.

Supposing that one were to substitute “alcohol” for “tobacco”; if you heard somebody talk about an alcohol offence being committed against someone under 18, you would assume that that referred to drunken yobs launching unprovoked assaults on innocent teenagers. Such wording would not, however, be used to describe somebody selling a can of lager to those teenagers. Would it not be simpler if the noble Lord’s amendment referred simply to preventing tobacco or tobacco products being sold to persons aged under 18?

As is so often the case, the noble Lord, Lord Faulkner, has come up with an interesting and sensible idea that has merit. I was struck by the YouGov poll that showed such widespread public support—I think that it was 87 per cent—for the idea of a licensing regime for tobacco. That would be logical, as being licensed means that your staff are trained in requiring ID cards, assessing people’s ages and all that comes with that. When we think of the training in food handling needed for even a small shop to sell just a couple of food items—the certificates on food handling, and so on—it is extraordinary that when we come, as the noble Lord said, to selling a product with far greater health implications, one could walk in as a shop assistant and just sell it over the counter.

There are many implications behind what the noble Lord says. As for the retailers, if we are to move forward by working out the best way of doing this in conjunction with both them and trading standards officers, then this is a practical way to progress that argument.

I do not wish to prolong the debate, as the noble Lord, Lord Faulkner, has most eloquently said most of the things that needed to be said. To emphasise his point, 82 per cent of adult smokers started as teenagers. It is during the teens that the addictive potential seems to be, physiologically, at its greatest, which is why all of the Government’s initiatives against teenage smoking are so important.

The amendment, and its idea of reporting back, would give the opportunity for trading standards officers and those in the law enforcement process, such as magistrates, to feed back formally. In your Lordships’ House, we sometimes feel that we could do with feedback on how some new legislation is working. Perhaps we should formally collect the data. At the moment we put down Questions only to find that people have to scurry around trying to pull data together from lots of different sources. If this amendment were accepted, it would allow prospective collection of data that would then allow reporting back. That would be much less costly than a series of parliamentary Questions put down in a year’s time, with people scurrying around to pull data together.

I also very much support the amendment. All of the briefing we have had from ASH and others makes the situation clear. We do not have the facts and figures. If we have those in a year’s time, we may want to extend it a bit longer than that. However, initially, it will provide a helpful check on what will have been achieved at that stage. Of all the figures on the age at which you start smoking and the damage it does to you, the one that sticks in my mind is that, if you start smoking before the age of 15, your risk of lung cancer is at least doubled. That alone should make us think twice, if not four times, about any of these areas. I backed the rise in the age for purchasing tobacco from 16 to 18 so I very much support the amendment.

Above all, on this important problem, we have to change the fashion among teenagers for smoking. That will take time. It will not happen in a year but that does not mean that the amendment is a bad idea. Collecting the data within a reasonable length of time will be useful, although a year may not be long enough—I do not know enough about the technicalities.

However, it is the fashion that has to change. We all know that teenagers spread fashions among themselves and that it is still very fashionable to smoke among many of them. That is why our education process, although useful, is not the end of the story. The teenagers themselves have got to change their minds about what it is fun and cool to do. At the moment, it is still cool for many to smoke. I hope that, gradually—through government measures, what is said in Parliament and, above all, through what is written in teenage magazines—the fashion will change. Then, we shall scotch the problem, but not until then.

It is worth recalling how things have changed enormously in relation to tobacco over the past 50 years. When I went to Aden as a soldier in 1959, we were told that, if someone was wounded, we should give him a cup of tea, a cigarette and jam some morphine into him. Today, the concept of the medical profession advising people to have cigarettes is incomprehensible. Things have changed enormously. There is merit in what the noble Lord, Lord Faulkner, said, but we must go on solely by persuasion, persuasion, persuasion. I think it is a filthy habit but do not see why people should not do it. We must try and persuade them not to.

I am grateful to my noble friend Lord Faulkner for his amendment and to all noble Lords who have spoken to it. I pay tribute to my noble friend for his constant work on this subject over many years. He talked about today being No Smoking Day. It is also Budget Day and measures have been taken on this that should also please him. He made a good point about retailers—quite rightly, we have had important debates on them. However, every time a retailer sells tobacco to under-18s, it is an offence to law-abiding retailers who do not. Therefore, it is for their benefit as well.

We recognise that noble Lords are legitimately concerned that this proposal should be delivered in an effective and fair manner. I remind the Committee that we take the problem of under-age smoking very seriously. Noble Lords should have no doubt that we are working hard to make this policy a success.

Before addressing the amendment itself, I should like to say a few words about positive licensing. The noble Baroness, Lady Miller, made some interesting points in that regard as did my noble friend in moving his amendment. Two years ago we consulted widely on this issue, and the majority of respondents supported a negative licensing system. While we agree that there would be some specific benefits in having a positive licensing system, as outlined by the noble Baroness, there would be additional bureaucratic burdens on local authorities and retailers that would outweigh those benefits. A positive licensing system would require prospective tobacco retailers to apply for a local authority licence before they could sell tobacco products, and retailers found to be persistently breaking the law on underage sales would have their licences removed either on a temporary or on a permanent basis. Under the negative licensing system that we are adopting, retailers are free to sell tobacco but can lose their right to do so under a court-imposed order.

This is not a closed subject, of course, but for the moment we think that we are right to go down this path. A negative licensing scheme creates a powerful incentive for retailers to comply with the law on the age of sale without requiring a new and extensive bureaucracy to support it. However, I have no doubt that this debate will continue.

This amendment would require the Government to report to Parliament within a year of commencement about the effectiveness of arrangements preventing the illegal sale of tobacco to persons under the age of 18. No doubt noble Lords would bring their customary thoroughness to scrutinising the effectiveness of this policy, but we are not sure that the amendment is an effective means of achieving it. As the noble Lord, Lord Monson, said, one year is not a realistic period in which to judge the effectiveness of the new system. Noble Lords will recall that the threshold for applications for the new orders will be high: at least three proven instances of non-compliance with the law, at least one of which must be a conviction; and even if a retailer has flouted the law, it will take some time to reach the threshold, particularly if fair and adequate notice is to be given to that business. An order can be made only where three episodes of non-compliance are demonstrated over a two-year period. As I have already told the Committee, the law is not expected to come into force until April 2009 so the result of a review in 2010 would suggest that the new orders were not being used a great deal for the obvious reason that compliance with the law is judged over a two-year period. I do not think that that would be of great assistance to the House in scrutinising this crucial area of policy.

However, we understand very well the concern that lies behind the amendment. While we do not think that an inflexible statutory requirement to report to Parliament in a set period would be the best way forward, we believe that noble Lords should have access to full information about the success of this policy. I can therefore assure the Committee that the Department of Health intends to monitor these new measures carefully and report back to Parliament once their effects have become clear. Given that the period over which compliance is judged is two years, it is unlikely to report before 2011, but of course that does not stop noble Lords and Members of another place bringing up this subject in the mean time, which no doubt they will do.

The types of information to be covered by the report might include the number of restricted premises and sales orders imposed, the number of prosecutions under the 1933 Act and the number of fixed penalty notices for the sale of tobacco to people under the minimum age. It might include the prevalence of smoking among young people, the number of those under the minimum age who attempt to buy tobacco from retailers, and the difficulty they encounter in making a purchase. That is reported annually in smoking, drinking and drug use surveys, as well as the number of failed test purchases. So I hope that the information that my noble friend is concerned that we should discuss will be before Parliament, but a year from April 2009 is too soon for the data to be as useful as they might be. For these reasons, and thanking him for the amendment, I would ask that he withdraw it.

I am a little overwhelmed by the degree of support for the amendment from all parts of the Committee, including from my old friend the noble Lord, Lord Monson, who quite rightly said that the wording is not perfect. I accept that immediately. If I were to continue with the amendment, I would talk to him about changing it. However, in view of the undertaking that my noble friend has given about a review after two years, I do not intend to do that.

I would like to impress on the Government the importance of making it clear to trading standards officers and magistrates that the sale of tobacco to children and under-18s is a serious offence. It causes social mischief and creates a health hazard. The message has to go out from the Department of Health that this is unacceptable and that the department wants to see it stopped. Unless we can deal with the problem before people become addicted to this dreadful drug, the prevalence of tobacco will continue to be at a high level. In thanking everybody who took part in the debate and taking on board the assurances given by my noble friend, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 194 agreed to.

Clause 195 agreed to.

Schedule 35 [Amendments to armed forces legislation]:

177C: Schedule 35, page 316, line 10, leave out from beginning to “In” in line 19 and insert—

“2 In section 12 (power to quash conviction as unsafe), after subsection (1) insert—

(1A) ”

The noble Lord said: In moving Amendment No. 177C, I will speak to a large group of minor and consequential amendments. They serve two distinct purposes. Amendments Nos. 177C to 177F to Part 1 of Schedule 35 and Amendments Nos. 180ZZA to 180ZZD to Part 3 of Schedule 37 are consequential on the removal from the Bill of Clauses 42 and 43 relating to appeals. The remaining amendments make equivalent provision in Armed Forces legislation to Parts 2 and 3 of the Bill and consequential amendments. I beg to move.

The Minister may recall that I was involved in the passage of the Armed Forces Bill. I declare an interest as chairman of the Association of Military Court Advocates. During the passage of that Bill, we asked that military law be rather more comprehensible. The number of amendments here to an Act that is only a year or two old is such that any practitioner will find it very difficult to understand where military law now stands. Will the Minister consider what steps can be taken to produce a loose-leaf volume containing all the amendments that are made to the Act?

That seems an extremely reasonable request. I would like to come back to the noble Lord when I have been able to talk to officials about what may be the best thing to do.

On Question, amendment agreed to.

177D: Schedule 35, page 316, line 23, leave out from beginning to “In” in line 35 and insert—

“3 In section 21 (appeal against finding of not guilty by reason of insanity), after subsection (1A) (as inserted by the Armed Forces Act 2006) insert—

(1AA) ”

177E: Schedule 35, page 317, line 1, leave out from beginning to “In” in line 13 and insert—

“4 In section 25 (disposal of appeal against finding of unfitness), after subsection (1A) (as inserted by the Armed Forces Act 2006) insert—

(1AA) ”

177F: Schedule 35, page 317, line 17, leave out paragraphs 5 and 6

177G: Schedule 35, page 317, line 26, at end insert—

“Interim hospital orders6A Section 16(5) (effect of interim hospital order made by Appeal Court) is omitted.

6B Section 25B(3) (as substituted by the Armed Forces Act 2006) (effect of interim hospital order made by Appeal Court) is omitted.

6C Before section 36 (but after the cross-heading preceding it) insert—

“35A Effect of interim hospital orders

(1) This section applies where the Appeal Court—

(a) make an interim hospital order by virtue of any provision of this Part, or(b) renew an interim hospital order so made.(2) The Court Martial shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.”

6D In section 36 (powers of Court under Part 2 which are exercisable by single judge), in subsection (1) after paragraph (h) insert—

“(ha) to renew an interim hospital order made by them by virtue of any provision of this Part;”.Evidence6E (1) Section 28 (evidence) is amended as follows.

(2) In subsection (1), at the beginning insert “For the purposes of an appeal or an application for leave to appeal,”.

(3) In that subsection, for paragraph (b) substitute—

“(b) order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies); and”.(4) After subsection (1) insert—

“(1A) The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—

(a) the Appeal Court;(b) the appellant;(c) the respondent.” (6) In subsection (4), at the beginning insert “For the purposes of an appeal or an application for leave to appeal,”.

(7) After subsection (4) insert—

“(5) In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.”

Appeals against procedural directions6F In section 36C (appeals against procedural directions), subsections (1) and (2) are omitted.

Detention of accused pending appeal to Supreme Court6G (1) Section 43 (as amended by the Armed Forces Act 2006) (detention of accused on appeal by Crown) is amended as follows.

(2) In subsection (1) for “may make an order under this section” substitute “shall make one of the orders specified in subsection (1A)”.

(3) In subsection (1A)—

(a) for “An order under this section is” substitute “The orders specified in this subsection are”,(b) the word “or” at the end of paragraph (a) is omitted, and(c) after paragraph (b) insert—“(c) an order that the accused be released without bail.”(4) After subsection (1B) insert—

“(1C) The Appeal Court may make an order within subsection (1A)(c) only if they think that it is in the interests of justice that the accused should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.”

(5) In subsection (2) for “under this section” substitute “within subsection (1A)(a) or (b)”.

(6) For subsection (5) substitute—

“(5) The accused shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—

(a) the Appeal Court have made an order within subsection (1A)(c), or(b) the Appeal Court have made an order within subsection (1A)(a) or (b) but the order has ceased to have effect by virtue of subsection (2) or the accused has been released or discharged by virtue of subsection (3).” ”

177H: Schedule 35, page 317, line 30, at end insert—

“Consecutive custodial sentences7A In section 188(4) (consecutive custodial sentences), after “Part 12 of the 2003 Act” insert “or under Part 2 of the Criminal Justice Act 1991”

177J: Schedule 35, page 317, line 43, leave out “under that law”

177K: Schedule 35, page 317, line 43, at end insert—

“Dangerous offenders8A In section 209 (offenders under 18 convicted of certain serious offences), in subsection (7) for “sections 221, 222 and 227” substitute “section 226(2) of the 2003 Act (as applied by section 221(2) of this Act) and section 227 of this Act”.

8B (1) Section 219 (dangerous offenders aged 18 or over) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a serious offence, and(c) the court is of the required opinion (defined by section 223).”(3) For subsections (2) and (3) substitute—

“(2) Section 225(2) to (4) of the 2003 Act apply in relation to the offender.

(3) In section 225(2) and (3A) of the 2003 Act (as applied by subsection (2)), references to “the offence” are to be read as references to the offence under section 42 of this Act.”

(4) For the italic cross-heading before section 219 substitute “Required or discretionary sentences for particular offences”.

8C (1) Section 220 (certain violent or sexual offences: offenders aged 18 or over) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a specified offence,(c) the court is of the required opinion (defined by section 223), and (d) where the corresponding offence under the law of England and Wales is a serious offence, the case is not one in which the court is required by section 225(2) of the 2003 Act (as applied by section 219(2) of this Act) to impose a sentence of imprisonment for life.”(3) For subsection (2) substitute—

“(2) Section 227(2) to (5) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for “section 227” substitute “section 227(2) to (5)”,(b) before paragraph (a) insert—“(za) the reference in section 227(2A) to “the offence” is to be read as a reference to the offence under section 42 of this Act;”, and(c) in paragraph (a) for “subsection (2)(b)” substitute “subsection (2C)(b)”.(5) After subsection (3) insert—

“(3A) The power conferred by section 227(6) of the 2003 Act includes power to amend section 227(2B) as applied by this section.”

8D (1) Section 221 (dangerous offenders aged under 18) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a serious offence, and(c) the court is of the required opinion (defined by section 223).”(3) For subsection (2) substitute—

“(2) Section 226(2) to (4) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for the words from the beginning to “is” substitute “In section 226(2) of the 2003 Act (as applied subsection (2))”, and(b) in paragraphs (a) and (b) the words “in section 226(2)” are omitted.(5) Subsection (4) is omitted.

8E (1) Section 222 (offenders aged under 18: certain violent or sexual offences) is amended as follows.

(2) In subsection (1), in paragraph (d) for the words from “section 221” to the end substitute “section 226(2) of the 2003 Act (as applied by section 221(2) of this Act) to impose a sentence of detention for life.”.

(3) For subsection (2) substitute—

“(2) Section 228(2) to (5) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for “section 228” substitute “section 228(2) to (5)”, and(b) in paragraph (a) for “subsection (2)(b)” substitute “subsection (2C)(b)”.(5) After subsection (3) insert—

“(3A) The power conferred by section 228(7) of the 2003 Act includes power to amend section 228(2A) as applied by this section.”

8F (1) Section 223 (the required opinion for the purposes of sections 219 to 222) is amended as follows.

(2) In subsection (1) for “219(2), 220(2), 221(2)” substitute “219(1), 220(1), 221(1)”.

(3) In subsection (2) for “section 229(2) to (4)” substitute “section 229(2) and (2A)”.

(4) In subsection (3) the words “to (4)” are omitted.

8G (1) Section 228 (appeals where previous convictions set aside) is amended as follows.

(2) For subsection (1) substitute—

“(1) Subsection (3) applies where—

(a) a sentence has been imposed on any person under section 225(3) or 227(2) of the 2003 Act (as applied by section 219(2) or 220(2) of this Act),(b) the condition in section 225(3A) or (as the case may be) 227(2A) of the 2003 Act was met but the condition in section 225(3B) or (as the case may be) 227(2B) of that Act was not, and(c) any previous conviction of his without which the condition in section 225(3A) or (as the case may be) 227(2A) would not have been met has been subsequently set aside on appeal.”8H In section 237 (purposes of sentencing), in subsection (3)(b)—

(a) for “to 222” substitute “, 221”, and(b) for “any of sections 225 to 228” substitute “section 225(2) or 226(2)”. 8I In section 256 (pre-sentence reports), in subsection (1)(c) for the words from “section” to the end substitute “section 219(1), 220(1), 221(1) or 222(1) (sentences for dangerous offenders).”

8J In section 260 (discretionary custodial sentences: general restrictions), in subsection (1)(b) for the words from “as a result” to the end substitute “under section 225(2) or 226(2) of the 2003 Act (as applied by section 219(2) or 221(2) of this Act) or as a result of any of sections 225 to 227 of this Act.”

8K In section 261 (length of discretionary custodial sentences: general provision)—

(a) in subsection (1) for “falling to be imposed as a result of section 219(2) or 221(2)” substitute “imposed under section 225 or 226 of the 2003 Act (as applied by section 219(2) or 221(2) of this Act)”, and(b) in subsection (3) for “required minimum sentences” substitute “ sentences that may or must be imposed”.8L In section 273 (review of unduly lenient sentences by Court Martial Appeal Court), in subsection (6)(b) for “section 219, 220, 221, 222, 225, 226 or 227” substitute “section 225(2) or 226(2) of the 2003 Act (as applied by section 219(2) or 221(2) of this Act) or by section 225, 226 or 227 of this Act”.”

177L: Schedule 35, page 317, line 43, at end insert—

“Restrictions on imposing community punishment8M In section 253(2)(h) (duties in complying with section 252) for “section 151(2) of the 2003 Act as applied by section 270 of this Act” substitute “section 270B(4)”.

8N In section 254(1) (savings for powers to mitigate sentence etc.) for “and 270” substitute “, 270 and 270B”.

8O (1) Section 270 (community punishments: general restrictions etc.) is amended as follows.

(2) After subsection (6) insert—

“(6A) The fact that by virtue of any provision of this section—

(a) a community punishment may be awarded in respect of an offence, or(b) particular restrictions on liberty may be imposed by a community punishment,does not require a court to award such a punishment or to impose those restrictions.”(3) Subsection (7) is omitted.

(4) In subsection (8)—

(a) the word “Accordingly” is omitted; and(b) for “151(2) of the 2003 Act as applied by this section” substitute “270B(4)”. 8P After section 270 insert—

“270A Community punishment available only for offences punishable with imprisonment or for offenders previously fined

The power to award a community punishment is only exercisable in respect of an offence if—

(a) a person who is guilty of such an offence is liable to imprisonment; or(b) in any other case, section 270B(4) confers power to award such a punishment.270B Community punishment for offender previously fined

(1) This section provides for the award of a community punishment by a court in respect of an offence (“the current offence”) committed by a person to whom subsection (2) or (3) applies.

(2) This subsection applies to the offender if—

(a) a person guilty of the current offence is liable to imprisonment,(b) the offender was aged 16 or over when he was convicted;(c) on three or more previous occasions the offender has, on conviction by a court for an offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine; and(d) despite the effect of section 238(1)(b), the court would not (apart from this section) regard the current offence, or the combination of the current offence and one or more offences associated with it, as being serious enough to warrant a community punishment.(3) This subsection applies to the offender if—

(a) a person guilty of the current offence is not liable to imprisonment;(b) the offender was aged 16 or over when he was convicted; and(c) on three or more previous occasions the offender has, on conviction by a court for an offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine.(4) The court may award a community punishment in respect of the current offence if it considers that, having regard to all the circumstances including the matters referred to in subsection (5), it would be in the interests of justice to award such a punishment.

(5) Those matters are—

(a) the nature of the offences to which the previous convictions mentioned in subsection (2)(c) or (3)(c) (as the case may be) relate and their relevance to the current offence; and(b) the time that has elapsed since the offender’s conviction of each of those offences(6) In subsections (2)(c) and (3)(c) “conviction by a court” means—

(a) a conviction by a civilian court in any part of the United Kingdom for a service offence or for an offence punishable by the law of that part of the United Kingdom; or(b) a conviction in service disciplinary proceedings.(7) For the purposes of subsections (2)(c) and (3)(c) a compensation order or a service compensation order awarded in service disciplinary proceedings does not form part of an offender’s sentence.

(8) It is immaterial for the purposes of subsections (2)(c) and (3)(c) whether on previous occasions a court has passed on the offender a sentence not consisting only of a fine.

(9) This section does not limit the extent to which a court may, in accordance with section 238(1)(b) and (2), treat any previous convictions of the offender as increasing the seriousness of an offence.

(10) In this section—

(a) “service disciplinary proceedings” means proceedings (whether or not before a court) in respect of a service offence; and(b) any reference to a conviction or sentence, in the context of such proceedings, includes anything that under section 376(1) to (3) is to be treated as a conviction or sentence.”

177M: Schedule 35, page 319, line 37, at end insert—

“Imposition of unpaid work requirement for breach of service community order or overseas service community order12A In paragraph 14(b) of Schedule 5 (modifications of Schedule 8 to the Criminal Justice Act 2003 as it applies to overseas community orders) , for “(3)” substitute “(3A)”.”

177N: Schedule 35, page 319, line 37, at end insert—

“Suspended prison sentences: further conviction or breach of requirement12B In paragraph 9(1)(b) of Schedule 7 (which provides for paragraph 9 of Schedule 12 to the Criminal Justice Act 2003, as it applies to an order under paragraph 8 of that Schedule made by a service court, to have effect with substituted sub-paragraphs (2) and (3))—

(a) in the substituted text of sub-paragraph (2), after “Part 12” insert “of this Act or under Part 2 of the Criminal Justice Act 1991”; and(b) in the substituted text of sub-paragraph (3), after “287” insert “of the Armed Forces Act 2006”.”

On Question, amendments agreed to.

Schedule 35, as amended, agreed to.

Clause 196 [Orders, rules and regulations]:

177P: Clause 196, page 141, line 12, at end insert—

“(2A) Subject to subsection (2B), a statutory instrument containing any order or regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(2B) Subsection (2A) does not apply to—

(a) a statutory instrument containing an order under section 201,(b) a statutory instrument containing an order under paragraph 26(5) of Schedule 1,(c) a statutory instrument containing an Order in Council under paragraph 9 of Schedule 27, or(d) a statutory instrument to which subsection (3) applies.”

The noble Lord said: This government amendment and the ones that go with it are minor technical amendments. The Bill as it stands does not make provision for a single statutory instrument to be made combining provisions that attract the negative procedure and provisions that attract the affirmative procedure. These amendments make provision for a single statutory instrument to be made combining provisions attracting the negative procedure and provisions attracting the affirmative procedure. The amendments make it clear that such a combined statutory instrument would require the affirmative procedure. I understand that this type of provision is not unusual.

I give an example from this large Bill. The provisions on violent offender orders that the Committee debated contain order-making powers, some of which require a negative resolution under Clause 150 and some of which require an affirmative resolution, for example under Clauses 157 to 160. It is conceivable that we might bring forward a single order relating to violent offender orders. Under these amendments, that entire order would be considered through the affirmative principle. I beg to move.

On Question, amendment agreed to.

177Q: Clause 196, page 141, line 13, after “containing” insert “(whether alone or with other provision)”

178: Clause 196, page 141, line 15, leave out paragraphs (b) to (h)

178ZZA: Clause 196, page 141, line 34, leave out subsection (4)

On Question, amendments agreed to.

Clause 196, as amended, agreed to.

Clause 197 agreed to.

Schedule 36 [Minor and consequential amendments]:

178ZA: Schedule 36, page 322, leave out lines 22 to 26

On Question, amendment agreed to.

178A: Schedule 36, page 327, line 28, at end insert—

“Criminal Justice Act 1987 (c.38)21A In section 1(17) of the Criminal Justice Act 1987 (application of Serious Fraud Office provisions to Northern Ireland), for “Attorney General for Northern Ireland” substitute “Advocate General for Northern Ireland”.”

The noble Lord said: This is a government amendment to put right something that was not done as it should have been in the Justice (Northern Ireland) Act 2002. It is the Government’s policy for the Advocate General for Northern Ireland to exercise superintending powers over the Serious Fraud Office in Northern Ireland following devolution of justice matters. The amendment gives effect to this policy.

I should take a minute to set out the background. The Justice (Northern Ireland) Act 2002, which some noble Lords present will remember well, prepared for the devolution of criminal justice matters in Northern Ireland by providing for the appointment of an Advocate General for Northern Ireland who would assume responsibility for matters relating to prosecutions that would not be within the competence of the devolved Administration. We intend that the office of Advocate General for Northern Ireland should be held by the Attorney-General for England and Wales for the time being.

Prosecution matters in England, Wales and Northern Ireland are, of course, currently the responsibility of the Attorney-General. The 2002 Act makes provision for the responsibility for prosecutorial matters in Northern Ireland to be removed from the Attorney-General and given either to the Director of Public Prosecutions for Northern Ireland or transferred to the Advocate General for Northern Ireland. However, the superintendence of the work of the Serious Fraud Office in Northern Ireland was inadvertently overlooked. This amendment ensures that the Advocate General for Northern Ireland exercises superintending powers over the Serious Fraud Office in Northern Ireland following devolution of justice matters. I beg to move.

On Question, amendment agreed to.

178AA: Schedule 36, page 330, line 31, leave out paragraph 39

178AB: Schedule 36, page 332, line 3, at end insert—

“(1) In section 83(6)(a) (notification requirements: initial notification) after “court” insert “or kept in service custody”.

(2) This paragraph extends to England and Wales and Northern Ireland only.

(1) In section 85(4)(a) (notification requirements: periodic notification) after “court” insert “or kept in service custody”.

(2) This paragraph extends to England and Wales and Northern Ireland only.”

178AC: Schedule 36, page 332, line 4, leave out “In section 133(1) (interpretation),” and insert “Section 133 (interpretation) is amended as follows.

(1A) In subsection (1)—

(a) ”

178AD: Schedule 36, page 332, line 6, at end insert—

“(b) at the appropriate place insert—““kept in service custody” means kept in service custody by virtue of an order under section 105(2) of the Armed Forces Act 2006 (but see also subsection (3));””

(1B) After subsection (2) insert—

“(3) In relation to any time before the commencement of section 105(2) of the Armed Forces Act 2006, “kept in service custody” means being kept in military, air-force or naval custody by virtue of an order made under section 75A(2) of the Army Act 1955 or of the Air Force Act 1955 or section 47G(2) of the Naval Discipline Act 1957 (as the case may be).””

178B: Schedule 36, page 333, line 36, at end insert—

“65A Section 233 (Offences under service law) is omitted.”

179: Schedule 36, page 335, leave out line 43 and insert—

“(1) The Armed Forces Act 2006 has effect subject to the following amendments.

(2) In paragraph 12(ah) of Schedule 2 (offences)—”

180: Schedule 36, page 336, line 3, at end insert—

“(3) In paragraph 1(2) of Schedule 5 (service community orders: general)—

(a) for “12, 13, 15, 16(5), 17(5) and (6)” substitute “13, 16(5), 17(6)”, and(b) after “21” insert “, 25A”.(4) In paragraph 10(2)(b) of Schedule 5 (overseas community orders: general)—

(a) for “12, 13, 15, 16(5), 17(5) and (6)” substitute “13, 16(5), 17(6)”, and(b) for “and 23(1)(a)(ii)” substitute “, 23(1)(a)(ii) and 25A”.”

On Question, amendments agreed to.

Schedule 36, as amended, agreed to.

Schedule 37 [Transitory, transitional and saving provisions]:

180ZZA: Schedule 37, page 339, line 4, leave out “sections 42 and” and insert “section”

180ZZB: Schedule 37, page 339, line 6, leave out “those sections come” and insert “that section comes”

180ZZC: Schedule 37, page 339, line 23, leave out “sections 43 and” and insert “section”

180ZZD: Schedule 37, page 339, line 25, leave out “those sections come” and insert “that section comes”

180ZA: Schedule 37, page 343, leave out lines 11 to 15

On Question, amendments agreed to.

Schedule 37, as amended, agreed to.

Clause 198 agreed to.

Schedule 38 [Repeals and revocations]:

180A: Schedule 38, page 351, line 41, column 2, leave out “Section” and insert “Sections 233 and”

180AA: Schedule 38, page 352, line 29, column 2, at beginning insert—

“In section 221— (a) in subsection (3)(a) and (b) the words “in section 226(2)”, and (b) subsection (4).

In section 223(3), the words “to (4)”.

In section 270— (a) subsection (7), and (b) in subsection (8), the word “Accordingly”.”

180B: Schedule 38, page 352, line 29, column 2, leave out “paragraph” and insert “paragraphs 218 and”

180BA: Schedule 38, page 352, line 47, at end insert—

“Courts-Martial (Appeals) Act 1968 (c. 20)

Section 16(5).

Section 25B(3).

Section 36C(1) and (2).

In section 43(1A), the word “or” at the end of paragraph (a).”

180C: Schedule 38, page 353, column 2, leave out lines 25 to 28 and insert—

“Section 7A(6).”

180D: Schedule 38, page 354, line 9, at end insert—

“Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8)

In section 1, the words “any blasphemous libel, or”.

Law of Libel Amendment Act 1888 (c. 64)

In section 3, the words “blasphemous or”.

In section 4, the words “blasphemous or”.”

180E: Schedule 38, page 354, leave out lines 10 to 12

180F: Schedule 38, page 354, line 27, column 2, leave out “In Schedule 1, paragraph 3.”

On Question, amendments agreed to.

Schedule 38, as amended, agreed to.

Clause 199 agreed to.

180G: After Clause 199, insert the following new Clause—

“Effect of amendments to criminal justice provisions applied for purposes of service law

(1) In this section “relevant criminal justice provisions” means provisions of, or made under, an Act which—

(a) relate to criminal justice; and(b) have been applied (with or without modifications) for any purposes of service law by any provision of, or made under, any Act.(2) Unless the contrary intention appears, any amendment by this Act of relevant criminal justice provisions also amends those provisions as so applied.

(3) Subsection (2) does not apply to any amendments made by Part 1.

(4) In this section “service law” means—

(a) the system of service law established by the Armed Forces Act 2006 (c. 52); or(b) any of the systems of service law superseded by that Act (namely, military law, air force law and the Naval Discipline Act 1957 (c.53)).”

On Question, amendment agreed to.

Clause 200 [Extent]:

181: Clause 200, page 143, line 4, leave out subsection (2)

182: Clause 200, page 143, line 25, leave out paragraphs (a) to (f)

183: Clause 200, page 144, line 3, leave out paragraph (c)

184: Clause 200, page 144, line 10, leave out paragraph (a)

184ZA: Clause 200, page 144, line 31, after “Act” insert—

“( ) section (Effect of amendments to criminal justice provisions applied by the Armed Forces Act 2006 for purposes of service law),”

On Question, amendments agreed to.

Clause 200, as amended, agreed to.

Clause 201 [Commencement]:

184A: Clause 201, page 145, line 13, at end insert—

“( ) section (Blasphemy and blasphemous libel) and the related repeals in Schedule 38;”

On Question, amendment agreed to.

Clause 201, as amended, agreed to.

Clause 202 agreed to.

In the Title:

185: In the Title, line 2, leave out from “defaulters;” to “to” in line 5

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.

National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008

rose to move, That the draft order laid before the House on 6 February be approved.

The noble Baroness said: My Lords, this draft order, covering additional learning needs, represents the first use of the powers conferred on the National Assembly for Wales under Section 95 of the Government of Wales Act 2006. This enables the National Assembly for Wales to seek legislative competence from the UK Parliament to make a new category of legislation, Assembly measures. These measures will be scrutinised by the National Assembly, just as Parliament scrutinises Bills.

The 2006 Act includes a number of safeguards to the interests of UK government in conferring legislative competence on the National Assembly. For example, measures made by the National Assembly have effect only in Wales and only in respect of the scope of the competence conferred. They cannot remove or modify functions of Ministers of the Crown without the consent of the relevant Secretary of State.

On 5 February, the National Assembly considered and agreed the draft order that is before this House and which, subject to the agreement of this House this afternoon and that of the other place next week, will give the Assembly the power to pass measures in the area of additional learning needs in Wales. The draft order will confer further legislative competence on the National Assembly in education and training, an area that has been largely devolved for many years. Welsh Ministers have wide-ranging powers across the spectrum of education and training, including in relation to schools, nursery schools, universities, further and higher education institutions and special educational needs.

The National Assembly also has legislative competence in many areas of education and training, conferred through framework powers in parliamentary Acts, as set out in Schedule 5 to the Government of Wales Act 2006, the latest version of which is attached to the Explanatory Memorandum that accompanies this draft order. Policy in this area of education has been developed in Wales on a collective, all-party basis; indeed, the draft order originated as a result of the report and recommendations of the National Assembly’s former cross-party Education, Lifelong Learning and Skills Committee. The draft order also reflects recommendations made by the Children’s Commissioner for Wales.

The principle of different educational provision is already well established in law and in practice in Wales. This draft order will enable the Welsh Assembly Government to bring forward measures for special educational provision for children, young people and adults with additional learning needs. It is also important to acknowledge the opportunities that this draft order offers to cover all age groups for lifelong learning, so that adult learners in the community, adult, work-based, further education and higher education sectors may also benefit.

The proposed order was considered by this House’s Constitution Committee, the Welsh Affairs Committee and a committee of the National Assembly for Wales. The scrutiny process has provided members of these committees and other interested parties, organisations and constituents with the opportunity to comment, question and suggest amendments. All the recommendations arising from the final reports of these committees have been carefully considered and the draft order laid before the House today reflects the outcome of that consideration.

Under the devolution settlement, the National Assembly has responsibility for special educational needs provision in relation to education and training, but without the legislative powers for it to legislate to change fundamental aspects of provision in this area. At present, the National Assembly has no powers to legislate to strengthen the status of the code of practice for special educational needs in Wales to ensure compliance. The current SEN code of practice provides practical advice to LEAs, schools and other key stakeholders on how to carry out their statutory duties in this area. It is, however, considered to have only weak legal force, as LEAs only have to have regard to it. This contrasts with similar guidance for social services, where established law means that authorities are expected to comply with such guidance.

There is also no statutory basis by which the National Assembly can consider making the current formal assessment of statementing less prescriptive. Although the Welsh Assembly Government have powers to make regulations about the operation of the statementing process, they are unable to make more fundamental changes to the structure of the statutory process, as this is enshrined in primary legislation. While it is too early to suggest in detail what changes might be necessary, this fundamental weakness was highlighted by the National Assembly’s former Education, Lifelong Learning and Skills Committee in its policy review of the statementing process. It called on the Welsh Assembly Government to seek the necessary powers to secure full legal competence for such statutory assessment arrangements.

A further limitation on a statutory level is that the National Assembly currently has no power to alter the range of individuals with the right to appeal to the Special Educational Needs Tribunal for Wales, including the right of appeal for children with sufficient understanding to exercise that right, in addition to the right of appeal for parents and carers. The Children’s Commissioner for Wales strongly urged that the Welsh Assembly Government should consider providing a right of appeal for children. He saw this as being particularly consistent with the UN Convention on the Rights of the Child, which underpins all the Welsh Assembly Government’s policies for children and young people. At present the right of appeal is limited to parents and carers of children and young people whose cases have been before the tribunal. It is important that there is opportunity for public consideration of such issues and that widespread consultation with key stakeholders takes place.

The granting of legislative competence on additional learning needs will enable the National Assembly to carry forward its policies and make a real difference to the lives of those Welsh learners, enabling them fully to participate in the many learning opportunities available within Wales. It will enable the Assembly to consider and scrutinise future legislation in this area and to tailor provision in line with Welsh needs. I commend the order to the House and I beg to move.

Moved, That the draft order laid before the House on 6 February be approved. 11th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

My Lords, I thank the noble Baroness for once again clearly laying out the details of this order. By and large, we support its whole thrust and our queries—or perhaps criticisms—are about the detail. There was some debate in another place over the definitions involved; overall, the order lacks a certain amount of focus. It is drawn up too broadly to enable it to carry out a specific function, which is what it is meant to be doing.

It might interest the noble Baroness, if she does not know already—I have asked her whether the Government will at some stage look at the Government of Wales Bill—that there are now 13 different ways of legislating in Wales. If she is interested, I have them listed on paper. It is quite a thought but it is a fact.

One of the key definitions is that of disability. I understand that the committee in another place recommended that disability should fall in with the description of the World Health Organisation. I believe—I have tried to find my way through all this—that that was discarded by the Welsh Assembly and the description of “disability” is still open in this order. There is also a question about the amendment to the 2006 Act. At the start of the order there is a phrase which leaves us completely in the air. I had intended to quote it and ask the noble Baroness how she interpreted it but my tag marking it has come off. I cannot find it; I apologise.

Other than that, I have little criticism. We believe that the definition of disability should be clearly linked to that of the WHO.

My Lords, we welcome this order. As a matter of historical significance, it is the first legislative competence order to go through the National Assembly and we welcome that from these Benches. The focus is of course on special educational needs. I want to raise two issues. The first, as the noble Lord, Lord Glentoran, said, involves the definition of disability and the second concerns transport, particularly to places of higher education.

The chairman of the Assembly Committee on SEN—this involves legislative competence in particular—is concerned about the definition of the word “communication”. The opportunity has been missed to define it more clearly. The provisions focus on the word “communication”, which, I discovered from reading some of the speeches made in the Assembly when it was considering the LCO, is the subject of some controversy.

The Assembly had a function of scrutiny, which it carried out, and it focused on the definition of disability. As the noble Lord, Lord Glentoran, said, there are different views on the word “communication” and whether it should be included in the order. The Welsh Assembly Government assume that the phrase “physical or mental impairment” automatically includes a communication impairment, but the National Assembly for Wales committee disagrees. The Welsh Assembly Government and the Welsh Affairs Committee of the other place think that the wording in the order is sufficient.

The Assembly was lobbied by a number of organisations. I have no doubt that they want to live in a perfect world and cannot always get what they want. I refer to the views of the Royal College of Speech and Language Therapy on the order. It states:

“We have been disappointed that the Welsh Assembly Government did not include communication impairment in the LCO as recommended by the Assembly Committee … Communication impairment is a difficulty in decoding or understanding what has been said and a difficulty in expressing oneself through the spoken word, for example a word finding difficulty, a chronic form of the ‘tip of the tongue’ sensation we have all occasionally experienced, which can go unrecognised and unsupported. Everyone has heard of dyslexia, ‘word blindness’ for the written word ... Few have heard of dysphasia, ‘word blindness’ for the spoken word”.

The royal college makes the point that two or three children in every classroom have communication impairment and 6 per cent of the population as a whole has communication impairment. It states:

“Those people have no special rights to support their impairment”,

at present. It states that there are means to improve the situation for those people, but that:

“Children using alternative means of communication such as sign language do not have the right to ask their school for help to let them use their special form of communication”.

It then mentions the whole problem of, and their difficulties in, communicating. It also makes the fascinating point that 70 per cent of people in prison have those sorts of problems. That means that we are talking about something extremely important.

I want to make one or two other points, which relate to paragraph 12 of the explanatory document—I thank the Minister for providing all these documents. That refers to a geographical limit to Assembly measures. It imposes a prohibition on Assembly measures having effect other than in relation to Wales. I agree totally with that as a matter of principle. However, in practice, there are some difficulties. Some children from Wales with special educational needs have either to attend or reside in establishments in England. I cite my experience as a Member of Parliament for a constituency, Brecon and Radnorshire, which has a very long border with England. This is a cross-border issue, in fact. We had a big problem in Shropshire with children from Powys going there and the same standards not being applied in Shropshire as they were in Wales. I would like the Minister to comment on a situation where a child, though normally resident in Wales, is not able to receive the good treatment and instruction included in this order because they are in an establishment in England.

I am certainly not satisfied with how far the settlement for devolution in Wales has gone so far, in that it is a hybrid. As a Member of Parliament, one could approach the organisations and the local authorities, in Shropshire for example, and communicate the problem. I note that in the order Assembly Members are not allowed to do that. In fact, the Assembly Members have responsibilities for SEN, so there is a problem, which I would appreciate the noble Baroness commenting on.

My Lords, I rise to strike a slightly more optimistic note than that already struck. I would like to celebrate today because this is the first such order to come before us since we took the legislation through to allow this. In my view, the scrutiny process has worked well; it is consistent with recognising the unique needs of people in Wales and it extends the competence of the National Assembly for Wales to meet those needs. It seems eminently sensible that the provision for those with special educational needs can be appropriately addressed, as recommended by the review of the committee in the National Assembly for Wales.

The order will ensure that those with special educational needs are protected from discrimination, and it also gives a right of appeal. It will remove the anomaly of the wriggle room that educational authorities have had, which has been confirmed in case law, to get out of spending on those with special educational needs.

I turn briefly to the scrutiny process. My view is that it has proven its worth. The Welsh Affairs Committee’s recommendations on the draft Order in Council, on the provision of travel arrangements for those in higher education and the extension of that to cover under-twos in nursery, have been incorporated. That process revealed the further problem of the Disability Discrimination Act 1995. Therefore, it has also resulted in modification of the legislative council order to allow provision for those diagnosed with a progressive health condition, such as a brain tumour, before the disability is manifest, rather than them having to wait until it is manifest and then be assessed. By that time, their disability has usually progressed further, and they are always playing catch up in relation to their needs.

The iterative process has worked well, too. Not all the recommendations from the Welsh Affairs Committee have been taken up. As the noble Lord, Lord Glentoran, said, the committee recommended that the WHO definition of disability should be used in the order, but that definition is very broad and neither Parliament nor the National Assembly for Wales have any control over it, so it becomes a catch-all.

The problem is that there is no specific definition for the types of disability that the Assembly may need to pass legislation for. Disability and need vary widely across the whole group, which is extremely heterogeneous. No specific definition is included in the order; that seemed to be the right decision because it leaves the National Assembly for Wales with some leeway and flexibility for the different situations that will arise.

The other recommendation from the committee related to the problem of communication, which was referred to by the noble Lord, Lord Livsey of Talgarth. The Welsh Assembly Government have taken the view that the words “physical or mental impairment” are in fact a catch-all. Those terms will include communication. I agree with that decision, and I will explain briefly to the House why I think it is helpful to have it as a broad catch-all.

Conditions such as dysphasia are due to a problem with central processing. We do not yet have very sophisticated imaging techniques to use widely on everyone presenting with word blindness, but I think that we will before too long. My guess is that we will find that within the speech area of the brain there is altered physical processing and that the physiology is not working as well as it should for one reason or another. Speech therapy can retrain the plastic brain—there is plasticity in neurones—to reform connections and to develop and find compensatory ways around a problem. That term “physical” would encompass it. Similarly, deafness is “physical”. You might want to say that because the dysphasia is in the central brain it would come under the catch-all phrase “mental”. I even have a concern about trying to separate “physical” and “mental” too widely, because I think that it is just that the science has not advanced enough for us to identify the physical component of the condition that manifests itself as a mental disorder.

As communication is absolutely key to all issues around consent in society, it is important that anything at all that impairs the ability to take in, process and weigh up information is considered, as well as anything that impairs the ability of a person to simply communicate. That is why it is helpful to have the much broader framework and not to separate it out as a separate class under the name of “communication”.

I hope that other noble Lords will join me in celebrating that a process—namely, the Orders in Council procedure—that we set up, and about which many were sceptical, has indeed been shown to produce an order that should be fit for purpose for Wales.

My Lords, the face of this statutory instrument in itself is Welsh history of a kind. It is wordy, but it is historic, and it is a first. It is a development arising from the context of the 2006 Westminster legislation that required London and Cardiff to work closely together and to trust each other. In itself, it is a straightforward order; it is bespoke and it is in coherent terminology. Of course, it is not law-making as such, but it grants a competence, and it is for the Welsh Assembly Government and the Assembly to make law and, in this instance, for local education authorities to implement it. That is the pathway, and it is full of good intent. It certainly demonstrates the collaborative capacity of Whitehall, Westminster, the Welsh Assembly Government and the Welsh Assembly to work together. Surely it augurs well for the future.

I rather think that an order entitled “Constitutional Law Devolution, Wales” is pointing to considerable future increases in the constitutional powers of the Assembly. I do not think that we should underestimate the long-term consequences of such orders. There are consequences for British governance and for our British constitution, as well as for our country of Wales.

Devolution in Wales and in Britain is getting more substantial by the day. I heard Professor Anthony King say the same in these buildings yesterday. Parliamentary power is being devolved across all of Britain. In the debating Chamber of your Lordships’ House one may consider where it might it lead and where it will end. Certainly, devolved Government in Wales is here to stay—it will not go backwards.

One recollects the difficulties encountered in the first referendum in 1979, which was lost. The noble Lord, Lord Roberts of Conwy, who is in his place, probably knows every nook and cranny of Welsh legislation for a whole generation. He was on the winning side then and I was on the losing side. The second referendum was secured by the narrowest of margins in the late hours, and it was the traditional narrow swing.

I support the principal purpose of the order. It surely presages the much-needed reform of children’s special educational needs in Wales. Our Minister in Cardiff, Jane Hutt, has a commitment to those with such needs and she is conscientious in her approach. All of us in public life know that our schools are under unique pressure to deliver on standards and targets. There have been advances but still the child with special educational needs in Wales—and elsewhere—often loses out. I dare say that none of us here can adequately imagine or quantify the miseries of the parents of such children; they will always worry. The Assembly is clearly determined to act.

I hope that the good intentions of this order are transmitted into practical advantages for every Welsh child with special educational needs. The Explanatory Memorandum, which is helpful, certainly gives that impression.

Finally, as the years pass, I expect the Welsh Assembly to accrue stronger powers. I do think it is fanciful to envisage genuine law-making powers in Cardiff within a decade. I am far from being sure whether the Mother of Parliaments foresaw that prospect, but here we are. The daily lives of the Welsh people are increasingly decided by the Welsh Assembly; I refer, for example, to the fields of housing, education and training, health and transportation. I cannot be sure what that means for Members of another place. I dare say that they have considered carefully the legislation. One thing is certain: the order certainly aims to do good.

My Lords, I, too, have been mainly interested in the process and passage of this first order under Part 3 of the Government of Wales Act 2006, which will enable the National Assembly to legislate and pass Assembly Measures relating to specific aspects of education and training. Like the noble Baroness, Lady Finlay of Llandaff, I think we have reason to be pleased with the pioneering procedure that has been followed, and I trust that equal care and diligence will be taken with similar orders that come before us in future.

This historic first order, although the substance is important in its educational and disability context, arose from legislative shortcomings found by the Assembly in the course of an in-depth examination of special educational needs. The subject matter was selected not, I am glad to say, for political or media impact but by policy considerations, and I commend the promoters for their integrity and restraint. Neither does the choice of subject suggest that there is an overwhelming demand in the Assembly and in Wales for a major programme—a veritable flood of legislation that can be met only by a referendum bringing Part 4 of the Act into operation and by full legislative powers for the Assembly. However, that may be a mistaken impression. I am told that there are more orders like this one on the way.

The order was subject to rigorous and effective scrutiny not only by the Assembly committee that dealt with it but by the Welsh Affairs Committee in the other place and by our own Constitution Committee. All this is admirably summarised in the very adequate documentation accompanying the presentation of the order. Of course, it all took time. The first draft was laid before the Assembly committee on 12 June last year, and I am sure that it will be June this year, at the earliest, before we have an Assembly measure to achieve the order’s objectives. Perhaps the Minister will assist us on the timing.

The question of the precise nature of the Assembly measure to be presented haunted the minds of some of the participants, notably Alun Cairns of the Conservatives and Janet Ryder of Plaid Cymru, in the Assembly’s hour-long debate on the order on 5 February. We too have asked similar questions about the propriety of giving legislative competence without knowing precisely what it will be used for. It is clear that the more detailed knowledge we have of proposed measures, the easier the passage of orders allowing them will be. However, what impressed me about the Assembly debate was the appreciation of the Minister, Jane Hutt, of the value of the process of examining the order as, “our opportunity”—that is, the Assembly’s opportunity—

“to demonstrate our maturity and confidence to handle these new powers”.

Jane Hutt paid tribute to Eleanor Burnham, who chaired the first scrutiny committee, and described it and her collaboration with the Welsh Affairs Committee in further scrutiny as “a steep learning curve”.

The good quality of the Assembly debate on the order was very reassuring. I do not propose to deal with the points of difference that arose in the course of scrutiny, except to say that they were sensibly and fairly dealt with. I happen to agree with the conclusions, and I am glad that the noble Baroness, Lady Finlay, agrees with me. Others who participated in the ensuing arguments may take a more controversial view when the order is considered in the other place.

I conclude with the request to Ministers at all levels to consider carefully the experience gained in the passage of this first order, to learn whatever lessons there are to be learnt and to seek future benefit from them. We have set a pattern here, and it seems to provide a good, if slow, start.

My Lords, like the noble Baroness, Lady Finlay, I come to praise this order. I do so because it meets the criteria that emerged from the exhaustive discussions we had on the Government of Wales Bill about how to assess or judge an order. Three elements emerged from those discussions—three criteria to test whether we should—or should not—approve an order. The first is whether there is proper justification for seeking such competence. It has been shown that there is overwhelming justification in this case; it derives from an excellent, painstaking and very sensitive review by the Education, Lifelong Learning and Skills Committee into this difficult, and in many cases distressing, area of special needs. Anyone who has had constituency cases—and many here like myself have had such experiences over 30 years or more—will know what angst and anguish is caused in the desperate search to find what is best for a child, for parents and for the local authority. There is the question of state-maintained schools and mainstream schools versus special schools and the issue of rights and tribunals. The painstaking and excellent work of that Education, Lifelong Learning and Skills Committee review, as summarised in paragraph 7.10 of the Explanatory Memorandum, perfectly justifies the extension of legislative competence into this field. So the first criterion has been qualified and very clearly justified in the best possible way.

The second criterion we agreed during the course of the Government of Wales Bill was that we should not be presented with wide, sweeping orders seeking competence in education—for example, the whole of secondary education or further education. The type of competence sought should be specific and clearly defined so as not to be a back-door method of acquiring legislative competence in the broad sense. This order meets that criterion. Besides the issue of disability, it is very specific and well defined in as much as it is confined to the issue of competence in relation to special needs. Therefore, it passes the second test. The accumulative capacity of the Assembly to legislate in education is pretty formidable. Given the statutory instruments, statutory legislation and framework powers from various Bills, plus this new legislative competence—and that which is in the pipeline on learning and skills—I would be interested to know from my noble friend what in legislative terms does not come under the competence of the Assembly in the field of education and learning.

The third criterion—I remember it being a fundamental issue for many of us—is that we do not want to be presented with these orders without proper prior legislative scrutiny. That scrutiny should be carried out primarily by the Assembly and the Welsh Affairs Select Committee, although this House would have a role of one kind or another. The process by which this order has arrived here is proof that that criterion has been well and truly met. The noble Baroness, Lady Finlay, was rightly impressed by the work of both the Assembly committee and the Welsh Affairs Select Committee and the response by the Welsh Assembly Government, who made amendments in the light of that process. The Government in Westminster should perhaps take a leaf out of their book. We sometimes unnecessarily dig in heels here. So the criterion of legislative scrutiny before an order reaches us has been adequately and well fulfilled.

Finally, I am a member of the Constitution Committee of this House. It decided that it would accept responsibility for a 12-month experimental period to look at these orders. We intend to use this period purely to decide whether an order is constitutional rather than to look at the content.

Defining the term “disability” seems to be the only issue to cause a measure of dissent. I find the Welsh Assembly Government’s case, in paragraph 9.6 of the Explanatory Memorandum, for not accepting a WHO definition quite convincing. It states:

“It has concluded that it would not be appropriate for the Assembly’s legislative competence to be determined by reference to a definition that neither Parliament nor the Assembly has any control over”.

As a passionate supporter of parliamentary sovereignty, I support that sentiment.

My Lords, I can be brief, as the points that I proposed to make have been made already, particularly in relation to the way in which this order meets the three criteria set out by my noble friend Lord Rowlands. I am happy to join other noble Lords in the celebration. I think that I shall join the noble Baroness, Lady Finlay of Llandaff, at the party she talked about. It was good to have her considerable medical experience applied to this order.

I welcome the order, but I particularly welcome the process. It is clear that the process in respect of this order has been enormously painstaking and lengthy, as the noble Lord, Lord Roberts, said. Perhaps one should not expect quite such a painstaking series of hurdles in future. In Wales, I suspect that there was always a temptation to be different for its own sake. Clearly, many special educational needs will be the same on both sides of the border. But the joy of the Assembly is that it has been able to experiment and, in a pioneering way, has lighted the path for others, such as with the Children’s Commissioner; it is good that he supports this.

Yes, I very much approve of the process. This is a first. This is not big-bang devolution, which many of us would have been concerned about. This is the British way of doing it: step by step and following the process. I believe that the Assembly and others involved have done us a great service. Clearly, we can now look forward to this same process being used in other ways. So, yes, I am happy to join the party.

My Lords, I am delighted to respond to an historic and celebratory debate and I hope very much that, in picking up some of the many questions asked by noble Lords, I will be able to continue in a celebratory tone.

The first question, on the definition of “disability”, was well addressed by the noble Baroness, Lady Finlay, and my noble friend Lord Rowlands, but perhaps I may say for the record that the Welsh Affairs Committee recommended that the order should contain a definition of the term “disability” and refer to the WHO definition and that the Welsh Assembly Government should have the power to change the definition, should that become necessary. As noble Lords will be aware, however, the term “disability” is omitted from the draft order following careful consideration. The Welsh Assembly Government decided against taking forward this recommendation, as my noble friend Lord Rowlands said. They concluded that it would be inappropriate for the National Assembly’s legislative competence to be determined by reference to a definition that was not within its control.

The noble Lord, Lord Livsey, asked about the inclusion of travel for higher education learners. As explained in the Explanatory Memorandum, policy in respect of travel to higher education institutions in Wales has traditionally been dealt with by way of grant-making powers, which are provided for in the Teaching and Higher Education Act 1998. It is not envisaged that that position will change. However, the Welsh Assembly Government have accepted the committee’s recommendation to the extent that a measure could make provision about the travel to and from higher education institutions. I believe that noble Lords have picked up on that example of how valuable the scrutiny process has been.

The noble Lord, Lord Livsey, also asked about communication. The noble Baroness, Lady Finlay, eloquently explained why the use of a broad definition could be so much in learners’ interests. For the record, again, the Welsh Assembly Government gave that recommendation careful consideration and are confident that the words “physical or mental impairment” would include communication impairment. Indeed, it would appear that to accede to the committee’s recommendation would have had the perverse effect of potentially casting doubt on the generality of the current formulation, which is specifically designed to be all-embracing. The noble Baroness, Lady Finlay, carefully explained that for us. It would be possible for the Welsh Assembly to pass a specific measure about communication difficulties, if it so wished, with the powers contained within the legislative competency order—or the LCO, as I was going to call it.

Cross-border implications, which the noble Lord, Lord Livsey, raised, are also important. Assembly measures, as the noble Lord rightly pointed out, can apply only in Wales and any measure that the National Assembly may make will apply to those in education and training who live in Wales, regardless of where that education and training takes place. If they are placed with an institution in England, it will have been assessed as appropriate for their needs in accordance with Welsh criteria. I hope that it is helpful to put that on the record.

The noble Baroness, Lady Finlay, was indeed celebratory, and I found her illustration of the need for a wide, all-encompassing term to be very helpful. I also felt reassured that she was celebrating the process and that she felt the process had worked well. The noble Lord, Lord Roberts, said that it is important that we should learn the lessons. This is the first order to come through in this way and I feel reassured that your Lordships have welcomed the process and been pleased with how it has worked. During the passage of the Government of Wales Act, there was much concern about how the scrutiny would work. With the help of noble Lords on the Constitution Committee, committees in the other place and the Welsh Assembly, we have been able to put the concept of rigorous scrutiny into practice.

The noble Lord, Lord Roberts, also asked when we might see the Assembly considering measures following this legislative competency order. It is fair to say that proposals for a measure will have to be considered in the context of all the requests for measures in the Welsh Assembly Government’s next legislative programme. However, as I know that the noble Lord was concerned about the time that all of that takes, the First Minister will make a statement on the legislative programme in June—so we will have news on the timing then.

My noble friend Lord Rowlands offered us reassurance from the perspective of the Constitution Committee, which I know has worked hard on the criteria by which it will consider these Orders in Council. I am delighted that it is prepared to put the work in on behalf of the National Assembly for Wales and for the successful implementation of the 2006 Act. I am interested that we are already, perhaps, hearing that the National Assembly might be giving lessons to the Westminster Government, and I imagine that that might continue.

My noble friend Lord Anderson joined in the celebration, but highlighted what was, for me, an important point; that this legislative competency is being devolved to Wales very much in a step-by-step process. It is about building confidence between all the parties involved—your Lordships’ House, the other place, the Welsh Assembly and the Welsh people—through a successful process in which there is rigorous scrutiny, transparency and an opportunity for all those concerned with the question of devolution in Wales to have a chance to have a say and make an input.

I will close by saying that the granting of legislative competence on additional learning needs will enable the National Assembly to carry forward its policies and make a real difference to the lives of those Welsh learners, enabling them to fully participate in the many learning opportunities available in Wales. As I said earlier, it will enable the Assembly to consider and scrutinise future legislation in this area and to tailor provision in line with Welsh needs.

On Question, Motion agreed to.

House adjourned at 6.31 pm