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Lords Chamber

Volume 717: debated on Monday 1 March 2010

House of Lords

Monday, 1 March 2010.

Prayers—read by the Lord Bishop of Bradford.



Asked By

To ask Her Majesty’s Government what is the latest quarterly figure for total unemployment in the United Kingdom; and what is the latest monthly total number of claimants of unemployment benefit.

My Lords, welcome as the reduction of some 3,000 in the overall ILO figure is, does the Minister agree that it has to be seen in the context of a 12,000 reduction in the total number of people in employment and a fall of 37,000 in the number in full-time employment—which is, I think, a record high figure? Does he agree that those figures and the 23,500 rise in the number of claimants hardly suggest that we are well clear of the recession and in fact augur rather badly for economic growth and the Government’s target of 1.25 per cent for this year, which is twice the EU forecast of 0.6 per cent?

My Lords, I do not accept that it augurs badly for economic growth in this country. There are now clear signs that the position in the labour market is stabilising—redundancies have fallen back significantly since spring of last year, fewer people made new claims for jobseeker’s allowance and the number of vacancies is also increasing. Indeed the number of people unemployed on the ILO definition is now close to flat and has, as the noble Lord identified, reduced a little. Although the claimant count rose in January, and there will always be variations from month to month, the number of people making a new claim—322,600—was the lowest figure for a year. There are still challenges ahead, which is why we must not hold back from the investment that the Government have put into a range of programmes. In particular, we must not divert resources from these programmes to inheritance tax cuts for the wealthy or, indeed, for the married couple's allowance.

Does the noble Lord agree that the fundamental problem is not only how many are employed or not employed at the moment but how many will be employed in the future? Does not the fundamental question concern where our AAA rating is on the global finance markets? If that stands, employment stands.

My Lords, of course employment is a very important issue. Before the recession we had the aspiration of an 80 per cent employment rate. As we have come through the recession, we have seen the first quarter of growth, at the end of last year, in a little while. We need to re-energise and refocus on making sure that we hit those employment targets, which is why I repeat that these things do not happen by chance; they happen because the Government have invested £5 billion in capacity for Jobcentre Plus for a range of measures to keep people in employment or to move them closer to the labour market.

Does my noble friend agree that it is a mistake to sell our country short when, in fact, unemployment in this country is significantly lower, and has long been lower, than that of many of our European competitors? Can we also bear in mind that a 0.3 per cent growth rate is higher than even the best prediction, which was 0.2 per cent? Should we not be at least a little welcoming of the optimism that feeds and drives the British industry that keeps the jobs and investment going?

Yes, my Lords; I very much agree with my noble friend. It is not just the growth rate at the end of last quarter: a number of surveys are showing improved confidence. He is right that if you look at the UK’s unemployment rate in comparison with the rest of the world, we have an unemployment rate that is lower than the G7, EU and OECD averages. We are at 7.8 per cent on the ILO measure. Canada is at 8.3 per cent, Italy at 8.5 per cent, the US at 9.7 per cent, France at 10 per cent and Spain at 19.5 per cent.

My Lords, I am sure the Minister is aware that this question is about real jobs that will sustain a recovery. He also talks of investment at a time when the car scrappage scheme is ending. How many jobs does he think have been saved by the car scrappage scheme, and how many will be lost by its abandonment?

My Lords, the car scrappage scheme was part of the fiscal stimulus that the UK economy has received—a fiscal stimulus which I think was opposed by the noble Lord’s party. I do not have the data on the precise number of jobs attached to the scheme, but he is quite right that we need to be about sustaining jobs so that people have not only employment but jobs that are sustainable and in which they can grow and flourish. If he looks at the vacancies that came out in the recent report, he will also see that manufacturing showed an increase of something like 23 per cent on the quarter. That is a good sign as well.

My Lords, does the noble Lord agree that we would not now be facing the need to make so many cuts, in jobs particularly, if all those who sat in this House and took the benefit of living in this country paid full British tax in this country?

My Lords, I am a great believer in the sentiment that the noble Lord has expressed. The ability of people to sit in this House when they claim to be non-domiciled and are not treated as ordinarily resident and domiciled in this country is a huge mistake—one which I think and hope we will rectify soon.

My Lords, can the noble Lord say what assessment he makes of women who would like a job but do not apply for jobseeker’s allowance and do not register as unemployed simply because of the job situation?

My Lords, I am not sure that we have much evidence for that particular assertion. As the noble Countess will recognise, because I think she was involved in our debates on the Welfare Reform Bill, there has been a lot of focus on helping people back into and closer to the labour market—particularly helping lone parents, most of whom are women—and on supporting them so that they can actually move into employment. If one looks at all the issues around poverty, one sees that the thing that makes the difference is people’s employment opportunities.

Finance: Debt


Asked By

To ask Her Majesty’s Government what action they plan to take to deal with unsolicited computer-generated telephone calls offering to resolve any and all debt and financial problems.

My Lords, organisations that use recorded phone messages to promote a product or service are required by law to comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003. Regulation 19 requires the caller who leaves a recorded phone message to ensure that they have obtained prior consent. Where a consumer receives a recorded message that they have not agreed to, this is likely to be a breach of the regulations. In these circumstances, consumers are encouraged to report such calls for further investigation to the Information Commissioner's Office, as it has responsibility for the enforcement of the regulations.

I thank the Minister for that Answer. Is he aware that the citizens advice bureaux have drawn attention to the 9,500 new debt problems and 8,200 new benefit problems every working day? The latest call I received said, “You’ll be able to work off 100 per cent of your debts in just 12 months. To see if you qualify to take advantage of this scheme and to have your entire debts written off then press 2 on your phone now”. I get these calls several times a week. Does he agree that the danger is that vulnerable people will be taken in by that type of message, and that the Government should at least issue warnings about it?

I agree with the noble Baroness. I, too, have had these calls, although I have not stayed on the line as long as she did—I have never got to the “press 2” bit. However, we share her concern about the situation. We realise that a significant number of people are struggling with their finances during the recession. Additional funds were poured into various funding activities: £10 million to support longer opening hours at 330 citizens advice bureaux; £5.8 million for the National Debtline to increase capacity levels on the helpline by 50 per cent, thereby enabling it to handle 220,000 calls a year; and £500,000 to develop a new self-help debt advice toolkit to empower people to negotiate with creditors and agree a repayment plan, thus freeing up more time for debt advisers to deal with people who are facing crisis debt problems.

My Lords, I shall slightly widen the noble Baroness’s Question. I appreciate that this may be slightly above the Minister’s pay grade, but will he undertake to ensure that during the election we do not have a repetition from the Labour Party of what happened last time, when I understand that many people received computer-generated telephone calls from John Prescott at 3.30 am?

The noble Lord should remember the saying, “Let him who is without sin cast the first stone”. In 2005, the ICO served enforcement notices against the Conservative Party and the SNP. In 2008, the ICO served an enforcement notice against the Liberal Democrats as they had breached the PECR by making unsolicited automated marketing calls to consumers who had not given their consent.

The noble Lord suggests that those who wish to complain should get hold of the Information Commissioner. Is it not about time that the Information Commissioner got off his backside and recognised that there are thousands of complaints out there already, and that he should do something about them?

The Information Commissioner initially warns companies informally that he will initiate formal action unless they cease to make such calls, which is usually effective and removes the need for formal action. Since 2005, the ICO has issued five enforcement notices. As regards unsolicited marketing calls, as opposed to computer-generated live calls, you can use the telephone preference service, which should stop these calls. Fifteen million people have registered for that facility and the number is growing.

Is my noble friend aware that I now live in mortal terror of getting an unsolicited computer telephone call from the noble Lord, Lord Razzall? Is there a publicity campaign to inform people about this admirable figure, the Information Commissioner?

I thank my noble friend. I cannot do much about the terror in which he lives, but I suggest counselling. We are active in terms of the Government’s other activities. The Ministry of Justice runs the Financial Inclusion Fund, the Financial Services Authority and Her Majesty’s Treasury are progressing their financial capability money guidance pilots, and Communities and Local Government is providing more help for consumers in difficulties via the mortgage rescue scheme. A number of government schemes are in process and there is a lot of publicity.

Can the Minister tell us how many unsolicited calls the Treasury has had to help with its debt and financial problems?

Does the Minister recall the opening sentence of Cakes and Ale by W Somerset Maugham to the effect that, when you have been out and on returning home discover that somebody has called you and that it is extremely important that you should call them back, you generally find when you do call them back that it is more important to them than it is to you?

I thank the noble Lord. As a Somerset Maugham fan myself, I could not remember that particular quote. In today’s circumstances, you would think “caller beware” before you answer all those calls.

Sure Start


Asked By

To ask Her Majesty’s Government how many Sure Start programmes were set up during the past year; and how they will be evaluated.

My Lords, during the period from January to December 2009, 472 Sure Start children’s centres were designated. The DCSF’s guidance to children’s centre leaders and local authorities contains an expectation that they should evaluate the effectiveness of their services. The national evaluation of Sure Start started in 2001 and last reported in 2008. The DCSF has recently commissioned an evaluation of the implementation and impact of the full range of children's centres; its first report is expected in late 2010.

My Lords, I thank my noble friend for that positive reply. Can she say how many Sure Start centres now exist in total and how the question of outreach to the most vulnerable groups is working? There has been concern about this—has it been addressed?

My Lords, we are on track to achieve our target of 3,500 Sure Start centres by this month; that is one in every community—a stark contrast to 1997, when there was none. The Government’s vision, built on experience and evaluation so far, is for outreach to be very much part of the work of Sure Start centres. It is in stark contrast to the policy of the party opposite, which I understand is committed to exchanging the work of outreach workers in favour of closing down some Sure Start centres; I think the figure is something like one in four.

In view of the announcements today about secondary school choices, can the Minister say what percentage of toddlers got their first choice of Sure Start centre? Does she agree that parents vote with their feet when it comes to evaluating Sure Start centres and that the best centres are very oversubscribed by the middle classes? What are the Government doing to ensure that the most vulnerable people get those places?

My Lords, my view is that 100 per cent of parents have been able to achieve their choice of Sure Start centre in their community with this Government’s vision because we are committed to ensuring that there is a Sure Start children’s centre in every community. That is a commitment to a universal service, which was achieved when we created a statutory footing for Sure Start centres in the ASCL Bill. We must ensure that we really drive through our commitment to Sure Start centres by ensuring that there is outreach to disadvantaged communities; we learnt at the start that many of the Sure Start centres in the disadvantaged communities were very conscious of excluding parents who were on their borders. That is not necessary. We also know that Sure Start centres in more advantaged areas are used by children from disadvantaged areas, and that is why it is so important that we have a universal service.

My Lords, perhaps I may ask for clarification. The Conservative Party supports Sure Start centres but it wants to ensure that they respond to the needs of the most vulnerable and poorest families in this country. Following on from the Question of the noble Baroness, Lady Massey, what has happened to the extra £79 million for outreach workers? Has it been used and are there such workers in all Sure Start centres?

Let us be absolutely clear about the Conservative Party’s commitment to Sure Start centres. As I understand it, it is about taking funding from Sure Start and putting it into other priorities. The shadow Chancellor could not confirm that that was not the case, so let us be clear about Conservative policy here.

My Lords, I understand the sentiment behind my noble friend’s Question but is it not the case that if Sure Start schemes were confined primarily to the vulnerable and the disadvantaged, they would become stigmatised and, as a result, children in those groups would not use them?

I absolutely agree with my noble friend. We have to recognise that Sure Start centres have a great deal to offer every single community. By offering a universal service, we support families from both disadvantaged and affluent backgrounds, but it is the best way of reaching those who would not otherwise access these services.

My Lords, I welcome what the Minister has said but does she not agree that, if we are to answer industry’s need for numerate and literate young people, we must invest earlier than we do? Is it not counterproductive to invest so much in getting young people in the 14 to 19 age range to read, write and count properly when we know that good early years—pre-school and primary—education will be much more effective in ensuring the workforce that we need?

I believe that the noble Earl’s analysis is right. We on this side of the House are saying that we have to invest in Sure Start and that it is not an either/or situation. We see the benefits of investing in Sure Start come through the system, with children who are more ready for school and who display better behaviour, and parents who are more equipped to cope with the challenges of a modern society. We see these benefits coming through the system and, in time, with another Labour Government we will see a much better outcome for 16 to 19 year-olds too.

My Lords, is the Minister confident that Sure Start coverage is as she describes in rural areas, where population density is much lower? I do not believe that the ability to access Sure Start is as good in those areas as she has led us to believe.

The noble Baroness touches on a very important point. As we have made clear in the guidance that we have made available, we have to be careful that in rural areas local authorities have the flexibility to look at different kinds of models. Essentially, a Sure Start centre in every community must be the aspiration but, if a local authority can find a better way of meeting the needs of its service users in a rural community, we have to listen to that.

My Lords, will the Minister define “community” for us all, and will she say how many Sure Start programmes are based in rural areas?

My Lords, I shall have to write to the noble Baroness about the number of Sure Start centres in rural areas. However, it is clear that we know what a community is. It is a place where a reasonable number of parents have reasonable access to a children’s centre, and you will also find there a community school, a children’s centre and possibly a walk-in centre. These are all facilities that a Labour Government are committed to promoting.

My Lords, in view of the great success that there has clearly been in recruiting staff at Sure Start centres, including outreach workers, are there any lessons to be drawn about recruiting social services and social care staff in general?

My Lords, we must always be committed to learning the lessons. We know that there are significant pressures on children’s social services—I think that that is what the noble Baroness is referring to. Working in a Sure Start children’s centre can be a very positive experience and we should be learning from the training that is made available from the interaction with parents and making sure that those lessons are learnt across children’s services.

St David’s Day


Asked By

To ask Her Majesty’s Government what consultations they have held about declaring 1 March, St David’s Day, an official Bank Holiday in Wales.

My Lords, I begin by wishing the noble Lord, Lord Roberts, and our compatriots a very happy St David’s Day. No such consultation has taken place, but I must stress that, for the people of Wales and for Welsh people all over the world, the absence of a public holiday on St David’s Day has not diminished the appetite to celebrate 1 March in style and with pride.

My Lords, I think that I thank the Minister for that Answer on Dydd Gwyl Dewi, which is Welsh for St David’s Day. However, we have almost without exception the fewest public holidays of all the countries of the European Union. When we look to have a new public holiday, could we give priority to the national days of Scotland, Wales and England? St Patrick’s Day is already a bank holiday in Ireland, of course. Will the Minister initiate consultation soon with the devolved Administrations so that, when another opportunity comes to have a public holiday, we can move immediately, without any hesitation, to ensure that Wales, Scotland and England have their national holidays?

My Lords, bank holidays have to be established on the basis of consultation because they reflect the work-life balance, on which this Government have a proud record. It will be noted that we now have five and a half weeks of statutory entitlement. I bring to the attention of the noble Lord the fact that any decision on St Patrick’s Day is for a totally different country and Administration. As far as Britain is concerned, the position is clear: the Scots decided to opt for St Andrew’s Day; the Welsh Assembly Government have not as yet made a bid in the present programme for a public holiday for St David’s Day. If such a bid comes forward, we will consider it.

My Lords, does my noble friend agree that the noble Lords, Lord Roberts of Llandudno and Lord Roberts of Conwy, rather than being concerned with the unemployment figures and bank holidays on St David’s Day, would be better advised to look at the latest opinion polls?

My Lords, I thought that there was cause for much celebration today, but for some of us opinion polls are always attended to with some degree of scepticism and doubt. If there was cause for celebration in some parts of the House, that probably took place earlier than today.

My Lords, is the Minister aware that the noble Lord, Lord Roberts of Llandudno, might be well advised to have a holiday in the Lebanon? When I was posted in Beirut, many years ago, it was reputed to have more national and religious holidays than any other country in the world.

My Lords, the UK does not compare well on bank holidays with other countries—the noble Lord draws the attention of the House to a particular illustration—but we do not do badly on holidays as a whole in comparison with others.

My Lords, if there are to be more holidays in the land of my fathers, which I personally would welcome, might it be wiser not to make them bank holidays? Most of us feel that holidays are not the appropriate thing for the banks at the moment; they should be working rather harder to pay us back all the money that we have lent them.

That is a very interesting point. Almost the only thing that the banks are associated with favourably at the moment is bank holidays, but we ought to bear in mind the point that the noble Lord has made. I think that the noble Lord, Lord Roberts, is emphasising that there is an enthusiasm in Wales and among Welsh people everywhere to celebrate 1 March, as I think the Welsh do.

My Lords, is the Minister aware that in the Bank Holidays Act 1871 it was wisely provided that additional days could be added to the original list by royal proclamation? This power was used to add St Patrick’s Day in 2003 and the successor to the original Act was used to add St Andrew’s Day in 2007. Does the Minister think that, after all this time, it would at least be worth consulting the people of Wales on whether they would like a national day to be celebrated by a bank holiday in accordance with the practice elsewhere in these islands?

My Lords, I emphasise, with the most apposite example, that St Andrew’s Day is not an additional bank holiday; it is a substitute for another holiday in Scotland. If the Welsh Assembly chose to go down that route, we would look at the issue very seriously, but in the bid for legislation this year the Welsh did not ask for that power.

My Lords, may I endorse, with great pleasure and with humility, the candidature of St David? He was a British-born saint who lived all his life among his people, which is a record not shared by all his saintly colleagues.

The history of the saints throws up some interesting illustrations, but I am happy to testify to the authenticity of St David.

My Lords, if we believe in devolution, should this decision not sensibly be left to the National Assembly?

My Lords, it is in one sense but, at the moment, this requires primary legislation. If the Welsh want to make changes, they need to make representations for the British Government to consider against the background of the other factors involved, which I have mentioned. I am merely saying that the Welsh Assembly Government have not made a submission thus far.

Third Parties (Rights against Insurers) Bill [HL]

Third Reading

Bill passed and sent to the Commons.

Personal Care at Home Bill

Committee (2nd Day)

Clause 1 : Free provision of personal care at home

Amendment 21

Moved by

21: Clause 1, page 1, line 22, at end insert—

“( ) make provision for those persons eligible for, or in receipt of, the free provision who are also deemed eligible for NHS continuing care”

I have tabled this amendment to ask the Minister questions about the potential for dispute in the way that the provisions of the Bill are implemented. My main questions centre on the interface between personal care at home and NHS continuing care.

The number of people currently in receipt of continuing care from the NHS is roughly 45,000. It is likely, although I confess that I have no figures to support this, that a high proportion of those people will be assessed as being in critical need of personal care under the FACS—fair access to care services—definition. The FACS guidelines, which are currently the subject of revision, set out the criteria for determining a person’s level of need, the four categories being “low”, “moderate”, “substantial” and “critical”. As we know, the Bill is designed to cover only those in critical need, and then only those who require substantial help with four or more activities of daily living.

The Minister will know that NHS continuing care has provided a field day for lawyers over the past 10 years. A senior lawyer described it to me the other day as a sub-specialisation in the field of litigation, such are the quantity of challenges brought by patients, and also very often the families of patients, against decisions taken by the NHS about eligibility. With this Bill, we have in prospect another dimension of this type of challenge, one in which the NHS itself is likely to argue that at least some of the burden of looking after people in their own homes should be borne by local authorities. The assessment process is set to become even more fraught than it has been up to now. We can envisage local authorities resisting the idea of providing someone with free personal care at home and directing them instead towards residential accommodation with additional nursing, while at the same time the PCT will resist that idea and argue in favour of personal care in the home with little or no nursing element. Somehow, there will have to be protocols to deal with this type of situation.

Of course, we all, I am sure, subscribe to the idea of pooled budgets, but that will not of itself get round the potential for disputes. If we look at the draft regulations and at the list of qualifying services that are to be the basis for determining whether someone’s needs are critical, we see that they include,

“eating or drinking (including the administration of parenteral nutrition)”.

I am surprised to see the administration of parenteral nutrition classified as personal care. In hospital, parenteral nutrition is almost invariably overseen by a qualified nurse as it is classed as a form of medical treatment. Similarly, the list includes washing and bathing. It would be helpful if the Minister could say whether this means we have finally overcome the arcane distinction between an NHS bath and a social services bath. If we have, I am quite surprised, because underneath that example of what sounds like a daft distinction lies a substantive issue in terms of the degree of care and skill required to give a bath to one patient as compared to another.

Similarly, oral care is included as a qualifying service for personal care. Certainly, some oral care will be quite straightforward and will not require a nurse, but will this always be the case where a person has some medical complication relating to their mouth, gums or teeth? Equally, in the list of so-called activities of daily living, we find management of treatment which consists of a prescription-only medicine. I agree that a care worker is perfectly capable of reminding a frail, elderly person that it is time to take their medicine. That is not a nursing task. But things become more difficult if we imagine a confused elderly person who takes a different combination of different pills at different times of the day. The level of responsibility required in a care worker to ensure that the right number of pills are taken at the right times of the day is considerable. This is the kind of thing which, in hospital, only a qualified nurse would do. I worry that we may be creating a potential minefield here, in terms of where responsibilities will lie, as between the NHS and local authorities. In many ways, it is helpful to define in black and white what we mean by personal care, but the other side of the coin is the scope that is created for arguing over what is meant by the various terms listed in the regulations. It is on that point, in particular, that I should be glad of any reassurance from the Minister. I beg to move.

My Lords, my Amendment 23, which is grouped with Amendment 21, was tabled for exactly the same purpose as that of the noble Earl.

After I tabled it last week, some individuals in my other working life, who did not know who I was and did not know that I had anything to do with your Lordships' House, happened to have a conversation which I simply sat in on and observed. They were all workers for a voluntary organisation who have had experience of assisting older people with the process of assessment for continuing care. They were trying to establish between themselves—they came from three different areas—whether there was any consistency at all in the decision-making processes to which they had been party.

What set my mind particularly to this matter was the description of an elderly man who has multi-infarct dementia, is blind, cannot walk, is doubly incontinent, has lost the ability to swallow and therefore has to have all his food made for him and pureéd. He is not eligible for NHS continuing care. That sparked a discussion about what NHS continuing care is. I do not know whether this is right, but I am interested in the point made by the noble Earl and in these care workers’ distinct impression that only when someone has to be peg-fed do they have a remote chance of being considered for NHS continuing care and that that must be but one of their conditions; there must be others, too. I, too, want to know how the criteria for this care, which will be the new revised version of FACS, will work alongside NHS continuing care. Will the Minister tell me for how long on average the 45,000 people who receive NHS continuing care have received it? I am trying to gauge how ill someone has to be to be eligible under the criteria.

The Bill is an amendment to the Community Care (Delayed Discharges etc.) Act. So far as I can see in all the debates in another place and here, one issue has not been the subject of any discussion at all, which is rather surprising. When that Act was introduced back in 2003, it introduced intermediate care—an entitlement of six weeks’ intensive care which elderly people are supposed to be given to enable them to be discharged from hospital when their medical needs have been attended to. The Bill was introduced with £900 million of funding behind it. I have a series of questions to ask the Minister today. I warned her that I would because it is quite important that we do so.

When the Act went through Parliament, I asked a series of questions about how it would work. The noble Lord, Lord Hunt of Kings Heath, gave the assurance that there would be a target; by March 2002, at least 220,000 people would be in receipt of intermediate care, over and above the baseline for 1999. The figures that I have been able to find show that, by the end of 2003, 143,000 people were being given intermediate care. How many people—in the last year for which there are figures—are in receipt of intermediate care, and how many of them received it at home? I ask that for two reasons. First, the term “intermediate care” seems to have disappeared somewhat. I am beginning to pick up on cases in which carers are being told that their relatives are not eligible for intermediate care because they have dementia and so there is no possibility of them improving. There are specific criteria for eligibility for intermediate care, and the Bill proposes three different assessments of a person to determine what sort of care they are eligible for, where they should receive it and for how long. I really would like the Minister to answer this in some detail.

I am concerned that people are going to find themselves deemed to have met one of the FACS critical criteria, but are not deemed to need assistance with daily living because they have a carer to help them, and therefore they are going to be fobbed off. Is the decision support tool, about which the noble Baroness the Minister talked last week, going to have a consistency across all three of these assessments—NHS continuing care, intermediate care and personal care at home? Further to that, can she say when the fast-track process will be brought into play?

Finally, to pick up on the point made by the noble Earl about the potential for local authorities to challenge NHS continuing care decisions that may force people back on to the personal care at home regime, for which the NHS will not be liable to pay, can the noble Baroness say how many PCTs and local authorities have a named lead officer for NHS continuing healthcare funding issues? Increasingly there is the potential for older people and their carers to be stuck between PCTs and local authorities which are in dispute about eligibility. If cases such as the one that I just mentioned are deemed to be ineligible for NHS continuing care, we are into an area of decision-making that is going to be so fine that it is going to take a fair amount of experience on somebody’s part to make those judgments with any kind of consistency and lack of bias, so that people are not unfairly dealt with and so that we do not set up yet another lawyers’ charter.

I am asking a very simple thing—how can the policy behind this Bill be implemented in such as way that it does not cause confusion times three, but instead provides clarity and consistency between three different instances of decision-making. I should very much welcome some guidance from the Minister on that.

My Lords, the noble Earl has illustrated very well how there may be confusion, and so has the noble Baroness. It will be even worse if the person needing care falls between two stools and gets no care at all.

My Lords, I had not intended to speak on this. However, the eloquence of the noble Earl, Lord Howe, took me back to my days as a director of social services, when we policed the boundaries with the NHS, and it equally policed those boundaries, with great vigour in the 1980s and 1990s. A serious issue for the Government, which is made worse by this Bill, is the way that at a time when we are saying we want to take down this Berlin Wall, we have created, with the best of intentions, a whole range of areas with scope for more disputes between health and social services. They all had a good reason at the time—intermediate care, continuing care, and now free personal care at home. I wonder whether the Government know how many people are now engaged in these various assessments, how those numbers will be increased by this Bill, and how many people are being diverted from providing care to patients and service users in the area of carrying out assessments and policing those assessments in order to see that their particular organisation is not disadvantaged financially.

If things have been bad at a time when finances are generous on both sides of the Berlin Wall, they are about to get much worse. There seems likely to be a climate where policing of people’s responsibilities organisationally and financially will increase. I ask the Government to think through this much more carefully—I think that it has been considered—and to have a serious discussion with the directors of adult social services about the number of people now entrenched in this work, which is not of great use for the provision of services to people who need them.

My Lords, I shall speak first about continuing care and what it means generally, for people sometimes have different interpretations of the term. “Continuing care” is a term for care provided over an extended period to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. The term covers both NHS and social care services.

“NHS continuing healthcare” means a package of continuing care arranged and funded solely by the NHS. A person is eligible for NHS continuing healthcare if their primary needs—their main needs—are health needs. All primary care trusts and local authorities in England follow a common process to determine eligibility set out in the National Framework for NHS Continuing Healthcare.

In the third quarter of 2009-10, 50,000 individuals across England were eligible for NHS continuing healthcare, and the number of eligible people continues to increase. However, it is important to recognise that if an individual needs continuing care where their primary needs are not health needs, this will be provided by the local authority, either alone or in partnership with the NHS where appropriate. It is right that, in those circumstances, they should be able to receive personal care free of charge from the local authority if they qualify for it. It is important that NHS continuing healthcare and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.

It is vital that people do not fall between the health and social care systems. We need to be very clear in guidance that those with continuing needs get the appropriate services, whether that is health or social care. While the number of people who receive NHS continuing healthcare at home is small compared to people receiving NHS continuing care in residential care homes, there are some people at home who meet the criteria.

We will ensure that the guidance we produce will address the need for primary care trusts and councils to work together to try to ensure a smooth interface between NHS continuing healthcare and free personal care, and that people’s needs are identified appropriately.

Amendment 21 would appear to allow regulations made by the Secretary of State to make specific provision for people who have been deemed eligible for NHS continuing healthcare also to be considered for eligibility for free personal care. The amendment is unnecessary. Where people are deemed eligible for NHS continuing healthcare, the NHS is responsible for providing for all their assessed needs, including personal care if that is part of the overall need. As such, they would not require such free personal care from their local authority because they would already be receiving it for free.

Amendment 23 would exempt a local authority from providing personal care free of charge to a person who is eligible for or receiving continuing care. As I have explained, “continuing care” can refer to either health or social care services. If an individual needs continuing care, they may require services both from National Health Service bodies and from local authorities. Local authorities should be able also to provide free personal care to such people if they qualify for it.

However, if an individual is entitled to services as part of NHS continuing healthcare, the person’s package of care to meet their assessed needs would be provided solely by the NHS and not the local authority, including any personal care that was required.

It is important that NHS continuing care and free personal care are recognised as different means of providing health and social care support across the NHS and social care systems. In all cases where it appears to a primary care trust that there may need to be NHS continuing healthcare, the PCT has a duty to take reasonable steps to ensure that an assessment of eligibility for NHS continuing healthcare is carried out.

It seems to me that the Bill and the explanation that I have given are clear about who pays what. What I believe the noble Earl, Lord Howe, and to some extent the noble Baroness, Lady Barker, were saying is that there may be problems at the interface. We recognise that, and we have already said with respect to the home care that is envisaged as a result of the Bill that we will be issuing very clear guidance. The whole issue of the guidance relative to intermediate care will be covered by my noble friend Lady Thornton as part of the next group.

It remains for us to continue to be content that the national framework qualification for NHS continuing healthcare is developed in a way that is clear, to reduce any interface problems. In October 2007, the Department of Health introduced a national framework for assessing individuals’ eligibility for NHS continuing healthcare, replacing the 28 local frameworks previously used by the NHS. A revised version of the national framework was issued in July 2009 to further develop best practice.

A key intention of the national framework was to reduce variations in eligibility for NHS continuing healthcare between PCTs. The data collected show that the variation has reduced significantly since the national framework was introduced.

In addition, all strategic health authorities have developed benchmarking processes that give them detailed information on the numbers eligible in each of the primary care trusts in their area. They are using this to help identify the causes of any variations and the actions needed to address them.

It is a fair comment that we must get the guidance right in all three areas. We are committed to doing so, and we have shown action with regard to this particular area of NHS continuing care.

I hope, on the basis of what I have said, that the noble Baroness and the noble Earl will not press their amendments. They both asked a number of detailed questions to which I am afraid I will not be able to give instant answers. I will look at Hansard to see whether there is some useful detail we can add in writing.

My Lords, this has been a useful short debate and I am grateful to everybody who has taken part, not least to the Minister for his full answer. I found his answer partly reassuring, but we should listen very carefully to the noble Lord, Lord Warner, whose experience in these areas is probably unparalleled among those of us present. He is right. An awful lot of energy and effort are going to be devoted to shoring up a Berlin Wall, and that effort could more productively be devoted, as he rightly said, to looking after people.

Having said that, I very much welcome what the Minister had to say about the guidance. I think it is quite important that the guidance goes into some detail to remove some of the potential ambiguities in the terms that are to be used in the regulations. Even if the terms that I have seen in the draft regulations are tightened up, I am sure that there will still be scope for argument. The detail really does matter here. This is an area which all of us will follow with a lot of interest, but for now I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendments 22 and 23 not moved.

Amendment 24

Moved by

24: Clause 1, page 1, line 22, at end insert—

“( ) require local authorities and primary care trusts to work together to assess a person’s needs and deliver a package of personal care which is designed to maximise the person’s ability to live independently”

The Bill aims to introduce reablement or intensive support for people who need home care for the first time, which might be following a period of ill health or a stay in hospital. We know that the Department of Health will issue separate guidance to cover what a reablement package can include. The consultation suggests that this might be physiotherapy, occupational therapy or the installation of telecare or adaptations to the home. People with dementia are significant users of both health and social care. My amendment would encourage NHS and local authorities to have joint responsibility for delivering a health and social care package that could maximise the ability of a person to live independently after, for example, a stay in hospital. I am speaking briefly, as much has already been said on these issues.

Amendment 34 would ensure that the possibility of reablement is offered to people with dementia, who, as we know, are more likely to stay in hospital for longer than others who go in for the same procedures—the Alzheimer’s Society report Counting the Cost, which was produced last year, revealed that people with dementia stay in hospital far longer than those who go in for exactly the same procedure. The longer people with dementia stay in hospital, the worse the effect of the symptoms of dementia and the individual’s physical health. Discharge to a care home becomes more likely and anti-psychotic drugs, as we know, are more likely to be used to manage behavioural symptoms. I am concerned that people with dementia may be wrongly excluded from reablement because of the erroneous view that they might not benefit. The amendment would highlight the relevance of reablement whenever possible for people with dementia.

I shall speak briefly to Amendments 26 and 28 standing in my name and the names of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. Amendment 28 is simple: it would replace “maximise” with “improve”. “Maximise” is the sort of word that should not appear in legislation; it suggests that we should do this whatever the cost, even if it is infinite, which in some cases it could be. “Improve” would be perfectly valid in this context and it would improve the legislation.

Amendment 26, which is the more important of the pair, is very much a probing amendment, as I want to explore the Government’s thinking. Everybody is in favour of re-enablement. There is no question but that it is a good thing—the more it can be done successfully, the better. However, the Bill is drafted in such a way that, if an elderly person is not willing to accept a programme for re-enablement, their free personal care can be withdrawn. That kind of thing is quite common in social policy these days, in the same way that if an unemployed person refuses to take a job their allowance can be withdrawn. That is not always wrong, but I am a bit concerned about what this might mean in practice.

Re-enablement may not be an easy process for the person undergoing it. Physiotherapy can be painful to anybody of any age, but for someone in later life it may be difficult to tolerate. I do not like the idea that a local authority can say, “You get on and do your exercises, Mrs Jones, or we’ll take away your free personal care”. That is not the kind of relationship that should exist as a result of such legislation. What guidance will the Government offer to prevent this from being used as a heavy-handed tool to bully old people into doing things that may be on the edge of or beyond what they are capable of, rather than as a tool for encouragement and mutual working together?

I added my name to Amendments 26 and 28. It is important for us to explore this discretionary activity around reablement and how it will be implemented. This is also our opportunity to look at the Government’s thinking on reablement. I hope that the noble Lord, Lord Lipsey, will not mind me teasing him for a moment, but I find it interesting that he called it “re-enablement”. That is because he cannot find “reablement” in the dictionary either. It does not appear in any dictionary yet; the term has been developed within social services to talk about rehabilitation. I cannot think of a single way in which it is different, but I will come to the cultural aspects of why it is called something different, because that is important.

This is exactly what intermediate care was set up to do. Again, therefore, I am afraid that there is extraordinary confusion. It is a bit like the difference between a social care bath and an NHS bath. It is not just the bubble bath that goes in from social services; the question is who delivers it and what the philosophy is. That is also the issue with enablement—I am sorry, I mean “reablement”, which is the word that will go into the dictionary eventually.

I know that the wording of Amendment 26 is probably the reverse of what is desirable, so I will save the Minister the effort of responding to the wording. I am as keen as anybody that there should be the opportunity for people to have a professional assessment to see whether there is room for improvement and to provide interventions in the physical and social environment that will allow people to function as well as they possibly can. I am worried, however, about how this discretionary intervention will be exercised in practice, particularly in relation to the concerns that were expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, on the previous set of amendments. The opportunities for confusion, for swapping around and for the exercise of discretion as to who pays for what and who does what are really quite frightening. As the noble Baroness, Lady Greengross, said, the problem arises in particular in relation to those with dementia, perhaps when they come out of hospital and are assessed for the first time, when there will be opportunities for toing and froing between authorities about who is going to do what.

The reablement approach is interesting, because it was developed with the sense of a restorative and capacity-building approach to improving the lives of disabled older people. It is as much a philosophical and cultural approach as a specific technique—not doing things for people, but assisting and doing alongside. However, one has to admit that there are at the moment no long-term studies that have demonstrated its efficacy over the longer term for people with a level of disability who will be the recipients of the free personal care. We are talking about a seriously disabled group of people. All successful studies have used very high levels of intervention. The Government’s short-term studies are encouraging for people of all ages and show that one can achieve a small but significant reduction in the use of personal care services. However, it is important to note that the studies in the care services delivery efficiency programme focused not only on those practical aspects of daily living that are the subject of this Bill but on much broader criteria of success. The interventions were often for longer than six weeks and for far more hours than is being proposed here. In fact, the cost of those successful schemes was more than what has been allocated for the reablement process.

I suppose that a purist would point out that it is rather bizarre to implement reablement intervention as a prerequisite for receiving assistance, when the long-term studies currently in progress have not reported yet. We know that schemes are nearly always successful in their pilot phases, but long-term sustainability and cost-effectiveness may be difficult to predict. Given how often I have personally pushed for things to be rolled out when there is some indication of support, I have some sympathy with the Government in wanting to do this. However, we should realise that reablement has so far been shown to be effective on, for example, mentally alert people who, after a short stay in hospital with a fractured femur, are coming out and need to get their confidence back. In that scenario, it can be quite successful. However, the Government’s short-term studies, which are fine as far as they go, show that reablement is less effective for those with severe disabilities over a longer period. It can be effective, but there is a group of people for whom an intensive, much longer period of care will be required. I have great doubts about the amount that will be required to get the improvements needed within the proposed level of reablement input. That is the purpose of this probing amendment.

As for Amendment 28, one should bear in mind that, for example, following a stroke or a head injury, maximum performance will not be achieved for perhaps more than two years, which would be a long time after the reablement process had finished. Therefore, I wonder whether the word “maximise” is quite right. I suggest that “significantly improve” would be a more appropriate phrase, particularly for people with mental health problems.

I shall speak to my amendment in this group. I want to probe some of the areas mentioned by the noble Lord, Lord Lipsey, again in the context of intermediate care provisions, about which I have previously spoken. Just as intermediate care provisions have an interplay with NHS continuing care, so they do with personal care at home.

I have a tremendous amount of sympathy with the points made by the noble Lord, Lord Lipsey. I am a fan of reablement. I was a big fan of it when it was called rehabilitation and I was just as big a fan when it was called good hospital discharge. It works tremendously well for a number of people. An older person who has had a stroke and has lost their confidence would value having someone to help them through the processes of returning home and learning to cope again. Sometimes it is a rather crude tool, while the strictures around it and the question of who pays for it have sometimes militated against the policy being as effective as it could be.

Some people come out of hospital and just want to go home. That is the most important thing to them. They do not want to go for weeks to a place where they do not know anyone to have an intensive period of what they consider to be treatment. They do not want that and they do not feel in charge of it. Some people want to stay with relatives for a while until they get themselves back together. If they choose to do that, sometimes they are deemed to be ineligible for intermediate care and they might be ineligible for personal care at home. However, some of them really need the services. What happens to people who need the services but who refuse to go through the particular pathway set out in this Bill?

I concede that much good has been done with the £900 million of intermediate care services, but some of the times and ways in which that policy has been implemented have not been particularly effective. An older person with a broken arm or leg probably could do with a period of reablement or rehabilitation when their cast is removed, which may be more than six weeks after they come out of hospital. However, they are not allowed to have that because it does not fall within the timeframe. When the Minister talks about intermediate care, as I know she will, will she say whether this Bill is an admission that for quite a number of older people that arbitrary six-week time limit has been ineffective?

Also, does the Minister share my concern that there has already been a considerable amount of rebadging—that is a new term, I think, but it has an awful lot of currency in the NHS these days—of intermediate care? I am thinking of things such as rapid response services, which now seem to be the flavour of the day. I do not have a problem with people choosing to call their services new things; I do not even have a problem with the services being given new and better purposes. However, I have a significant problem when money flows behind them in covert ways. That is what I am trying to get to the heart of: where does the money behind this system go? How is that tied to the assessment criteria and the eligibility criteria?

Finally, health and social care professionals are increasingly having to deal with a particular group of people whose need for services has not changed but for whom the money has run out. These people have funded their care for so long that they have run out of capital and resources. They have very significant needs, so how and when will they move into eligibility either for NHS continuing care or for free personal care? Their needs are very high; it is just that their resources have run out. The noble Lord, Lord Warner, is right: soon we will be back to a time when the assessment of clinical and social care needs will be governed largely by money. In our debate we need to do our best to prevent that.

My Lords, Amendment 30 in my name is designed to highlight what I hope are some fairly uncontentious issues around reablement. I come at this from a rather different angle from the noble Baroness, Lady Barker, although I very much identified with all that she said.

Reablement, as we have heard, is to be a precondition for receiving free personal care at home, but the way that reablement is offered and delivered to people will be very much a matter for local authorities to determine. Local authorities that are strapped for cash will be tempted to use reablement as a way of putting off the day when they have to decide one way or the other on a person’s eligibility for free personal care. Therefore, in the first instance I am worried that the process of reablement could be delayed, whether deliberately or not, as a means of postponing the burden of costs arising from having to give free care. How will authorities be monitored and held to account for the way in which they deliver reablement? What will prevent them from using reablement as a tool for withholding free personal care from those who would otherwise be eligible for it?

My second worry is very similar. There appears to be no limit to the number of times a local authority would be able to insist that someone went through a reablement process. The Minister in another place said:

“There are currently no proposals to restrict packages of re-ablement. It will be for councils to determine who might benefit from the intervention and whether it is appropriate to repeat this at a later date”.—[Official Report, Commons, 8/12/09; col. 292W.]

In other words, people could be put through it at frequent intervals—not for their own benefit so much as for the local authority’s benefit, in the hope that the obligation to deliver free personal care might be avoided following a further assessment of the person’s ability to cope with the activities of daily living. Again, what is to stop this unreasonable use of reablement from happening?

For some people, a process of reablement will do little or no good, and may even end up doing harm; those nearing the end of their lives are one example. In some of these cases it will be possible to predict that reablement will be burdensome and at best unlikely to be of more than temporary benefit. While I can readily accept that a refusal to undergo reablement will, in many cases, debar a person from an entitlement to free care—and rightly so—there will be other cases where a refusal is perfectly reasonable in the prevailing circumstances. The noble Baroness illustrated one or two of those examples. How will the system be able to distinguish between those two types of case and what safeguards will there be for service users in that context?

The Equality and Human Rights Commission has developed that point further. It argues that some people may not want or may not be able to accept or understand that they need social care and support services because of impairment of their faculties, pride, their wish to remain independent or simply because they are in denial that they have become disabled and are in need of care services. In those circumstances, it cannot be right for free personal care to be refused on the grounds that someone had rejected a council’s package of reablement.

Lastly, I am concerned that reablement should not be withheld from someone merely on the grounds that the person's carer has refused to take an active part in the process. The fact that someone has an unpaid carer may or may not provide a useful means of support for a local authority in the way that reablement is delivered to the person. But the active involvement of the carer should never be made a precondition of reablement if for any reason the carer does not want to be involved. How will local authorities be prevented from acting in a way that unreasonably imposes on unpaid carers?

My Lords, perhaps I may add to the probing that is inherent in all these amendments. If the reablement is to be the subject of free support financially, does it have to take place at home or can it sometimes take place more satisfactorily in residential care on a short-term basis? In administering a retirement village outside York, we found that people leaving hospital often did not go straight home but spent time in the intermediate care phase in a residential setting. Would they then forfeit the opportunity to receive financial help with a reablement package that would be available only if they went straight home? Perhaps the Minister could clarify that.

My Lords, I will be replying to this group of amendments which involves a substantial discussion on reablement, including Amendment 24 from the noble Baroness, Lady Greengross, Amendment 25 from the noble Baroness, Lady Barker, Amendments 26 and 28 from the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, Amendment 30 from the noble Earl, Lord Howe, and Amendment 34 from the noble Baroness, Lady Greengross. The amendments deal with the Bill’s provisions on reablement. As has been clear from the discussion, they deal with different aspects so it might be useful to touch on what reablement means to the individual and how it fits into the wider range of services on offer, and to explore the issues raised by the noble Baroness, Lady Barker, about intermediate care. At its heart is the intention to help individuals to maximise their ability to look after themselves.

We have sometimes talked about intermediate care and reablement interchangeably. In essence, both reablement and intermediate care try to do the same thing. They have the same objective of helping to maximise a person’s abilities and independence, but come at the problem from different angles. Intermediate care is often linked to people coming out of acute hospital care and returning to live in the community and there is often a health element to that care as well as social care. Reablement is a more preventive approach, identifying people at risk of having to go into hospital or residential care and putting in support to maintain people’s independence to help them remain in the community. That might include specialist help to rebuild a person’s physical skills and confidence. To answer the question asked by the noble Lord, Lord Best, reablement can be offered in a residential care setting.

The aim is to maximise that person’s independence. It means often looking at how the home environment can support independence. Indeed, at an earlier stage of the Committee, we looked at the range of aids and adaptations that might help people. Grab rails, telecare, adaptations of showers, stair lifts and disabled facilities grants transform the home environment. Regardless of the terminology, what is on offer is simple to understand—and it is widely supported and, indeed, it is already happening. The introduction of this Bill will enable us to provide further funding of £130 million to encourage more people to benefit. In answer to the point raised by the noble Baroness, Lady Barker, this is not about substitution; this is about adding to it.

There is powerful evidence that reablement works. A research study by the University of York demonstrated that the benefits of reablement are not just immediate, but are long lasting. This is why we believe that it is such an important part of the Bill. Reablement and intermediate care services of various kinds have been developed in many parts of the country. We want to encourage councils to offer reablement to more people wherever that is appropriate and to make it a standard part of how they support people’s needs, rather than assuming that care needs will stay the same or increase. This is not about forcing people to do things, but about working with them and their carers and families to put them in the best possible shape. We recognise that there will be some people for whom reablement is not appropriate, and we believe it is right to let councils have the flexibility to make sensible judgments about the individual circumstances in which it is appropriate to offer it. Our guidance will address that issue.

I want to address the specific points that noble Lords have made about the cost of reablement—it is £130 million. We believe that this will mean that 130,000 people could benefit from reablement as part of the Bill. There is already money in the system to meet some of these needs. What we are doing now through the Personal Care at Home Bill is making more money available to encourage councils to offer more support to more people. Current community care funding provides for aids and equipment. For example, last year we invested £80 million to encourage council investment in telecare and we allocated £168 million for adaptations through disabled facilities grants.

Amendment 24 in the name of the noble Baroness, Lady Greengross, seeks to enable the making of regulations to require local authorities and PCTs to work together to assess needs and deliver reablement. It is indeed important, of course, that local authorities and partners in health work together effectively to support people. I agree with the motives of the noble Baroness, Lady Greengross, in proposing this amendment. It is vital that local authorities and their partners work together effectively. For the person who has a wide range of health and social care needs, it really does not matter whether what they are receiving is a social care bath or a health bath. Indeed, that interface, as mentioned by my noble friend Lord Warner, is at the crux of much of the care that we want people to benefit from. We recognise that they have to work together effectively, and if they do not it creates anxiety and is very frustrating.

In Putting People First, we have set out the cross-government strategy to transform adult social care. We recognise how important integrated working is across these sectors, and, in fact, we gave £520 million to councils to help them with that. We will be developing guidance which recommends that local authorities work with colleagues in NHS primary care trusts where it is appropriate. An acceptance of the noble Baroness’s amendment, however, could force local authorities to consult a primary care trust where, in some cases, there may not be a need to do so.

I turn to Amendment 25 tabled by the noble Baroness, Lady Barker. In its present form the Bill makes explicit reference to,

“a process designed to maximise the person’s ability to live independently”.

We are calling this process reablement. The Bill allows regulations to be made that will give local authorities the discretion to use a period of reablement as one of the criteria for determining eligibility for free personal care. This does not mean that local authorities should force everyone to undergo such a period of reablement. That is not our intention as in some cases reablement will be neither appropriate nor beneficial to the individual. However, many people can potentially benefit from reablement and we believe that local authorities should be encouraged to make greater use of these services where they are already available and established, and develop them further where provision is currently lacking.

New subsection (4C) explicitly sets out the power that will enable the Secretary of State to make regulations to achieve this, which will be accompanied by detailed guidance on how local authorities should decide whether or not reablement would be appropriate for the individual.

The noble Baroness asked about a person’s means, what happens when their money runs out, and when they will become eligible for free personal care. Continuing care is never means-tested. The Bill is designed to support those people who might well have already used substantial personal means to support their care needs, so it will help to provide some relief for them. My noble friend Lord Lipsey, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, all asked about a person who is not willing to accept reablement, and whether that person could have their free personal care withdrawn. That would be a very heavy-handed tool. It is proposed that free personal care could be refused only where the person had—I think that the noble Earl said this—unreasonably refused that reablement. That will be set out in regulations and is an issue that would have to be treated with great sensitivity. In choosing to refuse an offer that is reasonable, they could not be eligible for free care under the scheme and would have to make a contribution to the cost of their own care. However, it is a very sensitive issue. In an earlier debate, we covered the issue of carers and unpaid carers not being part of the assessment that would take place for free personal care.

Amendment 26 in the—

Will the Minister clear up one point before she goes on to the next point? I am not talking about those who refuse reablement; I am talking about those who are not suitable for reablement. For instance, if they are too frail or too ill, will they then be able to get help, and who will decide that?

Yes, they will as part of the assessment process. I was asked specifically about somebody who might refuse reablement. However, I think that I said earlier that it would not be appropriate to offer some people reablement. That will also be covered in guidance. It is very important that the offer which is made to people is dealt with sensitively.

One of the difficulties with this legislation is that it covers two distinct groups of people: disabled people who may be young and may have a condition with which they will live for a considerable time—the whole purpose of this measure is to enable them to have the means to pursue fulfilling lives—and older people who become ill for one reason or another. I noted the noble Baroness’s distinction about intermediate care being provided to people who have been in hospital. How many people is it envisaged will meet the FACS criteria who will not have been in hospital? We are talking about people who will be very ill and very disabled even though they may not have had acute care. For very many older people who may or may not be eligible for care under this measure, simply maintaining their ability to live independently at a level of operation which is perhaps lower than it was before they were ill—for example, if they have had a stroke—will be a good result. It is not about improving their ability to live independently because, for some of them, it probably cannot be improved; it can only be maintained at a lower level. Is it the intention of this Bill, clumsily worded though it is, to reflect that—that some people will not improve as a result of reablement, but will simply continue to be able to cope and perhaps at a reduced level? That is an important point to make and make clear for people who may be doing assessments in the future.

That is a very important point. The noble Lady has raised two points. On the first, I can think of three people I know who are not in hospital, but who are definitely disabled. Whether they would qualify under this scheme, I do not know. It is very unlikely that they would be in hospital unless something acute happened, though there is no question that they are disabled. The point about reablement is that, if the reablement process—we will talk about “improvement” and “maximise” in a moment—actually enables that person to maintain the level of independence that they already have, it seems to me that that has also succeeded and would count. On the question about the number of FACS-critical people who have been in hospital, we have not collected that information in this form. However, the noble Baroness makes a valid point indeed.

Amendment 26, in the names of the noble Lords, Lords Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, would seek to change new subsection (4C). It would mean that any regulations which the Secretary of State makes under subsection (4A) that give local authorities functions relating to eligibility for free provision of personal care must specifically allow them to use reablement as an eligibility criterion. I understand that this is a probing amendment, and I hope that I have answered some of the points, but we have been clear from the start that the Bill must enable a two-pronged approach: providing free personal care to those with the highest needs who are living at home, accompanied by a period of intensive support or reablement for all those who would benefit from such a package.

We do not think that it is necessary to dictate the content of the regulations in the Bill. The working draft of the regulations, which has already been made available to noble Lords, makes plain that advice around reablement will be included within guidance. Stakeholders at several consultation events over the past few months have supported this approach. They welcome increased support for reablement, and we will use their comments regarding its implementation to further shape the content of regulations enabled by the Bill and the guidance on those regulations.

Amendment 28, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, is a very “House of Lords” amendment about whether one should substitute “maximise” with “improve”. New subsection (4C) of the Bill refers to,

“a process designed to maximise the person’s ability to live independently”.

The noble Lords and the noble Baroness have suggested that we should replace “maximise” with the word “improve”. We do not feel that this best defines reablement. Improvement could mean only a small change in what may already be very poor circumstances. In fact, our aspirations for reablement are that it should do better than this. We want to help individuals to become as well as possible, not only to improve their status, but to maximise their ability to live independently. Therefore, we think that “maximise” is a better fit than “improve” for what we understand reablement to mean.

I think that I agree with the aim of Amendment 30, tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. Although reablement will have many benefits for the majority of people, we recognise that in some cases it would have limited or no benefit and would not be appropriate, for example, for people who are very frail or who are receiving end-of-life care. We will place in statutory guidance advice around when reablement may or may not be appropriate, along with advice on how a suitable package should be developed with input from and consultation with the individual, their carers and any relevant health and social care professionals.

Amendment 34, tabled by the noble Baroness, Lady Greengross, would permit regulations to enable a local authority and primary care trust to offer a package of reablement and intermediate care to a person after they had stayed in hospital for more than one week.

All local authorities can already deliver packages of reablement, helping people to maximise their ability to live at home independently. These packages are most effective when they include a range of interventions to meet a person’s range of needs. A package of reablement or intermediate care can, and should, involve a variety of health and social care professionals, along with other interventions, minor aids or adaptations.

We will be outlining in statutory guidance how we expect local authorities to develop a personalised package of reablement for individuals, and we will make it clear that the person receiving the package, along with their carers, GP and other professionals, should be involved as necessary. We think that this is more suitable for guidance than regulations but we accept the point made in the noble Baroness’s amendment.

We recognise the concerns that the noble Baroness, Lady Greengross, expressed concerning dementia. We believe that people with dementia can and should be able to benefit from reablement services. We need to ensure that the guidance that goes along with the Bill takes on board the issues raised in the dementia strategy and makes it clear that people with dementia should have access to the appropriate equipment.

The noble Baroness, Lady Murphy, commented on long-term studies. We think that the reablement component increases the amount available to all those presenting for social care, and that it will reduce levels of dependence and may well delay or prevent people needing intensive support. The intention is to focus not just on this group; we believe that reablement has a role to play for a range of groups, including those with dementia or a head injury. As I mentioned earlier, York University has already carried out some studies on this, and we will be assessing the situation in 12 to 18 months’ time.

The Bill is about the free provision of personal care by local authorities and not the NHS. In any event, there will be some circumstances in which it will be more appropriate for the service to be offered solely by either the NHS or social care. We do not want to create fresh barriers, which some of these amendments would bring about, to the most effective delivery of services to individuals. The forthcoming White Paper will reaffirm our commitment to the health and social care systems working together much more effectively as part of a future reform of the care service. Therefore, I ask the noble Baroness to withdraw the amendment.

Will the noble Baroness write to me with answers to the questions that I asked about intermediate care? I asked a number of such questions of the noble Lord, Lord Tunnicliffe, and I quite understand why he did not answer them. However, in particular, I should like to have updated figures for the number of people in receipt of intermediate care and for the number of PCTs and local authorities that have a named lead officer. That would be extraordinarily helpful to Members of the Committee.

I apologise to the noble Baroness. I had marked up answers to a lot of her questions and I believe I have now found some of them. The latest figures show that 28,116 intermediate care places benefited 132,720 people between April and June 2008. Compared with 1999-2000, the number of intermediate care beds has doubled, and the number of intermediate care places in non-residential settings has trebled. Three times as many people are benefiting from intermediate care. The NHS Plan aimed for an extra 6,700 places for intermediate care by March 2005—5,000 residential and 1,700 non-residential—and today the NHS has delivered an extra 22,948 places.

In her previous question, the noble Baroness raised the issue of the guidance. The original guidance has been strengthened to include flexibility over the period of an intermediate care episode—which I think is the point that she raised. That will ensure that people with dementia have access to intermediate care, with that care being commissioned across health and social care, and that reablement services are part of the commissioned service, widening access to intermediate care to include all adult age groups, not just older people.

I thank the Minister very much for her obvious commitment to the amendments I put forward. I am sorry that she cannot accept them, but I appreciate what she said and I shall think again about them. In the mean time, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 to 35 not moved.

Amendment 36

Moved by

36: Clause 1, page 2, line 12, at end insert—

“( ) The Secretary of State shall report annually to Parliament on the compatibility of regulations made under this section with the European Convention on Human Rights.”

My Lords, we come now to one of the most important legal issues presented by the Bill, and that is its compatibility with the European Convention on Human Rights. One of the most striking features of the Explanatory Notes is the length and complexity of the Government’s defence of the legality of the Bill in relation to the convention. Of course it is very helpful to see that defence set out in clear terms, but I cannot remember another Bill where it has been necessary to do this to quite the same extent. The obvious conclusion from this is that, even though the Government’s human rights justification may be correct in its bald terms, we are, nevertheless, on quite tricky legal ground. We have already considered the issue of discrimination against deafblind people arising from the Bill and its regulations, so I shall not dwell upon those arguments a second time.

The other type of discrimination to which the Bill potentially gives rise relates to residents of care homes. It would be perfectly possible for those people to argue that their personal care needs are every bit as critical as those of someone who happens to be living at home and that this discrimination against them amounts to a breach of Article 14 of the convention, taken with Article 1 of Protocol 1, which covers the right to peaceful enjoyment of possessions. Indeed, the department accepts that it is a prima facie breach of Article 14 to discriminate between one person and another on the basis of where each of them lives. Nevertheless, the Government maintain that the different treatment of people living at home is not discriminatory because the policy underlying the different treatment pursues,

“a legitimate aim in a proportionate way”.

As this is a framework Bill, an enabling Bill, it would be hard to argue that the Bill itself was incompatible with the convention. The issue, rather, is whether the policy to which the future regulations will give substance does indeed pursue a legitimate aim in a proportionate way. As regards the aim of the Bill, and the aim of the regulations, it would be difficult to show that these were in any way illegitimate. So I shall not spend time arguing that case. However, on the issue of proportionality, there is quite a lot that we can say. The Explanatory Notes say:

“The key aim of the policy behind the Bill is to enable, support and encourage more people to avoid or delay entering residential accommodation … It is considered that the proposals are proportionate as they are aimed at those people in highest need—the group of people who are most at risk of having to enter residential accommodation”.

The message that I take away from that is that, as long as the Government’s assumptions prove to be correct as regards the number of people who are likely to benefit from the legislation, the policy is unlikely to breach the convention. The problem, it seems to me, arises if the Government’s assumptions are not correct. As we have said a number of times, the figures quoted in the impact assessment come with a giant health warning. At best, they are an approximation; at worst, they bear little or no relation to reality. So we need to ask: what would happen if the numbers of those eligible for free care in the home turned out to be much larger than the numbers postulated in the impact assessment? What would happen if local authorities are unable to make efficiency savings sufficient to cover their share of the cost of delivering free care? What would happen if, as a number of councils are arguing, it proves impossible to deliver free care to a satisfactory standard within the assumed cash limits? The Government’s assumption is that the time taken to deliver help with four activities of daily living is roughly one hour per service user per day, but some councils are saying that it would be double that. What if they are right?

The money would have to be found from somewhere. It could be found from an increase in council tax. It could be found from cuts in other local authority budgets. It could be found from increased charges for personal care to those who are not receiving their care free. Or it could be found by reducing the amount of personal care being delivered to those same people. If it is the last of these, we are in dangerous territory as far as the European convention is concerned. If local authorities were to withhold personal care from people who are in critical need but who require help with fewer than four activities of daily living, or if they were to withhold it from people with substantial care needs or from people with care needs in a lower banding, it could well make those people decide to move into residential care rather than to be enabled to stay at home.

In that situation we could indeed see more people receiving free care in their homes, but possibly fewer people receiving care in their homes overall. Should that occur, then a breach of Article 14 is a real possibility, because the Bill would have failed to achieve its stated objective of enabling more people to avoid or delay entering residential accommodation. We would have spent a lot of money favouring one group of people at the expense of a larger group of people. It could be argued that the result would be a disproportionate way of pursuing the policy objective.

In other words, ECHR compliance will be a matter of fact rather than theory. With all the uncertainties over the costing of the policy and all the worries being expressed by local authorities about its affordability, we cannot know how things will pan out in practice. We therefore have to plan ahead on the basis that human rights compliance will need to be regularly monitored. This amendment is designed simply to ensure that that is done, and done in a way that is visible to Parliament. I beg to move.

I thank the noble Earl, Lord Howe, for tabling this amendment because it caused me to spend this morning studying that magnificent piece of legislation introduced by this Government—the Human Rights Act—and a fine piece of legislation it is too.

The amendment focuses on the compatibility of the Bill with the European Convention on Human Rights and the requirements of reporting on that. As noble Lords may be aware, the Equality and Human Rights Commission helpfully produced a briefing on the Bill. I shall highlight some key points. I am very pleased that the commission broadly welcomes the Government’s commitment to provide personal care free of charge in certain circumstances to people with the highest needs and the additional investment in the wider social care system and acknowledges the importance of reablement.

In the commission’s view, the Bill does not discriminate against those in residential care and the policy of providing free personal care at home is reasonably and objectively justified as a proportionate means of achieving a legitimate aim, and is thus compliant with obligations under the European Convention on Human Rights. We recognise that the commission has some underlying concerns about implementation and the impact on others with social care needs should local authorities not realign their services as a result of the Bill. We are committed to addressing these concerns as part of supporting councils to prepare for implementation and we hope that some of the debate in Committee has gone some way to reassuring the commission.

Amendment 36 would require the Secretary of State to report annually to Parliament on the compatibility with the European Convention on Human Rights of regulations relating to the provision of free personal care at home. As the Bill states, it has already been certified that in our view the Bill is compatible with the European Convention on Human Rights, and a detailed, well read and thorough memorandum setting out the reasons for this has been sent to the Chair of the Joint Committee on Human Rights.

In addition, the committee requested further evidence in relation to specific questions relating to the European Convention on Human Rights issues around the Bill, which the Minister for Care Services responded to on 29 January. We will give careful consideration to any points raised by the Joint Committee in its final report. The Government already seek to ensure that any secondary legislation and guidance are compatible with the convention, as required by the Human Rights Act 1998. The regulations which the Secretary of State will be enabled to make by this Bill, and any related guidance, will be no different in this regard.

The noble Earl, Lord Howe, asked why the note was so long. This is because of Article 14 of the convention. The words cannot simply be taken at face value from the article, but have to be related to former judgments by the European Court of Human Rights and to a similar judgment in the House of Lords acting, as it was then, as the Supreme Court, in 2008, known as the RJM case. Essentially, he is quite right to point out that this fails the first test of discrimination, but it is justified by the argument that the policy is a proportionate response to a need. To quote the memo:

“The Department’s view is that the different treatment of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way.”

It has been argued that this is okay, provided that we are actually delivering the policy. I would not like to give the sense that we will not deliver the policy, as we believe that we will and that none of the traps or problems that have been used to illustrate the case will occur. It is very important, on this legalistically technical point, to realise just how far the policy would have to go before it was in any way threatened by the Human Rights Act, because the Act is about protecting individuals from an overbearing state. The Court has been particularly concerned that social policy should be an area where a wide measure of appreciation is accorded to the state by the Court, and I am told that “appreciation” is code for “latitude”. It was also noted that, where there is a general rule, a line must be drawn, and it is for Parliament to decide where to draw it.

The House of Lords noted that social policy is an area where the Court should be very slow to substitute its view for that of the Executive, especially where the discrimination is not on one of the express, or primary, grounds. Even under the most difficult circumstances, it is difficult to believe that the convention would be threatened. Nevertheless, we are concerned that this policy should be successful, and we have already said that there will be a review after 12 to 18 months. That review will need to assure itself that the policy is succeeding and is achieving proportionality. Through the process of looking at the Act and making sure all the orders and regulations are compatible, I believe there will be no risk that the Bill, its policy and its implementation will be incompatible with the Human Rights Act.

The amendment would impose an unnecessary requirement, particularly as the regulations are highly unlikely to change annually. Given the generality of the Human Rights Act, which I have tried to describe, together with the fact that we will have a review and that the Government are generally bound by the Human Rights Act to implement policy in a way that is compatible with that Act, I hope the noble Earl will feel able to withdraw his amendment.

What exactly did the Minister mean when he said that the regulations are likely to change every year? Does he mean the regulations that we make in this country, or the European regulations? I am not clear.

I think I said that they were not likely to change. Either way, I was speaking to regulations made by the United Kingdom. The convention is a fairly steady piece of policy and is being developed more by case law than particularly by change.

The Minister referred to the memorandum that was sent to the Joint Committee on Human Rights. In view of the fact that it is before that committee, will the Minister assure us—I am sure he will—that no regulations will be laid under this Bill until that committee has had a chance to consider the Government’s memorandum and to offer its opinion to both Houses on it?

My Lords, I am not sure that I am content with the conditionality of that statement, but I am certainly happy to advise my noble friend that we expect the committee’s final report to be available within days: indeed, probably tomorrow.

My Lords, does the Minister agree that this gives strength to my amendment, which would ensure that people have a right to an independent appeal so that these matters can be sorted out at home rather than having to go to Europe?

My Lords, I am trying to say that the compatibility of the Act and its regulations with the convention is in no doubt. We do not think that the extra reporting which the amendment would require is justified. The Government will implement this Act in a way that will be compatible with the convention.

My Lords, I am grateful to the Minister for his reply. He is correct; the Bill is compatible with the convention, but for the simple reason that it contains very little. The regulations may well be compatible prior to their implementation. What is in question is whether the Bill and the regulations, in their implementation, will breach the convention because of the unintended consequences that may ensue.

The Minister is right to advise the Committee that the European Court of Human Rights has been reluctant to intervene in social policy. However, I am advised that a legal challenge that is based on the relevant articles of the convention might well engage the Court’s attention, should the effect of the Bill, contrary to intention, prove to be disproportionate. This question must hang in the air, and we shall all be very interested to read what the Joint Committee says. I am a little sorry that the Minister could not answer his noble friend Lord Lipsey categorically, because, should the committee report adversely, the Government would have every case for withholding any further action on this Bill, although that may be unlikely in the circumstances. We can, however, take comfort from the fact that the Government are committed to reviewing the workings of the Act within 12 to 18 months, which will give us the opportunity to look at these matters further. With that, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Amendments 37 to 43 not moved.

Clause 1 agreed.

Amendment 44 not moved.

Clause 2 : Extent and short title

Amendments 45 to 47 not moved.

Clause 2 agreed.

House resumed.

Bill reported without amendment.

Mortgage Repossessions (Protection of Tenants Etc.) Bill

First Reading

The Bill was read a first time and ordered to be printed.

Digital Economy Bill [HL]

Report (1st Day)

Clause 1 : General Duties of OFCOM

Amendment 1

Moved by

1: Clause 1, page 1, leave out lines 8 and 9

My Lords, our Amendment 1 would remove what we see as the most unnecessary part of a clause that we on this side see little point in having in the Bill at all. I will not go back over all our objections to Clause 1, which we laid out in Committee. I will instead restrict comments to this amendment. As was highlighted during the Committee’s consideration of this clause, and as was hinted at earlier, Ofcom already has a duty to encourage efficient investment in infrastructure, so could the Minister explain why we need a new duty on top of the established one? What difference will this new duty make? Will it not, as my noble friend Lady Buscombe said, simply muddy the waters?

There could well be duplication and confusion from Ofcom exercising its functions under the Communications Act 2003 and the duty that the Government have set out in this Bill. We asked similar questions in Committee, but the answers were not enlightening. The Minister argued:

“It is right that the regulator should be responsible for this”.

We agree but, as has been pointed out, under Section 3 of the Communications Act 2003 the regulator is already responsible for this issue, so I am not reassured by this argument. More significantly, when addressing the specific question of whether the duty was needed, and whether there would be any overlapping, the Minister argued:

“It is necessary and there will be no duplication, because we are doing this only once”.—[Official Report, 6/1/10; col. 155.]

I am not entirely certain what that means. The key concern with this clause is that it does not seem necessary. It will, we feel, simply create confusion and overlapping functions. Could the Minister explain more fully quite why he thinks that this will not be the case and what is so wrong with Ofcom’s existing duties, which include encouraging investment in infrastructure, that it is necessary to repeat this part of their duties? If the purpose is to underline this part of those duties, could it not have been done in a way that made the point without resorting to legislation?

The Government argued that the duty was needed because of,

“the specific importance of investment in electronic networks at a time when many of our communication networks are being substantively upgraded”.—[Official Report, 6/1/10; col. 163.]

It would be helpful if the Minister could explain why the existing duty cannot deliver these upgrades. For instance, digital television switchover is already happening. It is being funded by the licence fee and, as far as I am aware, Ofcom does not have much of a role in the process. I would imagine that radio switchover could happen in much the same way.

I do not doubt that the regulatory environment needs to change to help to speed up investment in next-generation broadband, but would it not have been better to identify which specific measures are needed? Instead, we have this broad yet unfocused power that the Government are not entirely sure will result in much change. I am afraid that it looks as if the Government are simply adding a duty to give the appearance of action. As with so many things, the Government’s response to a problem seems to be more regulation. Unless the Minister can explain exactly what marks out the duty as necessary and distinct from an existing duty, there is no reason to include it in the Bill and there is certainly no reason for this part of the clause. I beg to move.

My Lords, I made it clear in Committee that new subsection (1A)(a) places a clear requirement on Ofcom to consider the need,

“to promote … investment in electronic communications networks”.

There is a clear requirement on Ofcom to consider promotion of investment systematically. Currently, Ofcom is required simply to have regard to the desirability of encouraging investment when it appears to be relevant in the circumstances. It is therefore a significant change of emphasis and an important change in the way in which Ofcom carries out its duties. It would be incredibly short-sighted of us to miss this opportunity to ensure that the regulatory environment for these vital sectors encourages investment and growth.

Our policy objective as set out in the Digital Britain White Paper was clear that the general duties of Ofcom should be qualified by the need to promote investment. We concluded that the best way of achieving this was by the creation of a new Section 3(1A) (a), (b) and (c), which place a specific requirement on Ofcom to,

“promote … investment in electronic communications networks”,

when performing its principal duty. In light of the considerable debate that your Lordships have stimulated, we have considered how we could make the clause clearer to address the matters raised. The result is a series of proposed amendments today—Amendments 2, 3, 5, 6 and 7. The new wording clarifies how the clause will work in practice.

As the right reverend Prelate the Bishop of Blackburn admirably said in Committee, maintaining the duty for Ofcom to promote investment in infrastructure and public service content so as to help to secure our economic and social prosperity in the future,

“seems entirely sensible, even highly desirable”.—[Official Report, 6/1/10; col. 161.]

Removing that obligation on Ofcom to promote investment in our communications networks of the future would send an entirely wrong message about our commitment to such a programme of improvement. The duty will not cause confusion. It would not be right to state specific measures, but it is important to encourage investment when it appears to be relevant in the circumstances. It is an important change of emphasis; it is now a principal duty. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.

My Lords, I thank the Minister for his response, but I am afraid that I have heard nothing new today, so I should like to test the opinion of the House.

Amendment 2

Moved by

2: Clause 1, page 1, line 8, leave out “appropriate levels of”

My Lords, Clause 1(2) of the Digital Economy Bill requires Ofcom in performing its principal duty to have particular regard in all cases to the need to promote appropriate levels of investment in electronic communications networks in public service media content and to have regard to the need for the investment to be efficient wherever possible.

In Committee, a number of your Lordships questioned the meaning of “efficient” investment and the suitability of the phrase “appropriate levels of investment”. Certain of your Lordships were also concerned that the clause, as written, failed to address what they saw as the failure of Ofcom to fulfil its duties to citizens. We have looked at whether changes to the wording of the subsection might be improved to reflect the Government’s intention and we are, as a result, proposing a package of changes to new subsection (1A) that I trust will meet the concerns raised in Committee.

I want to make it clear that Ofcom’s principal consideration when making any decision must be the interests of citizens and consumers. The new duty is an aspect of that obligation. We are not introducing a power for Ofcom to impact on individual companies’ investment decisions. Instead, the provision is intended to ensure that, as many of your Lordships argued in Committee, when Ofcom is taking regulatory decisions it has in mind the need for investment in public service media content and networks fit for ever increasing demands and next-generation technologies, for the benefit of all and not just the companies involved.

The amendments in this group, I hope, make this clearer by setting out more clearly what is meant by the words “efficient investment”. This is, in the broadest sense, what we generally refer to as economically efficient, taking into account the benefits to investors, consumers and wider society. This definition therefore now captures investment that is efficient in commercial or social terms. Investment in public service media content, for example, would be efficient if the social benefits to citizens outweighed the cost of providing the content.

A question was also raised as to whether the reference to “appropriate levels of investment” was appropriate. We have looked again at this. Consequently, we are proposing amendments to paragraphs (a) and (b), which will require Ofcom to consider whether it would be appropriate to promote investment per se, rather than require it to make a specific judgment on the level of investment that would be appropriate in a given instance.

Finally, there was uncertainty about how this new subsection relates to the existing provisions in Section 3(4) of the Communications Act. To put this beyond doubt, the intention is to require Ofcom to give precedence to the need to promote investment where there is a tension between this need and the subsection (4) matters.

I hope that noble Lords will agree that these amendments make the intention of the clause clearer and that they appropriately reflect the need for Ofcom to promote the interests of citizens and consumers. I therefore ask your Lordships to support these amendments. I beg to move.

My Lords, it is a pleasure to see that the Government have listened to some of the concerns that the House raised during the drafting of Clause 1. There are still issues with the clause, but I will save those worries for my amendments. For now, I shall turn my attention to the amendments proposed by Her Majesty’s Government. I am grateful for the explanation provided in correspondence by the Minister regarding the Government’s thinking on these amendments. As he said, they have had to go back to the drawing board on the specific issue of efficient investment. I was slightly worried that by addressing one concern, the Government may have raised others, but I hope that this debate can lay those to rest.

This clause now states that Ofcom will promote investment in “electronic communications networks” and “public service media content”, where appropriate. That is an important distinction. However, it throws up a number of important questions about the meaning of the word “appropriate”, which were not dealt with in Committee. For instance, who decides when an investment is appropriate? By what criteria will such an investment be judged? Will investment be considered appropriate if it leads to faster broadband speeds, greater profits for a company or greater competition in the market? Depending on what criteria are used to define “appropriate”, the outcome could be markedly different.

The Minister wrote to the noble Lord, Lord Mitchell, regarding these amendments, stating that,

“unlimited investment in all features of an electronic communications network will not always be appropriate”.

I agree. There are always other considerations that will need to be taken into account in determining whether the investment is justifiable on public policy grounds. The Minister referred to those a few moments ago. Some clarity on the Government’s definition of appropriateness would be helpful, not least for the regulator who will need to balance these new duties with existing ones.

The addition of the phrase,

“taking account of the interests of citizens and the interests of consumers in relevant markets”,

presumably ensures that the interests of consumers will be considered when determining the appropriateness of an investment. But what other factors should be considered? Perhaps I am in danger of reading too much into this, but I cannot help thinking that “where appropriate” could just be a generic phrase that gives the regulator enormous leeway in making its decisions. There is a danger that such leeway could create uncertainty for the industry, as businesses will find it difficult to know how the duty will be interpreted.

All organisations need certainty and a clear and level regulatory playing field. The telecommunications sector is no different, and given the amount of investment required to upgrade the country’s communications networks and the length of time required for a return on such an investment, anything that muddies the waters or causes doubt should give pause for thought. Is the Minister confident that the addition of “where appropriate” will not lead to uncertainty—uncertainty that threatens the investment this duty is designed to promote? Finally, can he reassure those of us who remain unconvinced that this clause is needed at all that these amendments significantly enhance those duties that Ofcom already has?

My Lords, I very much welcome these government amendments, and particularly Amendments 2 and 3. It is primarily lack of investment in much of the infrastructure, particularly in local and rural areas, that has given rise to Amendment 9A to which I will speak later. The amendment stands in the name of the noble Lord, Lord Laird, and I would have added my name to it if I had not been away. I am sorry about that.

I welcome Amendment 7 which will remind Ofcom of its duty to take into account the interests of citizens. It is all too easy to think of these things in terms of business and profitability, but there comes a point when we must invest in infrastructure. It will not necessarily be seen to be efficient in business terms to start with, but we will get huge rewards further down the line and in other areas of life which may not be strictly relevant to the communications market but will be relevant to many other markets.

My Lords, my noble friend the Minister has addressed many of these issues, but I still have a concern over “appropriate”. In some ways it sticks—it just does not feel right in Amendments 2, 3, 5 and 6. I want to tell noble Lords the reason for this, which is generic to this industry.

I learnt something new this weekend. I came across a new word: exabyte. I have never heard that before. An exabyte is a billion gigabytes, or a billion billion bytes—it is a pretty big number. In 2005, mankind created 150 exabytes; in 2010, 1,200 were created. So, over five years the total amount of data created on earth went up by a factor of 10, and I suspect the rate of increase is going to continue on an exponential basis. If we were standing here in two or three years perhaps we would need another word for a thousand exabytes. I do not know whether there is such a word; maybe there is.

Even since the Digital Economy Bill was introduced in your Lordships’ House three months ago there have been many changes. We have had two major exhibitions in the world: the Consumer Electronics Show in Las Vegas, and a month later the GSM Mobile World Congress in Barcelona. At both those events, major new products were introduced which were dramatic and will change the face of the whole industry. There have been smart phones, tablets, and of course a month ago Apple announced its iPad tablet. On the subject of Apple, last week it recorded 10 billion downloads from iTunes—nearly two for every person living on this earth. As I mentioned once before, there have been 3 billion downloads of apps for the iPhone. Convergence, about which we have talked many times in this House, is now a factor of life; it is happening at a very dramatic rate. Also since the Bill was introduced, we have heard that in the United States, AT&T’s network has been struggling with the amount of data required, and O2 has reported problems coping with the amount of data on a broadband basis or mobile network basis.

To return to the word “appropriate”, I want to make the point that I do not like the tone of the word. It does not feel right. It feels, as the Minister himself said in a meeting with me, as though the word is limp. It certainly does not capture the change that is taking place in this industry. It would be more appropriate if we were talking about agriculture or the steel industry, but the IT and mobile industry is changing so fast that we need something that recognises that change more, dare I say it, appropriately.

My Lords, we seem to be halfway towards pleasing the House if not completely there. I am pleased that we have made some progress in trying to address the problem. I would say to my noble friend that he should take the amendments as a whole. The previous amendment elevated the role of Ofcom to ensure that investment in electronic communications networks was one of its principal duties, which is an important change. I have been trying to get something helpful rather than a legal definition that might engender more of a collective groan than anything else.

However, this is not about particular investment decisions but about the creation of a regulatory climate that encourages investment. I know that that is what my noble friend Lord Mitchell wants to do. He seeks to encourage investment in an environment where, as he eloquently described to us, demand is exponential. What is interesting is that so far, and there is no room for complacency, we have managed to meet that demand. We know that there are other things we need to do in terms of the UK providing universal broadband and super broadband and we are focusing on those areas.

I also want to make it clear in relation to the concern of the noble Lord, Lord Howard, that Ofcom's principal consideration when making any decisions must be the interests of citizens and consumers, and the new duty is an aspect of that obligation. We are not introducing a power for Ofcom to impact on individual companies’ investment decisions. Instead, the provision is intended to ensure that, as many of your Lordships argued in Committee, when Ofcom is taking regulatory decisions it has in mind the need for investment in public service media content and networks fit for ever-increasing demands and next-generation technologies—to take up the point made by my noble friend Lord Mitchell—for the benefit of all and not just the companies involved. I have endeavoured to address those concerns and, in the light of that, I hope that noble Lords will support the amendment.

Amendment 2 agreed.

Amendment 3

Moved by

3: Clause 1, page 1, line 9, at end insert “, where appropriate”

Amendment 3 agreed.

Amendment 4

Moved by

4: Clause 1, page 1, leave out lines 10 and 11

My Lords, this is a probing amendment to seek clarity about what the Government are trying to achieve with this part of Clause 1 and, more significantly, to try to understand what the implications will be of the new definition of public service media content. The Minister was kind enough to write to me following our debate on this topic in Committee. In his letter, he confirmed that the Government’s new definition of public service media content could include blogs,

“to the extent that these contribute to the public service objectives set out in section 264(6)”,

of the Communications Act.

As I pointed out in previous debates, these objectives include a wide variety of topics, ranging from religious and educational topics to entertainment and comedy. As such, it could be argued that almost any website where an individual has editorial control could fall under these objectives—anything from the obvious, such as newspaper sites and political blogs, to comedy, show reviews or even online video games.

Is it the Government’s intention that Ofcom should promote investment into almost anything on the internet? It is hard to see how this will work in practice. I am sure that the aim is not intended to be so broad, but it is what the definition provided in this Bill could lead to.

The Minister argued in his letter that we need to give Ofcom sufficient flexibility to take into account new forms of public service media content. The need to allow public service broadcasters to invest in distributing public service content in new ways, notably through the internet, is understandable. However, surely what the internet shows is that public service content online is very much alive and well. The whole point of the internet is that services spring up where there is a demand for them. Excellent work is created without Ofcom promoting investment.

I therefore urge the Minister to think again about whether such a duty is necessary and, more importantly, whether such a broad definition of public service media content will not make the duty so unwieldy as to become meaningless. I beg to move.

I should like to echo one or two of the points that my noble friend has just put. Exactly like him, I seek guidance on what this section means. As the noble Lord knows, I am a strong supporter of public service broadcasting—not just the BBC but Channel 4, ITV and the other public service broadcasters—so there is absolutely no question of my not supporting it. What I do not understand is the duty placed on Ofcom,

“to promote appropriate levels of investment in public service media content”.

That is what I do not understand—the promotion.

For once we are not talking about what is “appropriate” but about what “promote” actually means. Does it mean that it is the duty—or that it is possible or conceivable—that Ofcom could push for more public spending, so that more money could be spent in this area? If it does mean that, does it not bring it smack up against the department that is responsible for spending? In other words, there would be a divided voice. You may well find the department takes one view and Ofcom takes another. Perhaps that is not the intention. However, it is such an extraordinarily wide definition that it seems that Ofcom would be entirely entitled to take whatever view it wanted as a result of this.

The most useful thing that the Minister could do is to give us examples of what this section means in practice. In other words, what does promoting appropriate levels of investment in public service media content actually mean when it comes down to it? That would be very much for the convenience of the House.

My Lords, I am grateful to the noble Lord, Lord Howard of Rising, for introducing this amendment and to the noble Lord, Lord Fowler, for his comments. It will already have been recognised in our debates on the two preceding groups of amendments that the Government have listened carefully to the anxieties that have been expressed in parts of the House about this issue. We have sought to respond as constructively as we can.

When we spoke about the issue in Committee, we made clear the importance of placing consideration of the need to promote investment in public service media content as one of the most important qualifiers of Ofcom’s principal duty. We made it clear that paragraph (b) places a clear requirement on Ofcom always to consider the impact of its decisions on the need to invest in public service media content.

Public service media content aims to fulfil the specific objectives set out in the Communications Act 2003 for the benefit of the public. The noble Lord, Lord Fowler, is undoubtedly an authority on that Act, and I have no doubt the noble Lord, Lord Howard of Rising, is becoming one. Certainly, I recall that the noble Lord, Lord Fowler, spent a great deal of time debating these issues when the Communications Act was eventually passed in 2003. The specific objective set out in that Act is the benefit to the public. That objective is highly valued by viewers and listeners and has clear social and economic benefits for the UK. Plurality of public service media content drives healthy competition with the BBC—I am sure that that will commend itself to the noble Lord, Lord Howard of Rising, and to his noble friend—and with purely commercial content.

I emphasise that, in fulfilling this obligation, Ofcom is not taking on new powers. This is a clarification of the powers that Ofcom has under the Communications Act in circumstances where, from time to time, the changing nature of media presents real and obvious anxieties. Changes to the market in recent years threaten aspects of public service media content. I know that the noble Lord, Lord Fowler, and the House committee that he chairs have drawn attention to these matters when we have debated these points in the House on the broader issue of broadcasting policy.

We consider that Ofcom’s existing duty to consider, where relevant, the desirability of promoting the fulfilment of the purposes of public service broadcasting no longer goes far enough. We risk losing plurality in certain genres of public service content. We are not seeking to make Ofcom intrusive but to see that it is placed to evaluate where it can encourage investment and where loss of plurality would be a cost to society. I know that the noble Lord, Lord Howard of Rising, sometimes needs persuading on this point, but we are concerned to emphasise that economic benefits must include social benefits for the community in terms of access to a plurality of sources of provision. It would be detrimental to society and to the industry if we saw erosion take place in that regard, and Ofcom would have no powers to respond to it. The House will appreciate that the Bill seeks to project the discussion and the necessary provisions into the immediately foreseeable future and the more distant future. We want to see Ofcom adequately equipped to fulfil its obligations in that context. Clause 1 therefore strengthens Ofcom’s existing duty under the Communications Act and makes a firm commitment to the need to promote investment in our public service media content.

A few moments ago, we sought from the government side to clarify the meaning of this clause by additional amendments, which is a reflection of the debate that we had in Committee. I hope, therefore, that that is regarded as progress. I emphasise that we cannot predetermine the form and delivery of public service media content in every respect in the years to come. This is obvious from the rapid changes which have arisen from digitalisation over the past decade. It is important that Clause 1 gives Ofcom sufficient flexibility to take into account new forms of public service media content provided by means of the internet, where it is appropriate to do so.

I emphasise—at least to allay, if I can, the concerns of the noble Lord, Lord Howard; and I think that I will probably be able take the noble Lord, Lord Fowler, with me on this point, though I may be presuming too much—that Ofcom will be required to consider the need to promote investment in public service media content only when performing its principal duty as identified in the 2003 Act—and nothing in this Bill detracts from it—to further the interests of citizens and consumers as it carries out its functions. That is the context in which Ofcom will continue to act. I hope that the noble Lord will therefore feel that the Government’s case is made out, against the background of the emendations that we have made by the previous government amendments, and that he can safely withdraw his amendment.

Do I understand from the Minister’s remarks that the answer to my question is yes—that Ofcom can in fact advocate more public spending in this particular cause?

Yes, my Lords; but Ofcom, of course, operates within the constraints established in existing legislation. On the noble Lord’s suggestion that this might give rise to tensions between the department and Ofcom, I have no doubt that in an extreme case, where the issue was of such substance that Ofcom was convinced of very substantial investment being necessary, it is inconceivable that the Secretary of State and his department would not be clearly aware of such issues and would not be very much part of the public debate which had identified the nature of the threat to the public of the loss of plurality of services. It is not as if, under this Bill, Ofcom is operating in a vacuum in which wider considerations are not taken into account. In fact, as we have indicated all along, Ofcom is to take firmly into account the interests of citizens and consumers. The noble Lord, Lord Fowler, would be the first to identify the fact that when we ask Ofcom to do that, we expect it to be all too well aware of the points being made by Ministers, by informed opinion in the other place, and, dare I say it, by informed opinion in this place too, of which the noble Lord’s committee might be an important part.

I thank the Minister for his reply. I also thank my noble friend Lord Fowler for his support; it is always nice to have support from such a knowledgeable and distinguished source. If we take it that we accept the investment need and the desirability of the investment, as explained by the Minister, it seems that in seeking to improve the width and breadth of what Ofcom can do, the Government may have gone too far. I can understand the requirement to maintain plurality, but if the Minister reads through my remarks he will see that they could be interpreted as applying to all sorts of things that might be miles away from what the Minister and the Government are thinking of. Perhaps he would like to give that some thought, but in the mean time I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendments 5 to 7

Moved by

5: Clause 1, page 1, line 10, leave out “appropriate levels of”

6: Clause 1, page 1, line 11, after “content” insert “, where appropriate”

7: Clause 1, page 1, line 12, leave out “, wherever possible” and insert “(taking account of the interests of citizens and the interests of consumers in relevant markets)”

Amendments 5 to 7 agreed.

Amendment 8

Moved by

8: Clause 1, page 2, line 2, at end insert—

“( ) After subsection (4)(e) insert—

“( ) the desirability of encouraging competition in electronic communications services provided over communications networks;( ) the needs of the emergency services and the providers of critical national infrastructure;”.”

My Lords, this amendment brings forward some issues that we discussed at length in Committee. There are two quite separate issues. The first reflects a debate, which the Government have dealt quite well with in their Amendment 6, on the fact that we needed to remind Ofcom of its duty to citizens and customers.

One particular illustration of that—which struck me as we were doing research for the Committee and which I would like the Government to take account of in the first part of this amendment—is the way in which Ofcom has chosen to deal with various electronic communications service monopolies or effective monopolies. One of the fundamental purposes of Ofcom ought to be to stand up for the consumer where we, as a Government, and it, as Ofcom, have allowed effective monopolies to be created. These are monopolies like Microsoft’s operating systems. I see that the European Commission has had a hand in unlinking Microsoft from Internet Explorer and letting the other browser producers have wider access to Microsoft’s customers. This sort of effective monopoly comes from having taken one decision and then being bound into others, which is current in bits of the communication market.

I give two examples. If you are a subscriber to British Telecom’s voice over internet services, you will find that you are excluded from all but their own directory enquiries. You actually cannot get through to their competitors at all—the numbers are blocked—whereas we have been to considerable lengths, in other spheres, to make sure that people had equal access to all the competitors on landlines. It is time that Ofcom said something about the desirability of that practice. Locking customers in to essentially uncompetitive services is something which Ofcom ought to be taking into account. Instead, it seems to be totally focused on wanting British Telecom and other voice over internet providers to be able to make substantial profits because it sees it as a young industry. I do not think that it is a young industry; it is becoming a pretty old and universal industry now. Ofcom ought to be coming back to say, “Right, you’ve grown up, lads. Now there is a grown-up set of rules for you to obey”.

Even in mobile telecoms, which is a pretty mature industry, you find some strange practices in this country. Several of the operators will charge you £1.50 to access a competitive directory enquiries service, whereas in France, where the authorities have taken action, the mobile telecom operators impose a mark-up of about 15 per cent on the price charged by the directory service provider. It is something like four times as high in this country, which is due entirely to the fact that Ofcom has refused to do anything about it. It seems to me that Ofcom should be reminded that it has a real duty to the customer and that there are real problems here which it ought to be moving gently and sensibly to sort out. It is a major force and has a lot of power. It does not need legislation or litigation to deal with these problems. All it needs to do is to come out and say that it finds these practices undesirable. Over time they will go because otherwise, as I am sure the industry realises, there will be legislation or litigation to make sure it happens. However, Ofcom absolutely has to stand up for the consumer in these sort of cases.

The second part of the amendment deals with the provision of spectrum to the emergency services. I am afraid that I have had a very unsatisfactory letter from Ministers on this. My basic case is that we know that at some stage there will be a demand for additional spectrum for the emergency services. It is not there at the moment because they do not have the budget, and they do not have the budget because budgets are being squeezed everywhere. However, it is clear that the situation in which the emergency services operate on kit whose concept is 10 to 15 years old cannot last.

The capacity and capability of mobile telecommuni- cations have vastly increased and look set to increase further. When we come to the point—perhaps five years in the future—when we feel prosperous again and decide that the provision we make for our emergency services should be stepped up, we should have the capacity to do so. In their letter to me, the Government recognise that this is likely to be around the 1-gigahertz point in the spectrum—the bit of the spectrum which has been freed up by the digital dividend and which is being looked at in a European context for harmonisation. It is the bit of the spectrum which Ofcom is determined to sell as quickly as possible to the highest bidder. Therefore, when we reach the point when we want to do something for our emergency services, we will have to put them in another bit of the spectrum, and the kit that we have to buy for them will be a great deal more expensive because it will have to be arranged specially. There will be no opportunity, as there has been with the current system, for our industries which supply the kit to market that kit world wide.

The current system has been a tremendous success. Taking standardisation forward for the current emergency services spectrum, we have been able to sell the kit that we produced for ourselves to a very large number of other countries. That has been a great boon to British industry, which is very much in the lead in this sector. However, the Government are refusing to recognise that. They say that they want to sell the spectrum for which they can find a commercial demand now and set nothing aside for the future emergency services spectrum. That seems to be a dangerous and muddle-headed approach. I do not think that they will have time to do it before the election, so perhaps it will be their successor who has control over this. I believe that one function of government, and therefore one function of Ofcom, ought to be to have regard to our long-term requirements as a nation regarding the spectrum that we want to use for our national security and our emergency services. Subordinating that to short-term commercial interests seems extremely foolish. I beg to move.

My Lords, I support the amendment wholeheartedly, especially the part concerning the emergency services and spectrum for the critical national infrastructure. Sometimes we forget that the utilities such as electricity and water, on which we are totally dependent, rely on telecommunications for their infrastructure and that, as sophistication increases and control systems get better, they, too, will need a larger bandwidth. If we do not start reserving this at a strategic level, it will get sold.

The big challenge at the moment concerns the huge shortfall in finance at government level. Whichever party, or perhaps coalition, is in power after the next election, one easy way to try to raise money will be to sell a full spectrum quickly. However, this is not a vote-catching issue. As the noble Lord, Lord Lucas, said, we will wake up at some point in the future to find that, instead, we are faced with a huge expense because this spectrum, under the guise of efficiency, market forces and so on, has been sold off.

I, too, have received letters saying that the Government’s approach to this at the moment is totally inadequate. I hope that the Government will listen and include something at Third Reading or when the Bill goes through the Commons in order to protect with absolute certainty the spectrum that will be needed for international co-operation, for our emergency services and for our critical national infrastructure; otherwise, one morning we may wake up to find that there is no electricity.

My Lords, I supported this amendment, or one very similar to it, in Committee. The more I have heard the noble Lord, Lord Lucas, expand on this amendment and the more information I have received from other sources, the keener I am to support it. The example of Microsoft being “encouraged” by Europe to open up to competition is absolutely as it should be. Those of us who live in areas with very poor broadband provision are aware of just how much competition is needed to ensure that the latest methods gain ground to the benefit of us all. However, as has been said, the emergency services aspect of all this is absolutely crucial. During our mini crisis with the snow and so on, a number of areas were failed by a lack of resources and a lack of megabytes. Therefore, I am very much in favour of the amendment. Together with the noble Earl, Lord Erroll, I hope that the Government will take this matter equally seriously, realise how much support there is for it and perhaps bring back an amendment of their own.

My Lords, there is a lot of sympathy from these Benches for much of the amendment. A lot of the debate about how we best equip this country for the digital economy has been focused on investment in infrastructure. Although it is important that the necessary infrastructure is in place, particularly for the next generation of broadband, what will drive demand for increased broadband speeds are the services that can be delivered. There is therefore some sense in ensuring that Ofcom gives regard to the promotion of competition in electronic communications services. I am always reluctant to add to a regulator’s duties unless there is a specific problem that needs addressing, and I should be interested in hearing the Minister’s view on whether this is indeed the case.

Finally, I want to deal with the second part of the amendment regarding the emergency services and critical national infrastructure. It seems obvious that our communication networks must be able to serve those two critical areas. We must be aware of any potential problems with either the emergency services or our national infrastructure. I only ask whether Ofcom is currently equipped to do such a job. As a largely economic regulator, I wonder whether it has the necessary skills for this particular role. I look forward with interest to hearing what the Minister says.

My Lords, this amendment is in two parts, and the first part concerns the duties of Ofcom in relation to competition and the desirability of encouraging competition. I did not quite recognise the world that was being described. I see a world where there is a lot of competition in relation to broadband services and telecoms and mobile services. Should we be complacent? No, we should not, for some of the more complicated reasons addressed by the noble Lord, Lord Lucas.

However, I stress that with respect to every decision it takes, Ofcom must, where it is the appropriate means of furthering the interests of consumers, promote competition in the markets that it regulates. Furthermore, Ofcom must, in any event, consider the desirability of promoting competition in those markets. Therefore, it has an emphatic duty in that regard. Again, if one looks at the range of service providers in internet services and telecoms, both fixed network and mobile, one sees—without suggesting that we should be complacent—a wealth of evidence of real competition. In addition, Ofcom addresses anti-competitive practices and agreements. Indeed, this underpins the majority of its work. Therefore, if we have the kind of scenarios that the noble Lord, Lord Lucas, described, they clearly need to be referred to Ofcom.

It is therefore not clear just what the proposed amendment would add, and, on that basis, the Government cannot agree with it. I tend to agree—I do not always—with the noble Lord, Lord Howard, that we would not want to extend Ofcom’s powers if there were not the need for it. I absolutely agree that it is about driving demand for broadband services, and that is what it has been doing pretty well.

On the second part of the amendment, my understanding is that the noble Lord, Lord Lucas, is concerned to ensure that Ofcom considers the spectrum needs of the emergency services and providers of critical national infrastructure. I stress that Ofcom already has a duty under Section 3(4)(f) of the Communications Act to consider,

“the different needs and interests … of all persons”,

when considering spectrum use. Importantly, this includes the needs and interests of the emergency services and providers of critical national infrastructure. I understand and take the point made by the noble Earl, Lord Erroll, about the way in which our infrastructures control their own networks, so that there will be more requirement for spectrum. However, Ofcom already has a duty to consider that. As I think we made clear in a previous debate, consultation is already taking place.

The Secretary of State will, where he considers it appropriate, use the power given to him by the Wireless Telegraphy Act to require Ofcom to make spectrum available for certain uses or users. Therefore, we consider that no amendment is needed to give effect to the intentions of the noble Lord, Lord Lucas. We do not see a scenario in which Ofcom blithely goes ahead and disposes of all the spectrum in a grand sale or auction. I do not think that we will ever see quite what we saw on third generation—but who knows? However, it certainly does not have the power to do that without considering the requirements of the emergency services and critical national infrastructure.

I can offer the noble Lord an assurance that if the emergency services have a robust case for additional spectrum which they are unable to source from the market, a process exists to address that need. Ensuring public safety—to address the concerns of the noble Baroness, Lady Howe—would be a paramount consideration in that process.

The Civil Contingencies Act 2004 contains emergency powers to allow the making of special temporary legislation to deal with the most serious of emergencies. Such legislation could cover the temporary allocation of spectrum to the emergency services and critical national infrastructure in the event of a national emergency. However, the emergency would have to be of sufficient magnitude that serious damage to human welfare, the environment or security were threatened, existing powers are insufficient and the measures being taken are proportionate.

I therefore feel that Ofcom’s existing powers can deal with the requirements of the emergency services. It has a duty to do so. I hope that in the light of the assurances that I have placed on the record, the noble Lord will feel capable of withdrawing his amendment.

I thank the Minister very much for that reply. I think that he has convinced me that this amendment should not go into the Bill. On the first part, I am clear that the matter is already there to his satisfaction in the current legislation, and I think that we both agree that this is merely a question of Ofcom not performing as it should the duties that it already has. So I shall continue to badger Ofcom about that. When it comes to the allocation of spectrum, there is a substantial division between us; but it is not a division for this legislation but a matter of the policy to be pursued by the Government in the long-term interest of the nation. I do not see, for all his professing the supremacy of the requirements of national security and so on, that the actions he is allowing Ofcom to take fit in with that. For now, however, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendment 9

Moved by

9: Clause 1, page 2, line 14, at end insert “, excluding online newspaper and magazine websites”

Let me begin by once again declaring my interest in this matter as chairman of the Press Complaints Commission and making it clear that I am not here to represent or support the newspaper industry. My interest relates wholly and directly to the crucial issue of self-regulation or, as I would prefer to call it, regulation that is entirely independent of the state.

My concern is to ensure that the Bill does not diminish the freedom of the press and magazine industry to publish news online that may be partial, including news where there is a person exercising editorial control over that published material. I am grateful to the Minister for taking the time to discuss this matter with me between Committee and Report.

The issue is a thorny one. I accept without reservation that, where news is disseminated by what can be clearly defined as public service broadcasting, the provision of that news must be subject to the usual rules of impartiality. What is not clear in the Bill is the situation with regard to newspaper and magazine websites, which are not regulated by Ofcom and are not subject to any rules or codes of impartiality. They are regulated by the Press Complaints Commission, which, of course, is a body that itself is not regulated by statute and is independent both of the newspaper industry and of the state. I am concerned that the proposed amendment to the Communications Act in Clause 1(5)(c) appears to give Ofcom new powers to regulate newspaper and magazine websites. I appreciate that Ofcom has given clarification and guidance notes that this will not be its intention, but clearly, if that is not incorporated into primary legislation, theoretically at least the power will exist.

As I am sure the Minister is aware, the audiovisual media services directive recital states:

“The scope of this directive should not cover electronic versions of newspapers and magazines”.

I am concerned that the exemption of newspaper and magazine websites, explicitly mentioned in the AVMS directive, has still not been incorporated into English law, either in the Audiovisual Media Services Regulations 2009 or, thus far, by the Bill as currently drafted, and that the audiovisual material on the websites of magazines and business publishers may be caught by the regulations despite this not being the intention of the directive. It is important to note that the Press Complaints Commission remit covers editorial material on newspaper and magazine websites where it meets two key requirements: that the editor of the newspaper or magazine is responsible for it and could reasonably have been expected both to exercise editorial control over it and apply the terms of the code; and that it was not pre-edited to conform to the online or offline standard of any other media regulatory body.

In effect, if the material is not sourced from broadcasters, such as the BBC or ITN, but is original to the paper, it is covered by the Press Complaints Commission, not by Ofcom. In moving this amendment, I am therefore respectfully asking the Government to make it clear that the Bill’s extensions of Ofcom’s general duties will not give Ofcom any new powers over any content, including audiovisual content, on newspaper and magazine websites. I beg to move.

I strongly support this amendment. My noble friend Lady Buscombe has, with her usual laser-like precision, tackled one problematic aspect of the Bill’s definition of public service media content—namely, that it will mean that Ofcom has a duty to promote investment in newspaper and magazine websites. At the moment the newspaper industry has its own regulator, the Press Complaints Commission, chaired so ably by the noble Baroness. It would not be wise to extend Ofcom’s remit into this realm. I am not sure that the sector would appreciate Ofcom having a specific duty to promote investment into it. As the noble Baroness has made these points far better than I will be able to do, I will simply congratulate her on bringing forward the amendment and hope that the Minister listens carefully.

I bow to no one in my admiration for the laser-like precision of the noble Baroness, Lady Buscombe, but I would like to clarify something that bothers me. Is the noble Baroness suggesting that, in the event that broadcast material that had been turned down or not used by the public service broadcasters because of its content became available, a newspaper or magazine could put it on its website as broadcast material, avoid any sanctions that Ofcom could bring and fall under the PCC only? If that is the case, the PCC is giving itself an enormous new problem. The other day, the noble Baroness was very eloquent about a particularly difficult situation that she felt did not quite cross the line. I suggest that a great deal of material will start crossing the line. I want to be clear about what is broadcast and what is material that would normally be expected to come from a newspaper or magazine.

I shall put it the other way round. The BBC website, in particular, often provides links to other websites. If the noble Baroness’s amendment were accepted, would the BBC be unable to link to a newspaper story that was not balanced or would that story then become part of the process of balancing by the BBC Trust or Ofcom?

Following that intervention, I hope that the Minister will range widely in his answer. It is not clear to me where old terms such as “newspaper” and “magazine” belong in the modern world. Many of the magazines that I read have no physical existence. Page-turning technology means that you now get something that feels very like a magazine. You can browse it and enjoy it very much as you do a paper magazine. New sources are developing outside the newspaper industry and, the more the newspaper industry tries to make life difficult for its customers, the more these sources will flourish. Where do the Government see the boundary between the part of the media world that has to have balance and the rest of it that does not? How will they draw that boundary in relation to things that are happening on the internet now?

These are the seductions of office, my Lords. The last three contributors invited me to range widely as a result of this amendment. I think that the noble Lord, Lord Lucas, is asking me to define in a few succinct phrases over the course of an hour and half the purposes of this section of the Bill. I shall resist such blandishments and opportunities because noble Lords who contributed to this debate will recognise that I am concerned to allay the anxieties that the noble Baroness, Lady Buscombe, voiced when we discussed these issues in Committee. When we subsequently met to clarify them, she spoke on behalf of the Press Complaints Commission to express its anxieties. That is a significant enough body for me to address it formally to give the assurances that I can give. I hope that I will obtain the withdrawal of this amendment, despite the fact that my reply will fall somewhat short of the expectations, and even perhaps the hopes, of my noble friend Lord Puttnam. It will certainly fall short of the expectations of my noble friend Lord Maxton and, by a country mile, of the hopes of the noble Lord, Lord Lucas. I shall not go over this ground again, nor will I engage in the kind of debate where, if we were not careful, we could be here for many a long hour.

In her amendment, the noble Baroness makes it clear that she is concerned that Clause 1 grants Ofcom new powers to regulate newspaper websites. I reassure her that Clause 1 does not grant Ofcom any powers to regulate newspaper websites, including audiovisual content. I should also make it clear that the definition of “media services” in subsection (5) covers newspaper websites. As ever with government Bills, this is quite deliberate and constructive. It may benefit newspaper websites to the extent that, in carrying out its functions, Ofcom will be required under Clause 1 to have regard to the need to promote investment in content included in newspaper websites that contributes or may contribute to the public service objectives at the heart of the obligation on Ofcom. Ofcom has advised us that such instances will be rare, but I hope that noble Lords will agree that including online newspapers in the definition of “media services” would be advantageous.

I want to emphasise an additional point. The AVMS regulations 2009 require Ofcom to regulate on-demand programme services. The regulations define an on-demand programme service as having as its principal purpose the provision of programmes of form and content comparable to programmes normally included in television programme services. The principal purpose of newspaper websites is not to provide on-demand programme services, even where they currently provide some audiovisual content. It is theoretically possible that newspaper websites could provide such on-demand programme services in future. In such a case, the regulations would not—I emphasise this again, as it is the main cause of the anxiety of the noble Baroness, Lady Buscombe—require Ofcom to regulate the entire newspaper website, just the on-demand service that it is obliged to regulate.

That is the response to the amendment. There may be—I hope not—occasions on later amendments when I can deliberate a little further as I have been invited to do on this amendment, but this amendment was tabled with the specific objective in mind that we should clarify the matter. I have sought to do so and I hope that noble Baroness will withdraw her amendment.

I thank the Minister for his reply. Perhaps I can remind noble Lords that, as this is Report, it was not within my power to respond to questions. The Minister responded in a way that is helpful to my amendment. We have to allow for some pragmatism because the focus of the amendment is the question mark over new forms of public service media content. There is a need to differentiate the regulation of the websites of the press and the magazine industry and the regulation of a situation where there is public service media content. As the Minister suggested, there may be rare instances where that may include content that originated from newspapers and is specifically aimed at or provided for public service broadcast. I thank the Minister for taking the time to cover this crucial issue and to give me a helpful reply. I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 9A

Moved by

9A: After Clause 1, insert the following new Clause—

“Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and signal carrying cables

(1) The Communications Act 2003 is amended as follows.

(2) After subsection 27 insert—

27A “Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and signal carrying cables

(1) It shall be the duty of OFCOM to establish a scheme for the reporting of complaints about, and requests for repairs to, broadband and associated data and signal carrying cables, and services.

(2) When establishing the scheme under subsection (1), OFCOM must ensure that the scheme—

(a) allows for the reporting of complaints about the quality of broadband services (including faults and complaints about capacity to carry data or signalling) by registered subscribers, whether or not the subscribers are an end user for that service;(b) places responsibility for every complaint or request with either the broadband service provider or the owner of the communication cable (depending on the nature of the complaint, fault or request), and ensures that in no case should a complaint, fault or request not be attached such responsibility;(c) requires all repairs or alterations to the communication cables to be carried out in such a way as to accommodate and facilitate reasonably anticipated upgrades to the broadband and associated services;(d) requires a broadband service provider or an owner or owners of the communication cables to carry out necessary repairs or upgrades to the same or a better standard than that pertained prior to the complaint or request.””

My Lords, I have taken over this amendment from the noble Lord, Lord Laird, because I originally wanted to table it myself but I was away at the time and could not get my e-mail to work from abroad, sadly, and could not get through to the Public Bill Office. The objective of this amendment is to try to strengthen the Government’s hand in what they put through in Amendments 2 and 3, effectively, which is to put a duty on Ofcom to sort out a particular part of communications infrastructure which unfortunately has heavy underinvestment. The challenge that this amendment seeks to address is the lack of investment in maintaining the local loop, which is the part from the exchange to the customer, when it falls outside areas of high population density: in other words, rural areas and bits of towns which are not covered particularly well.

The problem arises because Openreach is a separate company but is also a subsidiary of BT, and it is responsible for the repairs and maintenance of this part of the infrastructure. Unfortunately, it suffers from severe financial constraints, not all of which are operational. For instance, there is a huge pension deficit in BT, which means that it has had to cut back on maintenance to a bare minimum. The trouble is that the average non-technical customer has real problems in continuing to receive the service for which they originally contracted their ISP. The ISPs have problems delivering it because they are finding that the lines are degrading. I have noticed that, the more I have said this in other fora, the more people join in and say, “Exactly; my line is getting worse and worse”.

Let us say that you have got a fault on a line which has not been unbundled: in other words, it is still in BT’s ownership. You are paying BT Retail for the line, and you are paying an ISP to provide you with broadband over that line. It gets a service from BT Wholesale, which runs what is called the backhaul from the exchange onto the main internet. Openreach is responsible for maintaining and fixing any faults on the line. There are four service entities involved, and there may be more. There are Chinese walls between these, and there is a lot of buck-passing. Let us say that your broadband is not working. You are meant to ring up your ISP, and tell it so. It is then allowed to test the line, and it may well use BT Retail stuff to do that, or it may be Openreach. Do not hold me to the exact detail of who owns which bit. BT Retail’s universal service obligation only covers voice over copper, not the maintenance of broadband connections. So it will probably pass that test, but it is still not adequate for broadband, so it comes back and reports that the line is not faulty, but you know, empirically, that it is.

What do you do next? This is a challenge, because you cannot talk to BT Wholesale. The other thing that could be happening is that either BT Wholesale, or your ISP, could be throttling back your internet connection and reducing the speed on it because it has a lot of traffic, or they could be doing what they call traffic shaping, which is allowing only certain types of traffic through at full speed. This is done through a digital line management unit, which is connected to your digital subscriber line access management unit in the exchange. These are technical things, but they will not tell you if they are doing them. There is no way of finding out, so you are stuck. I have discovered, because my line fell to under half its speed over a four-year period, that, when this sort of thing happens, if you can pester people persistently over a six-month period, and you know something about it, and eventually your line fails completely, there are some excellent engineers at Openreach who can and will come and sort it out. My line is now nearly treble the speed it was a couple of months ago, so they can do it. There is not a real problem with the lines. The trouble is the underinvestment.

Amendment 9A has a couple of main points. The proposed new subsections 2(a) and 2(b) are supposed to deal with the problem of buck-passing, so that somebody is responsible for sorting out your fault. The next bit addresses the part of the problem whereby, because of the underinvestment and the fact that they are kept on a very short rein, whenever they come to repair your line, they will do the minimum possible to get it working to the minimum standard possible, because there is not much money. Therefore, they could be upgrading these lines when they replace stretches of line. They could be putting in 0.9mm copper instead of 0.5mm: but no, it will go in at 0.5mm, which tends to be universal. With broadband, we want to get better stuff in there, but they will not do that because it costs more money. That is why, under proposed new subsections 2(c) and 2(d), repairs would not be done at the bare minimum. Where possible, they should try to increase the capacity of those lines and improve them, and use that opportunity to steadily improve the network in distant rural points. This is supposed to be positive, and it would give Ofcom powers to put something together that might manage some of the problem. This will also require some co-operation and some financial sorting out, and some other things, but maybe it is a start. I beg to move.

My Lords, I did not plan to speak to this amendment but, speaking as a consumer of broadband services, it is quite an inspired amendment, whether or not the Government are sympathetic to it. It is exactly what Ofcom should be doing to allay the frustrations of consumers of broadband services, exactly in the way that the noble Earl, Lord Erroll, described. Many broadband users will have had exactly that experience, where you try to fix someone in this whole chain with responsibility, and wholly fail to do so. I hope that the Minister will be sympathetic, but even if he is not, I hope that Ofcom, when it gets a chance to read this debate, will know and understand some of the frustrations. This is not exceptional. This kind of example is very much a day-to-day situation.

My Lords, although consumer protection is a necessary and serious issue, I do not think this proposed new clause is needed, because the rights of consumers are extensively covered.

I will not reply to the technical nature of the contribution made by the noble Earl, Lord Erroll, because I do not think that would be an appropriate use of time. I understand the points that he made, having worked at some time in my life on some of that network. I want to address the underlying concern. Communications providers are required by Ofcom to establish procedures for handling complaints from consumers where they feel that they are not receiving adequate service. Failure to implement an adequate complaints procedure is actionable by Ofcom. I understand the point made by the noble Earl. It can be difficult for ordinary consumers to try to pinpoint where the blame lies and to get the appropriate action taken, but if it is not being handled correctly by the service providers, and if they have not got an adequate complaints procedure, that is actionable by Ofcom.

If the complaint cannot be resolved within the consumer complaint procedures, consumers are able to file an application with two independent alternative dispute resolution schemes. These are Otelo and CISAS, and do not ask me to explain those acronyms. These schemes can investigate the circumstances of a complaint and make a judgment that is binding on the provider, but not the consumer, who is always free to pursue separate legal action should satisfactory resolution not be possible.

Ofcom has also taken steps to promote competition and improve the incentives of providers to invest in and maintain broadband infrastructure, including by creating a competitive environment that allows investors who see a case for investing in networks to do so, and ensuring that consumers can make informed choices regarding services and providers, including publishing research on broadband speeds, which was one of the major concerns expressed by the noble Earl, Lord Erroll. The incentives provided by competition should help to eliminate poor service levels for consumers since they will be free, subject to any minimum contract term, to move to another provider offering higher levels of service. The UK has a healthy market for broadband provision, with a wide range of providers offering retail services. Complaints about the absence of supply were the reason for the Government’s universal service commitment, which aims to deliver a minimum level of service at 2 megabits per second to virtually every community in the UK by 2012, including rural areas.

The amendment asks Ofcom to establish a scheme to deal with complaints, faults and requests regarding broadband and its associated data- and signal-carrying cables. Whatever the problems, getting Ofcom to handle this cannot be the right way. It would not even be the direct service provider. This would be a good example of extending the powers of Ofcom in a direction which would not solve the problem. There are some problems, and I understand the points which the noble Earl, Lord Erroll, and the noble Lord, Lord Clement-Jones, are making, but this is not the right solution. As I say, there are already facilities for consumers who want to complain, and Ofcom already has the power to take action if the complaints procedure is not adequate. In the light of that explanation, I urge the noble Earl to withdraw the amendment.

I thank the Minister for his reply. I just hope that the Government will think about this matter a little harder before it goes to another place, because something should be put into the Bill. Yes, you can complain to Otelo or CISAS about BT Retail or your ISP, who are your communication service providers, but the challenge is that you cannot talk to the very people who are responsible for doing something about it, who are Openreach or BT Wholesale. There is a complete disconnection between the two because of the Chinese walls that were set up for competitive reasons: to try to prevent BT from looking after its own. Unfortunately, the structure that has been set up does not work, and it will take someone else from outside—Ofcom is the only organisation that can do this—to realign the way in which the two work together. At that point, it should be able to stand back again.

What is happening at the moment is not working. It is too easy for people to pass the buck to each other. If you complain to Otelo or CISAS, BT Retail will say simply that it has done all that it can, and Otelo or CISAS will have to agree that it has. I am afraid that there is a problem here that needs to be addressed, and it would be nice if the Minister could think about this and if the Government could do something about it. My amendment in essence seeks to push things in the right direction. I probably should have tabled it at an earlier stage, but had not thought about the matter hard enough. With that, I beg leave to withdraw the amendment.

Amendment 9A withdrawn.

Clause 2 : OFCOM reports on infrastructure, internet domain names etc

Amendment 10

Moved by

10: Clause 2, page 2, line 32, leave out from “must” to “and” in line 33 and insert “, if requested to do so by the Secretary of State, prepare reports”

My Lords, Amendment 10 seeks to address in practical terms one of the major concerns that we on these Benches currently have with the balance of power between the regulator and the Government. The balance is weighted too far in favour of the regulator, and we would like it to be tilted more towards the Government. This can be done by establishing the right framework. Unfortunately, in this Bill, the Government seem to be happy to carry on as things are.

I have no doubt that these reports will be vital in assisting the Secretary of State in determining priorities for communications policies. There is no doubt that Ofcom is the body that should carry out such an assessment at arm’s length from Ministers. However, I do not understand why the Minister’s hands need to be tied by stipulating how often these reports are produced. The Secretary of State is missing a trick if he insists on defining the regularity of these reports so rigidly.

In many senses, it does not matter whether the report is every two years, as was originally suggested; every three years, as is now suggested; or every four years, as some, such as British Telecom, argue. It seems that the Government wanted to give ground on some issues but were not prepared to go the whole way, and as such they decided on the third suggestion as a halfway house.

More significant are government Amendments 13 and 14, which are welcome. It has always seemed obvious that any reports that are of significance should be placed in the public domain, and I am glad that the Government now agree. I beg to move.

My Lords, in Committee, a number of your Lordships had concerns about the frequency of the reports in Clause 2, which it was originally proposed would be every two years. The noble Lords, Lord Howard and Lord De Mauley, suggested then, as they have again today, that the reports should be prepared only at the request of the Secretary of State. The noble Lords, Lord Razzall and Lord Clement-Jones, suggested that four years would be more appropriate, and, during the robust debate that followed, the noble Lord, Lord Puttnam, very helpfully suggested a compromise position of three years as being more “appropriate and reasonable”. As I recall, that suggestion was warmly received by the Committee.

In the light of that debate, the Government have considered this issue and now propose three-yearly reporting, which will be in line with the existing prescribed timetable for Ofcom to prepare other reports, for example the market reviews, and the review of the media ownership rules. I hope that this will reassure your Lordships that any burden on Ofcom or industry as a result of this reporting duty will be kept to the minimum.

My Lords, will the Minister clarify that there will be the opportunity for other speakers in this debate to intervene after him? If he is making his ministerial reply now, it will be impossible for those of us who wish to say something in response to the amendment to intervene.

My Lords, that is the problem; it is not possible on Report for other speakers to take part in the debate on an amendment after the Minister has responded.

I suggest then that I speak to my amendment and not respond at this point to Amendment 10.

Why do we think that these reports should be produced regularly and not only when requested by the Secretary of State, as the noble Lord, Lord Howard, suggested? The point of this provision is to ensure that the condition of the nation’s communications infrastructure is kept under constant review, and that not only are Ministers provided with regular information about it but their attention is regularly directed towards it. If a Secretary of State gets to the point where he feels that he needs a report on the condition of the communications infrastructure because of particular concerns, presumably there is something to worry about and it is already too late to take action to head off that concern.

Regular reports will ensure that Ministers have good, regular and consistent information that enables them to be well placed to take policy decisions that will place the UK at the top of the league table on communications infrastructure, instead of having to struggle to catch up, as we did with first-generation broadband and are in danger of having to do with high-speed broadband.

Finally, I reassure your Lordships that Ofcom will still be required to alert the Secretary of State to any significant developments in the sector that are likely to have a significant adverse impact on businesses or on the general public in between reports.

In Committee, the noble Lords, Lord Lucas and Lord Whitty, expressed a strong view, which was supported by others, that the reports that are prepared by Ofcom on the infrastructure and domain names and sent to the Secretary of State should be published. Our policy intention has always been that those reports will be published as soon as possible. Having considered the points that were made in Committee, we have concluded that for clarity it would be helpful to table a government amendment that requires the infrastructure reports in new Section 134A and the reports on internet domain names in new Section 134C of the Communications Act 2003 to be published by Ofcom.

As noble Lords will no doubt understand, commercially confidential information or information that should not be disclosed for other legitimate reasons—for example, law enforcement or personal privacy—should not be published. We therefore propose that Ofcom should not have to publish any material that would justifiably be withheld under the Freedom of Information Act.

My Lords, I apologise for disturbing the even flow of the Minister’s speech, but I wanted the opportunity to intervene very briefly. First, we on these Benches strongly support the new government amendments. As the Minister said, we originally suggested a period of four years, but due to the masterly compromise suggested by the noble Lord, Lord Puttnam, we are very happy with the additional one year. I believe that industry will be happier with that rather longer period, since it was felt that having to report every two years was going to be unduly onerous.

I also want to put on record that we are strongly of the view that these reports must be prepared by Ofcom, and that it is not good enough to wait until the Government requisition a report from Ofcom. Therefore, we are not of the view that Amendment 10 is desirable.

My ability to rise promptly is a bit restricted these days. I have made the points against Amendment 10. We do not want unnecessary reports, and I hope in the light of the assurances that I gave in moving the amendments, that the noble Lord, Lord Howard, will feel capable of withdrawing his amendment.

I hope I am allowed to speak now. This nice piece of paper says a Member can speak when the Minister speaks early in order to assist the House in debate—that is obviously what he was doing. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendments 11 to 13

Moved by

11: Clause 2, page 3, line 5, leave out “2” and insert “3”

12: Clause 2, page 3, line 7, leave out “2” and insert “3”

13: Clause 2, page 3, line 20, at end insert—

“(7) OFCOM must publish every report under this section—

(a) as soon as practicable after they send it to the Secretary of State, and(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.(8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.”

Amendments 11 to 13 agreed.

Amendment 13A

Moved by

13A: Clause 2, page 3, line 28, at end insert “giving due consideration to the interests of persons living in rural areas.”

My Lords, I shall speak also to Amendment 13B. This part of the Bill deals with Ofcom’s responsibility for spreading infrastructure, in the areas for which it is the regulator, across the whole of the nation. Whatever form of infrastructure we are talking about, it is common experience in rural areas of England, Wales, Scotland and Northern Ireland that the consumers, citizens and businesses that are located there have worse access, lower speeds in relation to broadband, more intermittency and generally a worse service than in urban and suburban areas. This applies not just to the remotest areas of Scotland, but also—I declare an interest in terms of my home address—in the borders of Dorset and Wiltshire. It is clear that if we are requiring Ofcom to report on progress in installing infrastructure in general, as this clause does, then the way in which we judge whether Ofcom has been successful—or Ofcom has judged the industry to be successful—must pay particular attention to the effect in rural areas.

In Committee, I was told that there was no need to spell out all the different potentially disadvantaged groups that Ofcom had to have regard to because that was written in Ofcom’s basic constitution. I sort of accept that. I was also told there was no need to require Ofcom to report separately to the devolved Administrations, so that they can tackle problems that may arise in their particular areas, because Ofcom always does that. However, this is a specific and new reporting requirement. It is one required by this Bill and it is one to which reference was made in the first debate today on the new clause on Ofcom’s responsibilities in relation to infrastructure. Whether you are talking about the changes in the effective operation of your mobile phone as you drive through the rural lanes of our country, whether you are talking about the speed of broadband or whether, equally importantly, you are talking about the ability to access public services and other information in rural areas digitally, then it is an important dimension of Ofcom fulfilling this responsibility that its reporting system should very specifically and very clearly cover the interests of rural consumers.

I am perfectly prepared to concede that the Government might have a better form of wording here. If anything, there probably should be a stronger form of wording. However, specific reference in the Bill to the rural areas in respect of this reporting mechanism is important. As distinct from one or two of my amendments later on, it ought to be a relatively easy amendment for the Government to accept. I beg to move.

My Lords, I have added my name to this amendment because I do think that this is a particularly important issue. I know the Minister addressed it briefly at the Committee stage so I went back and looked again at what has actually happened in a number of rural areas. People living in rural areas are not just another group. Because of the Government’s quite correct drive to get more services online, it has become essential for those people to be able to access those online services, some of which time out if things take too long because they have only a dial-up mechanism. The same applies to online banking. With banks and other outlets such as post offices closing, online access becomes ever more important.

The Minister may say that other agencies—for example, the regional development agencies—should have been responsible. Indeed, in many cases they did take forward investment effectively. However, that has been patchy. It has not been equal across the regions. Economic and social development are being very adversely affected and this is the least the Government can do to rectify the situation. A long time ago—in fact when the noble Lord, Lord Whitty, was Defra Minister in this House—there was much talk of rural-proofing. This would be one of the main things the Government could do to rural-proof. Perhaps the Government still do a check on their Bills to make sure that they are rural-proofed. I should be interested to know whether this one has been. If it has, the Government should immediately accept the amendment.

My Lords, this is an opportunity for the Government to indulge in a bit of joined-up strategic thinking. The challenge comes because these universal service obligations, or measures of service, are always population-based, so that it skews it immediately towards the high density areas, such as cities with high-rise blocks. If we do not create the infrastructure out in remote areas, people will be forced to move. As happened in various other preceding great revolutions, such as the industrial revolution, you will see a steady migration of population to where they will have to move to in order to take part in modern society. What you could end up doing is creating more deprived areas. This sounds terrible, as if I am predicting apocalyptic things. I am not trying to do that. However, you will see a general deprivation starting to occur. People will then worry about that and want to address it, and suddenly you will have to put in much more investment and much more money. These things have a knock-on effect—once a few people start to migrate, there is less justification for the infrastructure; then more people migrate, and suddenly it becomes untenable to live there, except for very elderly or very young people who perhaps do not need access.

It could also be used for positive moves, such as trying strategically to repopulate the Highlands. Farming was never going to repopulate the Highlands, and trying to keep a few people there crofting certainly never did. You could have viable communities up there, but there is no way you could justify putting the infrastructure in if it was on a population-based system. So it may be worth forcing Ofcom to report in a more strategic way, looking at how we use land and resources effectively in the UK.

My Lords, the previous Labour Administration in Scotland started a scheme to extend broadband specifically to rural and remote areas. Let us be clear: there is a difference between a remote area, where only a handful of people may live, and a rural area, which could be a village in the middle of Oxfordshire, for example and have a population of 1,000 or 1,500. There may be sufficient demand in that area to ensure the exchange is upgraded to take broadband, even though it may still be down a copper wire. There is already a scheme in Scotland. It is having problems in extending out to the remoter areas of the Highlands and Islands, but it does go out to what one would term the “rural areas” of Scotland.

I support everything that has been said. In Ireland, where I live, a report for the Government recently suggested that, counterintuitively, it was more important to have good, high-speed broadband access in rural areas than in city centres. Such access has already affected the migration of quite a lot of useful employment back into rural areas—the Highlands and Islands in Scotland are a very good example. It is a useful amendment which offers a direction of travel for the Government.

My Lords, I absolutely agree with the objective of the amendment, which is to ensure that Ofcom considers in its reports the interests of persons living in rural areas. However, as I said in Committee, the amendment is unnecessary because the Communications Act 2003, taken with the provisions in this Bill, already require Ofcom to do just that.

In precise terms, the objective of the amendment is already achieved by Section 3(4)(l) of the Communications Act 2003, which requires Ofcom to have regard, when relevant, to the different interests of persons living in rural—I stress that—as well as in urban areas. When that is read together with new Clause 134B(1)(b), which requires the report to cover,

“the geographic coverage of the different UK networks”,

I am sure that your Lordships will appreciate that the object of the amendment is achieved.

The clause talks of “geographic coverage” because there are sometimes circumstances where coverage may be problematic even in more urban areas, but as I am sure that the noble Lord, Lord Whitty, and the noble Baroness, Lady Miller, are well aware, the vast majority of areas where coverage of communications networks is an issue will be rural areas—or in some cases, as my noble friend Lord Maxton reminded us, it might be even more difficult for some of the more remote areas. That is precisely what paragraph (b) is intended to deal with.

In response to the noble Lord, Lord Puttnam, and the noble Earl, Lord Erroll, I say that we should remember that we are talking not just about the reports of Ofcom. I remind noble Lords that our report on Digital Britain made a specific commitment to ensure that all areas, including rural areas, have access to broadband of at least 2 megabytes per second by 2012. That is not the end of the problems of universal broadband service, but it is a commitment to ensure a basic standard for everybody. If only we could ensure that providers delivered that, it would please the noble Earl, Lord Erroll, if no one else.

In response to the concern expressed by my noble friend Lord Whitty and the noble Baroness, Lady Miller, I say that the commitment is already in existing legislation, coupled with the new requirements. It is amply demonstrated also in our commitment to ensuring a universal broadband service. In the light of that, I hope that my noble friend will feel capable of withdrawing his amendment.

My Lords, I am somewhat disappointed by that, because I thought that I had already said that the pre-existing requirement on Ofcom to take rural consumers and businesses into account is clear. However, we are talking about a new reporting mechanism, which requires Ofcom to report, for example, on the proportion of the population covered by the different UK networks. The problem is, as the noble Earl, Lord Erroll, and others said, and others implied, that progress being made nationally conceals that the proportion covered in rural areas is less and, in some cases, going backwards. Unless that is specifically written into the reporting mechanism, the fact that Ofcom in its process—

I repeat my assurance. The requirement will correspond to the new reporting procedure. The procedure will not somehow stand alone; it will have to embrace that requirement to cover the rural areas. I am talking now about the new reporting procedure, so I wonder whether there is an unnecessary difference of opinion here. I am trying to give an explicit assurance that the new reporting procedures will cover rural areas.

My Lords, I can understand that, with all the reference back to the Communications Act and the original set-up of Ofcom, I may have missed something and may be slightly confused. I am therefore prepared to withdraw the amendment. It would be useful if, between now and Third Reading or before the Bill goes to the House of Commons, those of us who are concerned could be pointed to where the new reporting mechanism is clearly covered by existing provisions. I did not follow that from my noble friend’s explanation; he undoubtedly has better briefing than me on this matter; but I should still like to see it in black and white. Subject to that, I beg leave to withdraw the amendment.

Amendment 13A withdrawn.

Amendment 13B not moved.

Amendment 14

Moved by

14: Clause 2, page 4, line 35, at end insert—

“(3) OFCOM must publish every report under this section—

(a) as soon as practicable after they send it to the Secretary of State, and(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.(4) OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.””

Amendment 14 agreed.

Amendment 14A

Moved by

14A: Clause 2, page 4, line 35, at end insert—

“Reports on climate change134D OFCOM reports on climate change

(1) OFCOM must, if directed to do so by the Secretary of State, require electronic communications networks and services providers to provide information on their preparedness for climate change.

(2) The type and format of the information to be collected by Ofcom from providers will be prescribed by the Secretary of State and will require:

(a) electronic communications providers to assess the risks from current and predicted climate change in relation to their functions,(b) electronic communications providers to assess their preparations for a changing climate, including information on the steps taken to reduce or remove the risks referred to under subsection 2(b).(3) Under section 134D, Ofcom are required to—

(a) request information from such networks and services providers as they consider appropriate, and(b) send the required information to the Secretary of State as soon as practicable.””

I shall speak also to Amendment 14B. I should declare an interest as a member of the Climate Change Adaptation Sub-Committee. I apologise for raising this issue only on Report. Discussions with Ofcom and the department have been ongoing. I am grateful to the Minister’s department for its engagement, but, having reached a point of impasse, I felt that I needed to bring forward the amendment.

Climate change will have an increasing impact on essential services in this country. Communication networks and services such as telecoms, the internet and broadcast media will be no exception. Perhaps I may give some examples: heat, floods and storms can knock out services, as can interruptions to power supplies. Transmission equipment can be jeopardised by stormy weather. In emergencies, communication services are vital not only for emergency response but for the public to gain information about what is happening during an emergency, as well as for the public to communicate with one another to gain reassurance about the safety and welfare of family and friends. During the Carlisle floods in 2005, when storms had brought down telecommunications and floods were increasing, Environment Agency staff nobly waded in and out of the local police station, itself under water, simply in order to keep communications open and the emergency response services in action.

Just at the time when emergencies do arise, the public want to get more information about these emergencies in order to be able to respond to them. They also want to be able to communicate with their nearest and dearest, with their places of work and with emergency services. I believe that the public have a right to expect that the communications infrastructure and services will be planned to take proper account of the medium-term and longer-term implications of climate change and that communications companies should report from time to time on their preparedness for and resilience to climate change. My Amendments 14A and 14B seek to ensure that the communications companies do so.

This is not an off-the-wall, unusual request to the communications companies. Those of your Lordships who helped to steer through the Climate Change Act will recall that, under that Act, a variety of public and business bodies—for example, the water companies and the energy companies—are required to report on their preparedness and their adaptation to the impact of climate change. The communications companies were not included in that group, I think by mistake rather than by design. The water companies, the energy companies and others classed as statutory undertakers are required to report. Of course the communications companies do not fall into the category of statutory undertakers, but they are, as I am sure your Lordships would agree, just as important to this country’s resilience to the impact of climate change.

Amendment 14A tries to correct what I believe is the erroneous omission of the communications companies from the Climate Change Act reporting requirement by asking Ofcom to seek reports from such companies, whose resilience to floods, heatwaves and storms is important. The Secretary of State will prescribe what information he needs to know, so Ofcom is not required to become an expert in climate change impacts and their adaptation. The proposal would not cover all the companies regulated by Ofcom but would leave Ofcom to judge which companies are the most important in terms of resilience to climate change impact.

Amendment 14B would enable Ofcom to use its existing information-gathering powers to require communications providers to supply the information required and would ensure that Ofcom could not just ask willy-nilly for excessive information. It makes it clear that the power would be subject to the restrictions in Section 132 of the Communications Act 2003, which says that demands for information must be proportionate.

I am absolutely certain that the Minister will resist this amendment, although I do not believe that that is because the Government do not want communications companies to have to report on whether they are resilient in the face of climate change. I believe that the Government want that; indeed, in response to the consultation about Ofcom’s powers, they confirmed that they believed that the industry should plan for the resilience challenges posed by climate change. The disagreement is really about how that can be achieved. In the discussions that have been taking place, the Government have proposed that these issues be addressed later, in the wider context of the new security and resilience requirements that arise as a result of the recent review of the EU telecoms framework legislation. The revision to this framework directive has only just been published. The timescale for transposition is unclear and, although I would hesitate to accuse the Government of fiddling while the UK floods, it feels a bit like that.

The Minister has meanwhile proposed a voluntary arrangement of the key players in the sector, which might be in place by the autumn. I believe that this is too important an issue to be left to a voluntary agreement with the industry to provide some unspecified information from unknown companies at some possible future date. Wisely, the Government have not accepted a voluntary approach with other key industries, so I do not believe that they should accept it with the electronic communications industry, which is vital to emergency resilience and the work of other parts of the critical national infrastructure.

This may be the wrong amendment. If it is, there are perhaps other ways in which the Government can give assurance on these points. Clause 2 of this Bill, which amends the Communications Act 2003, requires Ofcom to prepare reports on electronic communications networks and services matters, including preparations made by providers for responding to an emergency, the steps taken to assess the risks of different types of emergency and the steps taken to reduce those risks. Perhaps the Government might give guidance to Ofcom to ensure that the definition of an emergency includes not just immediate emergencies and resilience envisaged by the clause, but also the very likely medium-term causes of future emergencies such as the impacts of climate change. It should also include the risk assessment and resilience measures to be put in place by the communications networks and services to meet not just these immediate risks but the medium-term and longer-term climate change impacts. That piece of guidance to Ofcom might strengthen the position.

The ideal situation would be if the Government were to ponder on this amendment and bring forward one of their own, either at a later stage in this House or in another place. At the very minimum I ask the Minister to give assurances to noble Lords, and indeed to the public, that these vital communications companies will ensure that they are resilient to the impacts of climate change and that they will be required to report on that resilience, as the majority of other organisations and companies important to national climate change adaptation and resilience already have to do by law. I beg to move.

My Lords, we support in principle the amendments put forward by the noble Baroness. Indeed, it would be very strange if we did not support the amendments from these Benches. The noble Baroness has clearly spotted a gap in the Climate Change Act, which could be filled by this amendment. The Government are suggesting a voluntary agreement; I am not quite sure why—it is not entirely clear—but I urge them to take seriously what the noble Baroness, with all her experience in this area, is putting forward. These seem to be sensible suggestions and I very much hope that the Government will look seriously at either accepting the amendments or giving them further consideration as the Bill progresses.

My Lords, since Committee the Minister has been kind enough to write to a number of us about the matters raised by the RUSI report into the resilience of the communications networks, particularly first emergency responders and local authorities. The report pointed out many of the gaps. The Minister said in his letter that those were largely organisational gaps, but when I went back to the report I saw that the issue is a bit more far-reaching than that. I am grateful to the noble Baroness, Lady Young of Old Scone, for raising this issue, because I am little bit shocked that, as we worked our way through the Climate Change Bill in this House, we did not question the role of communications networks. It seems that, of all the statutory undertakers, those in charge of communications are right at the front line.

I, too, hope that the Government will be able to do more than say that they will put this back until they have something to transpose from the directive, because between now and then there are likely to be, on the basis of the last year or two, many more floods and many more weather emergencies. Nobody has better experience of these things, I would suggest, than the noble Baroness, who was of course in charge of the Environment Agency as the water was rising up towards that electricity substation. She has particular experience of exactly how fast these things can happen.

My Lords, I declare an interest as both a member of the board of the Environment Agency and a member of the Joint Committee chaired by the noble Lord, Lord Puttnam, who is no longer in his place, that carried out the pre-legislative scrutiny of the Climate Change Bill. It was clearly a fault of those who were scrutinising the Climate Change Bill that this issue was not included. Communications are absolutely vital not only in responding to the acute situation of an emergency caused by changes in weather conditions but in future-proofing the systems in terms of expected changes in temperature, soil composition as a result and so on. I hope that, even if the Minister does not completely accept the amendment moved by the noble Baroness—I nearly said “noble friend”, as she was once—the Government will accept that Ofcom should take on an equivalent function to the ones that Ofwat and Ofgem have in planning for resilience in the face of climate change. Whether or not that is done in this precise form, an indication from the Government tonight would be helpful.

My Lords, I am grateful to the noble Baroness, Lady Young, for introducing the amendment in a largely constructive way, although she referred to an “impasse”, which is not quite the word that I would have used. I hope that I can reassure her that, far from there being deadlock, the Government are extremely constructive and anxious on this matter.

I am grateful to other noble Lords who have participated in the debate for stressing the importance of resilience in the telecoms network. The Government regard resilience to the risks caused by climate change as being of the utmost importance. That is why the Bill introduces a requirement for Ofcom to provide a triennial report to the Secretary of State on electronic communication infrastructure and its resilience. That refers to overall resilience, but we are concerned about a high level of resilience for the UK telecoms networks. Climate change is, of course, significant, but we also need resilience to risks such as loss of infrastructure through malicious or terrorist attack, human error, accident, force majeure or whatever. By its very nature, that will include natural events or disasters, whether or not they are caused by climate change.

The noble Baroness, with her vast experience in her role in the Environment Agency, will know only too well that the Government have already acted on the issue of resilience. Following the Pitt review on flooding, a voluntary industry work programme to enhance resilience was put in place. That work has been going on for a considerable time. As she also knows, we also have the Flood and Water Management Bill, which we will have the greatest pleasure in debating in Committee in a couple of weeks—indeed, I gave an assurance at Second Reading that we would be considering these matters in some detail.

The necessary resilience of our telecoms network is of great importance. Far from the Government being obstructive, we are greatly exercised, not just through the promptings of the noble Baroness but because of the views of others who are concerned about climate change. We are concerned about resilience and we are taking action.

It is important to consider resilience as widely as possible. I do not want to risk detracting from all the existing work to enhance resilience to other risks by introducing different sets of reporting requirements on different risks. At this late stage it would also be unwise to include further onerous blanket requirements across the entire sector when we have not consulted it on that. There is a requirement on Ofcom to report on and play its part in guaranteeing effective overall resilience to any threat to our system. In the report to Parliament, Adapting to Climate Change: Ensuring Progress in Key Sectors—2009 Strategy for Exercising Adaptation Reporting Power and List of Priority Reporting Authorities, published in November 2009, the Government committed themselves to engaging with industry on climate change adaptation. Discussions have been taking place with Ofcom on how to achieve a voluntary way forward on reporting on climate change adaptation matters.

Once we have a clear view on the impacts of climate change on the telecoms sector, we can explore with Ofcom how this can be incorporated within its triennial reports on resilience, to which I referred a few moments ago. Ultimately, should the impacts of climate change present a risk to the telecoms networks, reporting requirements on overall resilience are bound to reflect this, alongside all other risks that are of great moment. Creating a separate reporting requirement is not the most effective way of getting the industry to play its full part in mitigating the risks and tackling the problems.

We know that the telecoms sector takes resilience extremely seriously. After all, it is in its interests to ensure resilience to challenges that climate change may present in the same way as it does in relation to other risks. Providers voluntarily offer high levels of resilience through an all-hazards approach that is achieved through ongoing dialogue and close co-operation. This reporting requirement would undermine that overall approach that the House will appreciate we need. There are no data available demonstrating how the telecoms sector is at risk from climate change. To mitigate vulnerability we need further discussion and analysis with the industry, taking data into consideration. To create a new legislative reporting requirement would run counter to the light-touch legislation by which the sector is currently regulated. It would at the same time detract from the comprehensive approach to risk that it is in the industry’s interests to address and which the Government are pursuing vigorously.

I make the obvious point that, if the Committee on Climate Change wants to pursue these issues further in detail, of course the Government will respond constructively, but a comprehensive approach on resilience is necessary. I have said how the Government and the industry respond when a potential threat occurs. We have already seen that in the context of the response to the floods since 2007.

Although this Bill is largely the concern of the Department for Business, Innovation and Skills, which has real concerns about how regulation is enforced and developed with the industry, and although the DCMS inevitably has a great interest in many aspects of the Bill, I emphasise to the noble Baroness—I speak as one of the team of Defra Ministers—that the Secretary of State has taken a particular interest in this issue. He is all too well seized of the importance of climate change in relation to the telecoms industry, but it is not his view, nor the view of Defra as a whole, that this amendment and this specific form of reporting is necessary or desirable.

I therefore hope that the noble Baroness will withdraw her amendment. She has certainly presented an important case, but I hope that she will accept the assurances that the Government take the case seriously and are already addressing these issues, albeit in a different way from the one that the amendment enjoins. We believe that the amendment would somewhat frustrate the total picture that the Government are seeking to establish.

I thank the Minister for his answer, which was reassuring in some respects but not reassuring in others. I also thank the noble Lords, Lord Clement-Jones and Lord Whitty, and the noble Baroness, Lady Miller of Chilthorne Domer, for their support for the amendment.

I am glad that the Minister has indicated that the Government are taking this issue seriously, because it is a serious issue. However, I am a bit bemused by the idea that somehow requiring the communications companies to report would undermine the general approach that the Government are taking. It may undermine the general approach that the Government are taking to the regulation of the communications sector, but it seems to me that it would bring the communications sector entirely into line with the requirement by law to report on climate change adaptation that has been laid on all the other sectors that are important in national resilience. That does not therefore seem to me to be a killer blow to the amendment. If it is sauce for all the other geese, why is it not sauce for this particular gander?

Waiting for a clearer view on what the climate change impacts on the communications industries might be before deciding what to include in the triennial reports is probably a longer process than is necessary. As I said, all other sectors are required to report without the work on impacts necessarily having been gone through in detail. The whole point is to get the sectors to think for themselves about the impact of climate change on the resilience of their businesses and their services to the public and to get them to report back on their risk assessments and what they are doing about them. Spoon-feeding the communications industry in this respect seems to be out of line with the requirements that are laid on all the other sectors.

I am pleased that the Minister is saying that the triennial reports on resilience that Ofcom must provide will include the future long-term impacts of climate change, not just the immediate short-term definition of what an emergency is. However, that is not a view that Ofcom currently shares, so I will take up his invitation to come back at a later stage of our consideration of this Bill to establish why there seems to be a difference of view between the Minister and Ofcom about what these reports will legitimately cover. I beg leave to withdraw the amendment.

Amendment 14A withdrawn.

Amendment 14B not moved.

Amendment 15

Moved by

15: Before Clause 4, insert the following new Clause—

“Disclosure of information

An internet service provider may not disclose information which enables a subscriber to be identified to a copyright owner unless it is satisfied—

(a) that the process used by the copyright owner to procure evidence on online copyright infringement is legal and accurate, and that it has been appropriately employed;(b) a court is so satisfied; or(c) OFCOM is so satisfied.”

My Lords, in moving Amendment 15, I shall speak at the same time to Amendment 31. The Minister knows what this is about; we talked about it extensively in Committee. It seems to me that now is the time to take all the good intentions expressed all the way round the House and reach some sort of conclusion.

The purpose of this bit of the Bill, which we are just coming to, is to produce a sensible and civilised way whereby copyright owners can effectively enforce their copyright in a situation where the theft of copyright material has got seriously out of hand. We have made a lot of progress in this Bill, and with the amendments which the Government will bring forward, to produce that effect—something which will start off by being educative, and which will be punitive only after very reasonable procedures have been gone through. I hope very much that it will be effective.

Unfortunately, there have sprung up what I would describe as abuses. They may not technically be abuses, but they are certainly abuses of current practice so far as the citizens subject to them are concerned.

The game works roughly like this. You find an owner of an obscure bit of copyright that is available on the internet, preferably something pornographic and extremely nasty. You then employ a piece of software whose innards have never been exposed to the public, or tested in a court, to produce allegations that a particular set of IP addresses have made that copyright material available for upload over the internet. You then take tens of thousand of these cases to court and, using a Norwich Pharmacal order, obtain the details of the relevant subscribers from their internet service providers. You then write them a letter, which has basically three elements to it. First, it says: “You have committed this transgression of copyright”. Secondly, it says: “If you force us to take you to court, we will pursue you for a very large sum of money”. Thirdly, it says: “But we offer you this opportunity to settle for a mere £500 or £800”—or whatever the figure is—“and we will forget all about the perils of court and the vast sums for which you might otherwise be liable, because basically we are very good people, and all that we are seeking to do is to protect our copyright”.

This scam works because of the impossibility of producing proof against this allegation. How can you prove that you did not do this thing? You have an internet connection, and they say that it was done over that internet connection. It is no good producing your computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to use the telephone, let alone the internet, because, nevertheless, you have an internet connection and they say that it was abused. It is extremely difficult to produce evidence to gainsay this. All you can do is deny it, and one of the things that they say in the letter is, “Don’t bother to deny this without producing evidence that you didn’t do it”.

The result is that a very large people of number pay up, as a result either of the first letter or of the letters that follow. As far as I can discover, despite the tens of thousands of orders that have been granted, the solicitors involved have never taken a seriously contested case to court, because getting money out of people on the basis of the compromise offer is actually what is lucrative.

There may or may not be truth at the root of this, but this is a route for obtaining redress for copyright abuse which has been neglected, and with good reason, by the reputable end of the copyright industry. It produces a great deal of distress and indignation among many thousands of our citizens, and it ought not to be allowed to continue now that we are producing a better and proper route for redress for copyright owners, particularly where we are looking at volume cases—where we are looking at large volumes of infringement. That is exactly what the Bill aims to deal with.

My Amendments 15 and 31 look at a couple of possible ways of dealing with this. We could act on the internet service providers and give them a defence against revealing the details of their subscribers—we could say that either they or a court must be satisfied that a fair and accurate process was being used—or we could give the court the power to say, “No, here is this Act which provides a proper remedy for copyright owners who are suffering from the sort of abuse which is alleged in these letters. Let them use that route because that is fairer for consumers and a fairer basis on which to operate, which is what Parliament has decided, and lay off the techniques which are being used to extract money at present”.

Mostly, to date, one firm has been involved, but now a second firm is getting involved. The news of how lucrative this is has spread. If we do not do something about it, we will have more firms creeping into this business. There is plenty of copyright in unpleasant material. There are plenty of opportunities for these firms to make money. It is high time that we do something effective to put a stop to it. I do not mind which of the amendments the Government choose. I suspect that if I was forced to choose between them, I would choose the one put forward by the Liberal Democrats. It might not be perfectly drafted, but if we get it into the Bill now, the Government will have an opportunity to redraft it for Third Reading. But this must not be allowed to continue. I beg to move.

My Lords, I shall speak to Amendment 16, which is grouped with the amendments tabled by the noble Lord, Lord Lucas. There are many ways to skin a cat. Our amendment is aimed at solving the problem to which the noble Lord referred. In Committee, we discussed this matter. From the letters that noble Lords on all sides of the House have received, it is apparent that there is a problem with the activities of one particular law firm. As the noble Lord, Lord Lucas, said, we think that now two law firms are involved. I am very grateful to Which? for drawing to our attention, apart from the letters that we have received, the problems of which it is aware.

The Minister has been helpful in circulating to all of us the information that he has received from the Law Society’s regulatory body. This information indicates that the society is very alert to the practices of the law firms in question, as referred to by the noble Lord, Lord Lucas. There is a debate as to which of the approaches—the approach of the noble Lord, Lord Lucas, or ours—is the correct way of dealing with this. He is right that this gives the Minister the opportunity to get into the Bill something that can deal with the matter.

Perhaps I may put into one sentence—when people say that, they usually go on to speak for five minutes—what I feel is the view on these Benches. As noble Lords will have realised, I have always been hugely sympathetic to the interests of the creative industries. I completely buy the argument that we cannot allow our creative industries to suffer from the illegal downloading of material. However, the creative industries have spent a large number of years trying to get their act together in relation to what they want the Government to do. They have eventually arrived at that point, and we now have the proposals for the code and the technical measures. However, the creative industries cannot have it both ways. They cannot have the huge amount of effort which Ofcom, the Government and everyone else will be putting into getting the technical measures into place—let alone the costs which will be incurred both by the ISPs and by themselves—while at the same time saying, “But we also want to reserve the right to send letters to people through our lawyers saying that if they do not pay their £500, there will be frightful consequences”. Under this amendment, if the copyright owner believes that there is a breach, it will have to go through the technical measures rather than go to court.

My Lords, the House is greatly indebted to the noble Lord, Lord Lucas, for tabling a number of amendments in Committee to which the Government have now responded. However, I wonder whether he does not feel that, on reflection, and on a close reading, government Amendment 100 largely deals with all the problems that he has raised, including the prospect of costs being awarded to the subscriber. That should be a sufficient deterrent to rogue firms of solicitors who try to make a quick buck by writing threatening letters.

The Government have given every evidence of having listened to everything that the noble Lord, Lord Lucas, said in Committee, and with which I largely agreed. The balance was too heavily tilted in favour of the copyright owners. However, that balance has been addressed by the Government’s later amendments. I am not sure that I see the point of looking for something extra at this point.

I greatly support the sentiments behind these amendments. Although I take the noble Lord’s point that Amendment 100 addresses this issue, it deals with it only in the context of a letter that has been raised within the confines of the Bill. The point being made by the noble Lord, Lord Lucas, is that law firms and others could continue to send letters which are nowhere within the ambit of the Bill and which are not controlled under it. So they can put whatever they want into those letters. They could even refer to the letter in a way that would give the illusion that this legislation is involved.

This may sound like a different point, but it is not. When we had the confusion over people asking for information about subscribers’ telephone details, we ended up having the Regulation of Investigatory Powers Act to try to consolidate the position. People did not know whether requests were genuine. It would be a big loophole if we left in the Bill a system that could give rise to abuse. We now have a chance to knock this on the head once and for all. Then we can do everything in a proper and consolidated way, and we will know where we stand.

Will the Minister give us an indication of his conversations with the Law Society? In what ways or by what means can the Law Society prevent its members acting in a way that hardly appears to be in accordance with the normal duties of a solicitor?

My Lords, I was going to make a similar point. We have concerning evidence, as we all said in Committee, that one and now apparently two so-called solicitors are behaving in this way. Clearly this has to cease. Equally, there has recently been legislation and the establishment of new bodies which are just coming into effect. I am less keen to put something into the Bill immediately, as it will not necessarily be the right answer to the problem. I am a little more cautious about it at this stage. It has to be dealt with and is disgraceful. If these firms really are law firms, they are bringing their whole profession into disrepute.

My Lords, the Government would be wise to take on board a provision such as this one if they want their other measures to receive a degree of acceptance if not enthusiasm. As my noble friend the Minister knows, I am deeply sceptical about the approach of this Bill. One of the reasons for that scepticism—and one of the reasons detected by the rather small group of consumers who actually understand these things—is an awareness of these kinds of abuses being committed under the present system by the rights holders who go to court and, even more diabolically, by some of their legal representatives. Acceptance of the future system proposed in the Bill would be aided if these abuses were cleared out of the existing system.

With due respect to my noble friend Lord Gordon, Amendment 100—with which there will be some difficulties anyway—does not address this issue because it is a post facto situation involving someone who has gone through the technical measures and procedures in the Bill. The abuse addressed in the amendment put forward by the noble Lord, Lord Lucas, involves the present system of going through the courts. That has given some rights holders and their representatives a pretty poor reputation among those who ought to be enthusiastic consumers of their output. This has in part soured discussion about the objective the Government are trying to achieve in the Bill. I hope that one of these amendments appeals to the Government—it ought to. If not, the Government ought to come up with one that deals with this very serious abuse once and for all.

My Lords, I rise very briefly to support the amendment of my noble friend Lord Razzall, signed by me as well.

On these Benches we are very pleased to see that the House is generally much more sympathetic to amendments of this nature. Obviously, they have been redrafted to be less exclusive in terms of ousting the courts, but as the Minister himself in his letter to us said:

“There will be occasions where the notification system is not appropriate, and it is important that we allow rights holders some flexibility, rather than tie the hands of the entire creative industries due to the possible poor conduct of some isolated parties”.

We took that on board in formulating these amendments. Clearly, we are very strong supporters of the system of graduated response, which as the noble Lord, Lord Lucas, said is being considerably improved as a result of amendments to the Bill. However, in the mean time we learn of new entrants to the hall of infamy, such as Tilly Bailey & Irvine—the second law firm which I do not think anybody has mentioned in addition to ACS:Law. We also know more about the firm responsible for the investigations, Logistep. As my noble friend mentioned, the activities of these two law firms and Logistep are an embarrassment to the rest of the creative rights industry. We have seen more letters since Committee stage which demonstrate the methods being used by these law firms, which are of a threatening nature—some six or so pages as a first letter is grossly disproportionate.

I am delighted to be able to quote for the noble Lord, Lord Puttnam, the paragraph that the Solicitors Regulation Authority has sent to both me and the Minister in more or less identical terms:

“We appreciate the impact that receiving letters from ACS:Law is having on individuals, and the need to bring this matter to a conclusion as soon as we are able. However, we have to undertake a thorough investigation to ensure the right outcome in the public interest”.

It has assured several noble Lords that it will keep us informed of progress.

With respect, I mention to the noble Lord, Lord Gordon, that Amendment 100, which he talked about, is on a wholly separate issue—appeals against technical measures—and does not cover the matter in hand.

We are pleased that the SRA has said that it will deal with this with dispatch. However, we feel something in the order of the amendments tabled by the noble Lord, Lord Lucas, or those in the name of my noble friend and myself is necessary to remedy this. It is a considerable problem for many people up and down the country and will remain so unless we make sure that the code almost invariably applies in the first instance.